Droning Around

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Droning Around: How the FAA’s Lethargic & Haphazard Regulation of
Commercial Small Unmanned Aircraft Systems is Obstructing Economic Growth
Nathan Charles Pitluk
Abstract:
The focus of this article is to give an overview of U.S. regulation of unmanned aircraft
systems vehicles (“UAS”), commonly known as drones. In addition to generally discussing
commercial UAS regulations in the U.S. and its policies, this article will provide a quick overview
of other international regulations of commercial UAS regulations. These international regulations
will highlight the U.S.’s current standing within the international race to drone supremacy. This
comparison will allow us to understand where the U.S. can gain ground and capture what is poised
to become an $82 billion dollar industry.
Introduction
The benefits of drone power can provide a number of creative and efficient solutions for
citizens and businesses throughout the country. However, some people fear the rise of the drone.
In fact, the word drone has negative connotations, synonymous with terminators flying over us
with bombs or spy on our everyday lives. A different picture needs to be painted for the general
public, a shifted thinking from a future where a drone’s greatest role is a machine designed to kill
and spy. The potential for innovation and economic growth far outweigh any science fiction fears.
The potential uses of drones should excite the public and spark the imagination and ingenuity of
the American people. Automated machines are already a robust part of the commercial setting,
helping manufacture goods and sort inventory for entire warehouses. It is doubtful anyone fears
the machine that constructed the car they drive every day, and yet, once the machines become
mobile, free to roam the earth, the end is near. These fears must subside. With a drone industry

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that is projected to earn more than $82.1 billion in the next decade, the U.S. cannot afford these
fears.1
As unmanned aircraft systems take to the skies, accept your new drone overlords and all
they bring to help solve a number of economic and infrastructural issues.
Imagine the possibilities and freedom that unmanned aircraft could bring to the world.
Many logistical hurdles the U.S. faces could be alleviated or cured, including fewer trucks on the
road, greater crop yields, and faster internet. And that is only the beginning. When the Federal
Aviation Administration (“FAA”) pulls back its tenuous rules and haphazard policies and the
public freely gets to use this technology, who knows what innovative uses the general public can
discover. But to get there, the U.S. will need to traverse unstable legal landscapes. The FAA has
been slow to enact regulations that delineate the requirements for operating commercial unmanned
aircraft systems (UAS) in the national airspace system (NAS).2
Because of this lethargic
rulemaking Congress added a UAS section to the FAA Modernization and Reform Act, mandating
that the FAA integrate civil unmanned aircraft systems by September 30, 2015.3
But, the FAA’s
slow and unsteady approach is not the only problem. States have taken matters into their own
hands, proposing regulations aimed at curbing police surveillance and protecting privacy rights.4
While privacy is an important constitutional right, these regulations pose another hurdle for
integration of UAS into the national airspace. The U.S. needs to tread a careful line between
1
Darryl Jenkins & Bijan Vasigh, The Economic Impact of Unmanned Aircraft Systems Integration in the
United States, AUVSI, at 2 (Mar. 2013), available at
http://higherlogicdownload.s3.amazonaws.com/AUVSI/958c920a-7f9b-4ad2-9807-
f9a4e95d1ef1/UploadedImages/New_Economic%20Report%202013%20Full.pdf
2
See Joan Lowy, U.S. Lags as Commercial Drones Take Off Around Globe, HUFFINTONPOST.COM (Mar.
17, 2014), http://www.huffingtonpost.com/2014/03/17/us-drones-_n_4978768.html.
3
See FAA Modernization and Reform Act of 2012, PL 112-95, 126 Stat 11 §323 (2012).
4
See Allie Bohm, Status of Domestic Drone Legislation in the States, ACLU (last updated June 30,
2014), https://www.aclu.org/blog/technology-and-liberty/status-2014-domestic-drone-legislation-states
(“2014 legislation introduced in 36 states, active in 22 states, and enacted in 4 states. Overall (2013-
2014): laws enacted in 13 states.”).

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protecting those rights and catering to fear mongers, a difficult hurdle with advances in
surveillance technology and the estimated 15,000 drones in the sky by 2020 and 30,000 by 2030.5
Alas, whenever there is a new technology there is always a potential for abuse and misuse.
Although computer systems are routinely compromised, it has not stop Americans from trusting
them with all of their personal information. Do you think that phone in your pocket holds less
personal information than a drone with a camera flying 100 feet above your home? Many of us,
however, could not live without computers and smart-phones – they have changed the world. Few
would choose to change course and reverse the socio-economic benefits they produced. Drones
will have a similar impact. Just as smart-phones put computers in the hands of the public, drones
will give the public greater access to the national airspace. But how should the FAA integrate
unmanned aircraft systems into the national airspace? Are other countries integrating UAS faster
or more efficiently than the U.S.? While countries like China, Australia, Canada, and the United
Kingdom are ahead and started their UAS integration, the U.S. still has the potential to take the
lead. “Because [UAS] are inherently different from manned aircraft, introducing UAS into the
nation’s airspace is challenging for both the FAA and aviation community.”6
However, difficulty
is not an excuse, and the FAA’s delay in promulgating a clear regulatory regime for commercial
UAS is detrimental to economic growth in a period of time where research and expansion are key
to capturing the drone market. It’s time for America to regain its imagination, open the door, and
take the lead with regulations, not wait to be left in the dust. The U.S. may be behind in its
5
FAA Aerospace Forecast Fiscal Years 2010-2030, FED. AVIATION ADMIN (last visited Oct. 22, 2014),
available at http://www.faa.gov/data_research/aviation/aerospace_forecasts/2010-
2030/media/2010%20Forecast%20Doc.pdf.
6
Fact Sheet – Unmanned Aircraft Systems (UAS), FED. AVIATION ADMIN (Jan. 6, 2014),
http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=14153.

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regulations, but it could take the lead with full integration of commercial UAS and an open mind
towards autonomous aircraft systems.
Discussion
The Economic Impact of the Drone Market
The most concerning issue with the FAA’s delay in integrating UAS is the potential market
effect on UAS. UAS integration into the NAS will have a tremendous impact on the U.S. economy,
totaling “more than $13.6 billion in the first three years of integration and will grow sustainably .
. . to more than $82.1 billion between 2015 and 2025.” 7
The integration of UAS will be more than
just a jump start, there will be continuous growth and “[b]y 2025, total job creation is estimated at
103,776.”8
Not only will UAS be a multi-billion dollar industry, “[i]ntegration into the NAS will
create more than 70,000 new jobs in the first three years.”9
Many of these jobs will be tied to the
manufacturing of drones and “[t]he manufacturing jobs created will be high paying ($40,000) and
require technical baccalaureate degrees.”10
Outside of helping the infrastructure through delivery
logistics, other industries could benefit, including agriculture, weather monitoring, law
enforcement, disaster support, film, construction and environmental surveying,11
and even internet
services.12
7
Jenkins & Vasigh, supra note 1.
8
Id.
9
Id.
10
Id.
11
See Joseph Dussault, 7 Commercial Uses for Drones, BOSTON.COM(Mar. 12, 2014),
http://www.boston.com/business/2014/03/14/commercial-uses-for-
drones/dscS47PsQdPneIB2UQeY0M/singlepage.html; see also Jenkins & Vasigh, supra note 1.
12
Facebook wants to fly huge unmanned aircraft for months or years at a time that beam down faster
internet than satellites higher above. These planes would fly higher than commercial passenger aircraft.
Connecting the World from the Sky, FACEBOOK (last visited Oct. 22, 2014), available at https://fbcdn-
dragon-a.akamaihd.net/hphotos-ak-ash3/t39.2365-6/851574_611544752265540_1262758947_n.pdf.

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On the verge of becoming a booming industry, it is hard for anyone to ignore the potential
impact. Drone integration should be a topic for 2016 political candidates across all tiers of the
political landscape, state and federal. States will need to decide between strict privacy rights
against UAS and greater tax revenues given “[t]ax revenue to the states will total more than $482
million in the first 11 years following integration (2015-2025).”13
These numbers are staggering
in their amount and speed of growth. However, the FAA needs to implement integration
immediately and be permissive in flight certification and authorization to fully realize these
potential gains. “Every year that integration is delayed, the United States loses more than $10
billion in potential economic impact. This translates to a loss of $27.6 million per day that UAS
are not integrated into the NAS.”14
What Drones are We Talking About?
Before discussing the implementation of unmanned aircraft systems into the national
airspace, it is important to discuss the appropriate terminology. The FAA established the National
Airspace System (NAS) which is “made up of a network of air navigation facilities, ATC facilities,
airports, technology, and appropriate rules and regulations” that define where and how an aerial
vehicle can be operated within that space.15
This NAS framework is where the integration of
unmanned aircraft systems (UAS) will occur. The acronyms UAS, UAV (unmanned aerial
vehicles), RPA (remotely piloted aircraft), and RPAS (remotely piloted aircraft systems) are all
used interchangeably.16
While used interchangeably, the public simply knows them as drones.
13
Jenkins & Vasigh, supra note 1
14
Id.
15
National Airspace System Overview, FED. AVIATION ADMIN. (last visited Oct. 22, 2014, available at
https://www.faa.gov/air_traffic/nas_redesign/regional_guidance/eastern_reg/nynjphl_redesign/documenta
tion/feis/appendix/media/Appendix_A-National_Airspace_System_Overview.pdf.
16
Richard Whittle, DON’T SAY ‘DRONES,’ Beg Drone Makers, BREAKING DEFENSE (Aug. 14, 2013),
http://breakingdefense.com/2013/08/dont-say-drones-beg-drone-makers/2/.

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UAS is the neutral term Congress and the FAA selected to use for the more colloquial, all-
encompassing drone.17
However, “drone” has negative connotations.18
The Association for
Unmanned Vehicle Systems International (AUVSI) and the military would have us believe drone
needs to be avoided because of the negative connotations connected to the Predator drones and the
deadly strikes drones carry out.19
While it can be difficult to rehabilitate an image once sullied, the
word drone is not going anywhere.20
As this article will highlight, the true potential of DRONES
has not been tapped and their contribution to society will far outweigh their use in war. Hopefully,
its future successes will define its image. For the remainder of this article, UAS and drones will be
used interchangeably.
The focus of this article is small unmanned aircraft systems (sUAS), which are UAS below
55 pounds.21
Small unmanned aircraft are, as the FAA acknowledges, the fastest growing sector
of UAS in civil markets and commercial industries “because of their versatility and relatively low
initial cost and operating expenses.”22
One of the biggest areas of potential growth is the delivery
industry; Google, Amazon, and delivery companies like FedEx, UPS, and DHL are currently
17
E.g., FAA Modernization and Reform Act of 2012, PL 112-95, 126 Stat 11 §333 (2012) Unmanned
Aircraft Systems, FED. AVIATION ADMIN. (Sept. 25, 2014), http://www.faa.gov/uas/.
18
See Konstantin Kakaes, Banishing the Word Drone Won't Solve the Unmanned Vehicle Industry's Real
Problems, SLATE (Aug. 16, 2013),
http://www.slate.com/blogs/future_tense/2013/08/16/banishing_the_word_drone_won_t_solve_the_uav_i
ndustry_s_real_problems.html; Nidhi Subbaraman, Don't call 'em drones: The wide world of unmanned
flying machines, NBC NEWS (Mar. 15, 2013), http://www.nbcnews.com/tech/innovation/dont-call-em-
drones-wide-world-unmanned-flying-machines-f1C8857699; Richard Whittle, DON’T SAY ‘DRONES,’
Beg Drone Makers, BREAKING DEFENSE (Aug. 14, 2013), http://breakingdefense.com/2013/08/dont-say-
drones-beg-drone-makers/2/.
19
Richard Whittle, DON’T SAY ‘DRONES,’ Beg Drone Makers, BREAKING DEFENSE (Aug. 14, 2013),
http://breakingdefense.com/2013/08/dont-say-drones-beg-drone-makers/2/.
20
Id.
21
FAA Modernization and Reform Act of 2012, PL 112-95, 126 Stat. 11 §331 (2012)
22
http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=14153.

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developing their own sUAS to make deliveries to customers.23
For example Amazon’s current
sUAS plan predicts that it will be able to transport products that weigh up to five pounds, which
encompasses 86% of their inventory.24
In addition to the terminology, a framework of aviation law
is necessary to understand the origins of aircraft regulation, the differences between regulating full
sized aircraft and sUAS, and where FAA regulations and policies stand in this new era of aviation.
The Legal Framework
The Common Law and the Birth of Airspace Regulation
Every first year law student has likely heard the common law maxim of cujus est solum,
ejus est usque ad coelom, which means he who owns the soil owns upward unto heaven.25
This
common law maxim was adopted by America,26
but came into legal contention when aircraft
became prevalent in the United States during the early 1900’s. With an influx of aircraft taking to
the private skies, the property owners took to the courts, seeking to defend their property rights
23
It is important to note that these companies are not testing their sUAS deliveries in the U.S. and usually
not disclosing where. See Alexis Madrigal, Inside Google's Secret Drone-Delivery Program, THE
ATLANTIC (Aug. 28, 2014), http://www.theatlantic.com/technology/archive/2014/08/inside-googles-
secret-drone-delivery-program/379306/?single_page=true; Ben Popper, UPS researching delivery drones
that could compete with Amazon's Prime Air, THE VERGE (Dec. 3, 2013),
http://www.theverge.com/2013/12/3/5169878/ups-is-researching-its-own-delivery-drones-to-compete-
with-amazons?_ga=1.257182667.1502360652.1410971211; Josh Lowensohn, FedEx laughs off delivery
drones while developing its own, THE VERGE (Dec. 18, 2013),
http://www.theverge.com/2013/12/18/5225152/fedex-laughs-off-delivery-drones-while-developing-its-
own; Ben Popper, Europe's largest parcel service, DHL, shows off a test flight of its delivery drone, THE
VERGE (Dec. 9, 2013), http://www.theverge.com/2013/12/9/5192430/europe-largest-parcel-service-dhl-
shows-off-a-test-flight-of-its.
24
Paul Misener, Amazon Prime Air - Exemption/Rulemaking (July 9, 2014), available at
http://www.regulations.gov/#!documentDetail;D=FAA-2014-0474-0002 (Amazon.com’s petition to be
exempt from certain FAA regulations to “conduct additional research and development for Prime Air . . .
.”) (hereinafter “Amazon Petition”).
25
Major Walter S. King, The Fifth Amendment Takings Implications of Air Force Aircraft Overflights
and the Air Installation Compatible Use Zone Programs, 43 A.F. L. Rev. 197, 198 (1997); see also
Restatement (Second) of Torts § 159 (1965) (comment g).
26
Id.

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with trespass and nuisance claims.27
U.S. courts scrambled to piece together a coherent legal
framework to tackle these novel legal issues.28
Congress responded in 1926 with the Air Commerce Act (“ACA”).29
The ACA’s purpose
was to “encourage and regulate the use of aircraft in commerce and for other purposes.”30
Although
private rights and safety were a concern, the ACA focused on economic growth in a young
industry, specifically “[t]o study the possibilities for the development of air commerce and the
aeronautical industry and trade in the United States.”31
The FAA can learn from the ACA. The
ACA expressly stated that all “interstate or foreign air commerce” meant air commerce between,
within, and through the airspace of any state, territory, or place outside.32
Congress did not coddle
or suppress the expansion of the aviation industry, but welcomed the industry by opening the door
and learning from and fixing mistakes along the way. Through the ACA and later amendments,
the United States established “complete and exclusive national sovereignty in the air space . . . .”33
The ACA did not define the scope of air rights, which forced the Supreme Court to define
them in United States v. Causby.34
The issue presented was whether the landowner’s property was
taken under the Fifth Amendment by frequent flights of military aircraft over the landowner’s
property at low altitudes.35
These planes took a path over his home, flying only about 60 feet above
27
Id. at 198.
28
Id.
29
Id. at 199 (much like Congress’s recent action ordering the FAA to integrate UAS).
30
Air Commerce Act of 1926, 69 Cong. Ch. 344, 44 Stat. 568, (1926).
31
Air Commerce Act §2(c).
32
Air Commerce Act §1.
33
United States v. Causby, 328 U.S. 256, 260 (1946) (internal quotations omitted).
34
328 U.S. 256 (1946).
35
Id. at 258.

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his home and barn, affecting the use and enjoyment of his land.36
The Court knew that landowners
were entitled to full use and enjoyment of their lands, stating they were entitled to at least the
“exclusive control of the immediate reaches” of their airspace.37
The Court held that the flights
constituted a taking because flights over private land may constitute a trespass if they are “so low
and so frequent as to be a direct and immediate interference with the enjoyment and use of the
land.”38
The Court reasoned that because continuous invasions of one’s airspace immediately
above the land could “limit the utility of the land and cause a diminution in its value,” the full use
and enjoyment of that land could not be realized and a trespass occurred the same as on the surface
of the land.39
The Court in Causby balanced the interests of property owners and the rights of public
airspace use granted by Congress. In the end, the Court protected real property rights, but the Court
also defined practical limitations of those rights, restricting landowners to the airspace they could
actually “occupy or use in connection with the land.”40
The Court declared that the immediate
reaches above the land are properly part of the landowner’s rights, but the airspace above that is
basically a public highway that is part of the public domain.41
Causby clarified the right to public
use of airspace while still carving out some protection for landowners.
The Creation of the National Airspace System
36
Id. (the landowner brought the complaint because multiple aircraft would pass over his property
causing noise and glare from lights. The family living there lost sleep and their farm suffered, losing
about 150 chickens that died from fright).
37
Id. at 264.
38
Id. at 266.
39
Id. at 262, 265.
40
Id. at 264.
41
Id. at 266.

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In 1958, the Federal Aviation Act established the FAA and delegated the authority to
regulate the use of the U.S. airspace.42
The FAA started by creating the National Airspace System
(NAS) to build a safe and efficient airspace for civil, commercial, and military aviation and protect
the public and property on the ground.43
The NAS created classes of airspace, which the air traffic
control is required to maintain;the controlled airspaces are A, B, C, D, and E regulate the airspace
between 60,000 feet and 700 feet.44
Below 700 feet is uncontrolled, class G airspace.45
Class G
airspace is not under air traffic control’s authority, but is still within the authority of the FAA.46
Class G airspace, especially under 400 feet, is the regulatory battle ground for sUAS operation and
use.47
FAA UAS Policies, Rules, and Regulations
The FAA’s 2007 Notice of UAS Policy
In 2007, the FAA issued a notice of their policy regarding clarifying the classification of
different UAS uses and declaring the operational requirements under those classes.48
The policy
discusses three types of UAS uses: public, civil, and recreational use of model airplanes.49
This
policy was the first time the FAA acknowledged the growing UAS industry.50
However, that
acknowledgement was the extent of the FAA’s contribution to UAS growth. The FAA went on to
42
National Airspace System Overview, FED. AVIATION ADMIN. (last visited Oct. 22, 2014, available at
https://www.faa.gov/air_traffic/nas_redesign/regional_guidance/eastern_reg/nynjphl_redesign/documenta
tion/feis/appendix/media/Appendix_A-National_Airspace_System_Overview.pdf.
43
Id.
44
Id.
45
Id.
46
Id.
47
http://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=14153 (“UAS must be flown . . . less than
400 feet above the ground . . . inside Class G (uncontrolled) airspace and more than five miles from any
airport or other location with aviation activities.”).
48
Unmanned Aircraft Operations in the National Airspace System, 72 FR 6689-0, at 6690 (2007).
49
Id.
50
Id. at 6689 (“[Civil UAS] is a quickly growing and important industry.”).

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declare that UAS operations in the National Airspace System would require “specific authority.”51
While some people operated under the assumption that UAS fell into the model aircraft category,52
the FAA shot down those assumptions stating
“The FAA recognizes that people and companies other than
modelers might be flying UAS with the mistaken understanding that
they are legally operating under the authority of AC 91-57.53
AC 91-
57 only applies to modelers, and thus specifically excludes its use
by persons or companies for business purposes.”54
Because UAS operations needed specific authority, the FAA set forth the means to obtain that
authorization for private, non-recreational use:
Under FAA policy, operators who wish to fly an unmanned aircraft
for civil use must obtain an FAA airworthiness certificate the same
as any other type aircraft. The FAA is currently only issuing special
airworthiness certificates in the experimental category.
Experimental certificates are issued with accompanying operational
limitations (14 CFR 91.319) that are appropriate to the applicant's
operation. The FAA has issued five experimental certificates for
unmanned aircraft systems for the purposes of research and
development, marketing surveys, or crew training. 55
While the FAA established a means for obtaining authorization to operate civil UAS, only five
had been issued and the FAA expressly prohibited experimental certificates as a source for
compensation or hire.56
The FAA took a cautious approach, assessing “the feasibility of creating
a different category of unmanned ‘vehicles’ that may be defined by the operator's visual line of
sight and are also small and slow enough to adequately mitigate hazards to other aircraft and
persons on the ground,” but the FAA was uncertain whether sUAS would fit into an already
defined category, need to be a new category of aircraft, or even need a certificate of
51
Id. at 6690.
52
Id. (“[S]ome operators have used the [model aircraft advisory circular] as the basis for commercial
flight operations.”).
53
Id. (“[T]he FAA published Advisory Circular (AC) 91-57, Model Aircraft Operating Standards for the
purpose of providing guidance to persons interested in flying model aircraft as a hobby or for recreational
use.”).
54
Id.
55
Id. at 6689-90.
56
Id. at 6690.

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airworthiness.57
This policy laid dormant until the FAA used it as a basis to fine an individual for
reckless operation of a commercial UAS. The Pirker Decision
In 2011, the FAA tried to enforce its 2007 policy as an administrative rule. Raphael Pirker
operated a UAS over the University of Virginia’s (UVA) campus, recording footage of the UVA
campus that Lewis Communications had hired Pirker to shoot.58
From the footage, the FAA
determined that Pirker had operated the UAS in “a careless or reckless manner so as to endanger
the life or property of another,” violating the Federal Aviation Regulations (FARs).59
The FAA
fined Pirker $10,000 for operating a UAS in a dangerous manner, flying directly at a pedestrian,
through a tunnel with moving vehicles, below tree top levels, 15 feet above a UVA statue, 20 feet
above an active street with vehicles and pedestrians, within 25 feet of numerous UVA buildings,
under an elevated walkway between buildings, and within 100 feet of an active hospital heliport.60
Pirker appealed this fine to the National Transit Safety Board.61
The FAA tried to argue
that the UAS operated by Pirker was an aircraft under its regulatory regime.62
To prove that sUAS
fell under the definition of an “aircraft,” the FAA pointed to the 2007 Notice of Policy as a
substantive rule that set forth operational requirements for UAS and removed UAS from the
unregulated model aircraft category.63
The Administrative Law Judge (ALJ) rejected this argument
57
Id. (“The end product of this analysis may be a new flight authorization instrument similar to AC 91-57
[model aircraft], but focused on operations which do not qualify as sport and recreation, but also may not
require a certificate of airworthiness.”).
58
Fed. Aviation Admin. v. Pirker, CP-217, 2014 WL 3388631, at *6 (N.T.S.B. Mar. 6, 2014)(hereinafter
“Pirker Decision”); see sUAS News, Stunt Sheep Don t try this at home: Trappys $10k fine UVA video,
YOUTUBE (Oct. 15, 2013), https://www.youtube.com/watch?v=OZnJeuAja-4 (“Raphael Pirker (aka
Trappy) and Team Blacksheep are defending a $10,000 fine from the FAA based on the content of this
video.”).
59
Pirker Decision, supra note 58 at *1, fn. 3(“Part 91, Section 91.13(a) provides: No person may operate
an aircraft in a careless or reckless manner so as to endanger the life or property of another.”).
60
Id. at *6.
61
Id. at *1.
62
Id. at *3-*4.
63
Id.

13
and found that the FAA’s 2007 Notice of Policy was not a valid rule implemented through notice
and comment rulemaking.64
The ALJ found that Congress – through the FAA Modernization and
Reform Act of 2012 – expressly tasked the FAA with making rules for UAS, and Congress did not
recognize the FAA’s 2007 Notice of Policy as an effective rule.65
Additionally, the ALJ found that
Pirker’s UAS was not an aircraft, but instead, fell under model aircraft and was “subject only to
the FAA's requested voluntary compliance with the Safety Guidelines stated in AC 91-57.”66
The FAA is currently appealing the decision, but this decision sent ripples through the drone
industry and muddied the skies even further.67
As far as this decision was concerned, there are no
rules governing UAS operations and class G airspace is now the “Wild West.”68
The decision blurs
the line between what qualifies as a recreational sUAS use and what is commercial, and it gives
little reasoning as to why UAS are not aircraft. The purpose was commercial, but the model used
in these flights was relatively small. Did the size factor into the decision,69
and if so, would a
heavier weight factor into another ALJ’s decision? This uncertainty will keep the drone industry
in limbo until the FAA promulgates final rules for UAS that Congress mandated under the FAA
Modernization and Reform Act of 2012.FAA Modernization and Reform Act of 2012
Five years after the issuance of the 2007 Notice of Policy on UAS, Congress ordered the
FAA to promulgate a workable framework and final rules for commercial drone use.70
The FAA,
is tasked “to safely accelerate the integration of civil unmanned aircraft systems into the national
airspace system.”71
This effort was not to be undertaken alone though, and Congress wanted the
FAA to consult with representatives of the aviation industry, Federal agencies that employ
64
Id. at *4 (“Notice 07-01 does not, however, meet the criteria for valid legislative rulemaking, as it was
not issued as a Notice of Proposed Rulemaking (NPRM), and if intended to establish a substantive rule, it
did not satisfy the requirements of 5 U.S.C., Section 553(d), which requires publication of notice not less
than 30 days before the effective date.”).
65
Id.
66
Id. at *5.
67
See Bart Jansen, Federal appeal may define FAA authority over drones, USA TODAY (July 2, 2014),
http://www.usatoday.com/story/money/business/2014/07/02/ntsb-drones-faa-appeal-pirker/11793203/.
68
Id.
69
Pirker Decision, supra note 58 at *7 (Attachment 2: the UAS Pirker used weighed 41lbs 7oz).
70
FAA Modernization and Reform Act of 2012, PL 112-95, 126 Stat 11 §332(a)(1), (2012).
71
Id.

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unmanned aircraft systems technology in the national airspace system, and the unmanned aircraft
systems industry.72
The Act directs that the FAA rulemaking must give specific recommendations on minimal
“standards for operation and certification of civil unmanned aircraft systems;” require that “civil
unmanned aircraft systems include[] a sense and avoid capability;” and “establish standards and
requirements for operators and pilots,” including registration and licensing.73
In the plan, the FAA
must develop “the best methods to enhance the technologies and subsystems” so that civil UAS
will be operated in a safe and routine manner in the national airspace system.74
The FAA must
develop certification, flight, and air traffic control standards and create airspace designations for
simultaneous and cooperative manned and unmanned flight operations.75
The FAA must
implement its final rule and requirements in a “phased-in approach.”76
These requirements show
that Congress is seeking a comprehensive framework from the FAA.
Congress also wants the FAA’s UAS plan to be incorporated into the NextGen
Implementation Plan (NGIP).77
The NGIP is the FAA’s plan to upgrade the current aviation
methods of guiding and tracking aircraft to be more precise and offer more direct routes for aircraft
traveling from terminal to terminal.78
NextGen claims it will enhance flight efficiency by
improving safety, reducing delays, saving fuel and reducing the number of aircraft.79
However, the
72
Id. at §332(a)(2)(A).
73
Id. at §332(a)(2)(B).
74
Id. (Congress failed to clearly define what “methods” entail, especially confusing when it pertains to
technology and subsystems).
75
Id. at §332(a)(2)(G)-(H).
76
Id. at §332(a)(2)(C).
77
Id. at §332(a)(2)(I).
78
NextGen Update: 2014, FED. AVIATION ADMIN (Aug. 2014), available at
http://www.faa.gov/nextgen/media/NextGenUpdate2014.pdf.
79
Id.

15
NextGen Update: 2014 specifically states that UAS are not part of NextGen integration and the
NextGen Implementation Plan gives cursory acknowledgements that UAS could take advantage
of some NextGen systems.80
Not a great start to fulfilling the requirements Congress wanted for
integration.
In the meantime, Congress understands the UAS industry’s need to research and develop
so their programs can launch as soon as the FAA completes the final rules for integration. Under
Section 333, Congress granted the FAA the power to “expedite operational authorization,” which
arguably means that the FAA can make independent case-by-case judgments to “determine if
certain unmanned aircraft systems may operate safely in the national airspace system before
completion of the plan and rulemaking required.”81
In making this determination, the FAA must
determine two things: (1) whether that type of UAS will “create a hazard to users of the national
airspace system, or the public” based on “size, weight, speed, operational capability, proximity to
airports and populated areas, and operation within visual line of sight” and (2) whether a UAS
operator must obtain a certificate of waiver, certificate of authorization, or airworthiness
certification.82
This section was arguably a missed opportunity in Pirker for the FAA to argue that
Congress had given deference to the FAA. This section may provide the FAA the ability to declare
a use either safe or unsafe, but also omits any language that would allow the FAA to enforce their
determinations or bring a cause of action. Uncertainty in the requirements for UAS flight seems to
be holding many companies back from using sUAS in the national airspace system.
80
Id. (UASs aren’t a part of NextGen, but NextGen technologies will play a role in their implementation);
NextGen Implementation Plan, FED. AVIATION ADMIN (DATE), available at
http://www.faa.gov/nextgen/library/media/nextgen_implementation_plan_2014.pdf.
81
FAA Modernization and Reform Act, §332(b)(1).
82
Id. at §333(b)(1)-(2).

16
No matter what plan the FAA develops, the plan must “provide for the safe integration of
civil unmanned aircraft systems into the national airspace system as soon as practicable, but not
later than September 30, 2015.”83
However, the FAA Modernization and Reform Act deadline has
no teeth and can hardly be called a deadline because the act has no requirements for the agency to
take precise, measurable steps. There are no penalties for tardiness in the rule making process nor
any formal compliance mechanisms forcing the agency to act.84
The FAA’s lack of incentive to
develop a UAS framework with some haste will harm the UAS industry’s growth and the U.S’s
potential to grab a larger slice of the $82 billion dollar pie. Further, phasing-in this plan equates to
slowly implementing a protective approach, which is a mistake when the industry needs free reigns
to blossom.
Exemption Confusion: How to Obtain a Civil UAS Exemption
Immediately after the passing of the FAA Modernization and Reform Act of 2012
(FMRA), many held the belief that the only means for obtaining permission to fly civil UAS was
to apply for a “Certificate of Waiver or Airworthiness” (COA) or a “Special Airworthiness
Certificate” (SAC).85
FAA regulations provide various categories for which a SAC may be
granted, but civil UAS are only authorized as an experimental certificate.86
14 C.F.R. §21.193 sets
forth required information to be included in an application for an experimental certificate, such as:
the purpose for the aircraft, data (such as photographs) to identify the aircraft, any information
necessary to safe guard the public, the purpose of the experiment, the estimated number of flights,
83
Id. at §332(a)(3).
84
Wells Bennett, Unmanned at Any Speed: Bringing Drones into Our National Airspace, ISSUES IN
GOVERNANCE STUD. (Brookings Inst., D.C.), Dec. 2012, at 3, available at
http://www.brookings.edu/~/media/Research/Files/Papers/2012/12/14%20drones%20bennett/1214_drone
s_bennett.pdf.
85
Id. at 3.
86
Id. at 12.

17
the location of the flights, and 3D drawings and dimensions for the aircraft.87
If all the requirements
under 14 C.F.R §21.193 are met, the FAA may issue a certificate; however, certified UAS are
explicitly limited to research and development and cannot be used for commercial purposes.88
Determining the correct avenue to obtain civil UAS flight permission can be unclear. The
SAC approach, while still an important factor, is not the main avenue to obtain flight permission.
The main UAS page on the FAA’s website states that “[o]btaining a Special Airworthiness
Certificate in the experimental category for a particular UAS is currently the only way civil
operators of unmanned aircraft are accessing the NAS.”89
However, the FAA has been “working
with civilian operators to collect technical and operational data that will help refine the UAS
airworthiness certification process.”90
This cooperative effort has resulted in a more streamlined
procedure to petition for small UAS exemption under Section 333 of the FRMA.91
These
contradictory statements make this process difficult and frustrating, but at least the process has
recently been streamlined into less of a guessing game.
To comply with FMRA, the FAA established a UAS Integration Office that provides case-
by-case determinations of Section 333 UAS exemptions.92
On September 25, 2014, the FAA
87
14 C.F.R. §21.193 et. seq.
88
Special Airworthiness Certificate, FED. AVIATION ADMIN,
https://www.faa.gov/aircraft/air_cert/airworthiness_certification/sp_awcert (last updated Sept. 25, 2014).
89
Unmanned Aircraft Systems, FED. AVIATION ADMIN, https://www.faa.gov/uas/ (last updated Sept. 25,
2014).
90
Id.
91
Section 333, FED. AVIATION ADMIN, available at
https://www.faa.gov/uas/legislative_programs/section_333/ (last updated Sept. 25, 2014); see Unmanned
Aircraft Systems, supra note 89 (last updated Sept. 25, 2014) (“The FAA has been working for several
months to implement the provisions of Section 333 of the FAA Modernization and Reform Act of 2012,
‘Special Rules for Certain Unmanned Aircraft Systems,’ which will allow for commercial operations in
low-risk, controlled environments.”).
92
Petitioning for Exemption under Section 333, FED. AVIATION ADMIN,
https://www.faa.gov/uas/legislative_programs/section_333/how_to_file_a_petition/ (last updated Oct. 21,

18
provided a frame work to get approval for civil UAS operations, two years after the FMRA
passed.93
First, the new guidelines state that civil UAS operators have the “option” to obtain an
FAA airworthiness certification by applying for a SAC, but are not required.94
According to the
guidelines, the application must meet the requirements of 14 C.F.R. § 11.81.95
Pursuant to. §11.81,
the petitioner must include statements about which 14 CFR sections the petitioner wants exemption
from, the extent of relief sought, why granting it would be in the public interest, how public safety
would not be affected, and granting the FAA right to publish a summary in the Federal Register.96
The guidelines also set forth what information will be considered in the exemption
evaluation, including safety characteristics of the UAS and the operation/flight.97
This safety and
operational information must include information about: (1) design and operational characteristics;
(2) pre-flight inspections, maintenance, and repair; (3) the radio frequency to be used; (4)
qualifications required of any pilots in command, including their required certifications and
amount of experience; (5) the actual flight plan, including the proposed maximum operating speed
and altitude, minimum flight visibility, weather conditions, and proximity to airports; (6) “[t]he
UAS must be operated within visual line-of-sight (VLOS),” pursuant to FMRA § 333(b)(1); (7)
internal procedures requiring notification to the Flight Standards District Offices (FSDOs) prior to
2014) (these guideline likely only pertain to small UAS because large UAS will need to be fully
integrated into the other classes of the national airspace with manned aircraft).
93
Public Guidance for Petitions for Exemption Filed under Section 333, FED. AVIATION ADMIN (Sept.
25, 2014), available at
https://www.faa.gov/uas/legislative_programs/section_333/how_to_file_a_petition/media/section333_pub
lic_guidance.pdf (starting this article before Sept. 25, 2014, the author has firsthand knowledge of the vast
improvements of this entire process); see Attachment to comment Supplemental Guidance on the
Submission of Petitions, REGULATIONS.GOV (Oct. 15, 2014), available at
http://www.regulations.gov/#!documentDetail;D=FAA-2014-0397-0007.
94
Public Guidance for Petitions for Exemption Filed under Section 333, supra note 93.
95
Id. at 5.
96
14 C.F.R. §11.81 et. seq.
97
Public Guidance for Petitions for Exemption Filed under Section 333, supra note 93 at 5.

19
operation; and (8) “obtaining a Certification of Waiver or Authorization (COA) from the FAA Air
Traffic Organization.”98
“In seeking authorization, petitioners will require exemptions from
regulations with which they cannot fully comply.”99
The FAA also lists a number of regulations
that may need exemption, most important is the exemption from the Airworthiness Certification,100
but the list is not exclusive and each company must determine if their operations will require
further exemptions.101
After the submitting the petition for exemption,102
the entity seeking
exemption must file a separate COA application.103
The exemption process implemented by the FAA is tedious and uncertain. Hopefully, these
exemptions are not looked at with great scrutiny. Many companies are trying to work within the
national airspace system to test out their UAS, but also help the FAA determine the best course of
action for future regulation. For an example, in July 2014, Amazon petitioned the FAA for an
exemption to conduct research and development.104
The FAA needs to allow companies like
Amazon to conduct these test flights so that commercial integration into the NAS will be smoother
out the gate. The more exemptions the FAA allows, the more data it can gather to help develop its
rules.
98
Id. at 5-7.
99
Id. at 7.
100
14 C.F.R. § 21 et seq.
101
Public Guidance for Petitions for Exemption Filed under Section 333, supra note 93 at 7 (suggested
exemptions include: airworthiness certificate, preflight action, flight crewmember stations, flight
instructions, minimum safe altitudes, altimeter settings, fuel requirements, maintenance records, and
inspections).
102
Exemptions can be submitted online at regulations.gov.
103
Petitioning for Exemption under Section 333, supra note 93; see FAA UAS Civil COA Request, FED.
AVIATION ADMIN, available at
https://www.faa.gov/uas/legislative_programs/section_333/how_to_file_a_petition/media/FAA_UAS_Ci
vil_COA_Request.pdf (last visited Oct. 22, 2014).
104
Amazon Petition, supra note 24 (Amazon.com’s petition to be exempt from certain FAA regulations to
“conduct additional research and development for Prime Air . . . .”).

20
Issues with Implementation
Causby Issues
When Congress enacted the ACA in 1926, it had the ability to recognize the importance of
aircraft in the future of American industry and commerce, much like Congress did with the FMRA
in 2012. Many of the problems that arose at the birth of the aircraft are again repeating themselves
with UAS. Causby defined the right to public use of airspace while still carving out some
protection and use for landowners.105
The problem with the Causby holding is what happens in the
airspace between the public domain, i.e. the regulated airspace, and the immediate reaches private
property; where do we draw the line now that sUAS will operate mostly within this airspace? The
battle of property interest versus commerce played out in the early twentieth century, and round
two is happening within the sUAS argument. These drones have the ability to take off from any
location, hover over a target, and land almost anywhere, meaning they can easily enter someone
else’s property. This freedom of flight may constitute a trespass if they are “so low and so frequent
as to be a direct and immediate interference with the enjoyment and use of the land,” as the planes
were in Causby.106
The aircraft in Causby were loud enough to scare chickens to death and
continuous because of the property’s proximity to a military airfield.107
sUAS are much quieter –
most only as loud as a vacuum cleaner108
– than full blown aircraft and will likely not frequent
over the same property because of their ability to take off vertically.
105
See Generally United States v. Causby, 328 U.S. 256 (1946).
106
Id. at 266.
107
Id. at 259.
108
Sdporchet, DJI Phantom sound levels, YOUTUBE (Mar. 28, 2013),
https://www.youtube.com/watch?v=0WcbyhGjr70 (video with example of the noise level of a consumer
sUAS that is available for purchase).

21
There is also cause for worry given courts could hurt the sUAS industry by finding that
“the airspace immediately above the land would limit the utility of the land and cause a diminution
in its value.”109
Because many sUAS uses will often be within the immediate reaches of one’s land,
0 to 100 feet,110
the FAA needs to comment on the close proximity use to protect sUAS from a
new era air trespass doctrine. The FAA needs to comment on flights within 100 feet of the ground,
but should take a fairly hands off approach, allowing states to provide for stricter standards if they
choose. Close proximity flights should be allowed as long as they are conducted in a safe manner
and away from road and airways. As for direct damage caused by crashes, sUAS are relatively
light and any damage caused by them should be handled with civil claims and not be the subject
of over regulation. If low level flights of sUAS are strictly regulated, the full utility of sUAS will
never be realized.
Safety Concerns
There are two main safety concerns: air safety and link safety.111
Air safety is somewhat of
a concern because a 25 pound printer112
flying at 50 mph113
has the potential to cause serious injury
and property damage. Most sUAS will operate below 400 feet in uncontrolled, class G airspace,
making them a danger to public and property on the ground.114
Therefore, a major concern, and
109
Causby, 328 U.S. at 262.
110
100 feet should be a fair marker of within the immediate reaches of one’s land considering Causby
flights occurred at around 60 feet. Id. at 258.
111
Bennett, supra note 84 at 14-18.This writer refuses to address the ridiculous argument of terrorism by
drone. Model aircraft have been around for decades and any terrorist could have purchase a model aircraft
and equipped it as easy as a UAS. Any regulation aimed at terrorism will likely not help and hamper
industry growth.
112
See Rhett Allain, Physics of the Amazon Octocopter Drone, WIRED (Dec. 3, 2013),
http://www.wired.com/2013/12/physics-of-the-amazon-prime-air-drone (11.43 kg is a general estimate of
the Amazon drone weight).
113
Amazon Petition, supra note 24 at 1 (Amazon sUAS will make deliveries at about 50 mph).
114
National Airspace System Overview, supra note 15; Amazon Petition, supra note 24 at 5 (flights will
be below 400 feet).

22
one recognized by Congress in the FRMA, is to “ensure that any civil unmanned aircraft system
includes a sense and avoid capability.”115
Thus, “[p]erfecting the ability of unmanned aircraft to
stay clear of other aircraft and avoid collisions is a prerequisite to enabling their use in unrestricted
airspace.”116
Small aircraft do not transmit electronic signals to identify themselves with other craft
and are not equipped to receive that information making this a difficult requirement to meet.117
The main hurdle with sUAS and sense and avoid (SA) is that sUAS are usually so small
that SA is too heavy to be used in conjunction with its other purposes, e.g. delivering a package.
Thus, the FAA will likely take a restrictive approach to sUAS and only allow daytime flights
within the line of vision of the operator.118
This would be a mistake. The major barrier to wider
sUAS use is that current FAA rules require the pilot of a UAV to maintain line-of-sight contact
with the aircraft; if that limitation is removed, and UAVs are integrated into civilian airspace,
analysts expect the market to grow rapidly.119
Unfortunately, the FAA will likely implement a
line of site limitation to the force the sUAS industry into developing sense-and-avoid technologies.
Some companies are developing and testing technologies currently, such as echolocation that uses
mini acoustic sensors (like a bat) and micro-radar to name a few.120
115
FAA Modernization and Reform Act §332(a)(2)(A)(ii).
116
General Atomics Readies for 'Detect and Avoid' Demo, NFLYERS (Sep. 6 2014),
http://blog.nflyers.com/component/content/article/39-plane-reviews/727-general-atomics-readies-for-
detect-and-avoid-demo-.html.
117
Bennett, supra note 84 at 16.
118
Id.
119
Patrick Marshall, The tech that will make drones safe for civilian skies, GCN (Jul. 12, 2013),
http://gcn.com/articles/2013/07/12/drone-uav-sense-and-avoid-technologies-civilian-airspace.aspx.
120
Valerie Insinna, Sense-and-Avoid System for Hobby Quadcopters, NAT’L DEF. MAG. (July 3, 2014),
http://www.nationaldefensemagazine.org/archive/2014/July/Pages/Start-UpDebutsSense-and-
AvoidSystemForQuadcopters.aspx (“Acoustic sensors are a good fit for small UAVs because they are
inexpensive and work in most environments . . . .”).

23
However, the writer is not convinced that sense-and-avoid should be a concern for sUAS
at this time because a mid-air crash between two small flight objects is highly unlikely and civil
claims can adequately handle other damages. The only utility would be at sUAS delivery
distribution centers where multiple sUAS are coming and going, which will hopefully drive the
industry to develop these technologies to protect their own investments in aircraft. Further, a line
of sight limitation would destroy the delivery and surveying systems that many companies are
trying to implement, and stunt industry growth. Having a sUAS outfitted with GPS, auto-pilot, and
a camera to allow first person operation coupled with baseline safety procedures – e.g., staying at
least five miles away from the nearest airport – are more than adequate.
Additionally, there are concerns of link safety. There are concerns about hacking drones,
but the real danger is lost links.121
The link is the radio frequency that communicates the flight
commands to the drone, i.e. allows for the general control of the drone by an individual. Thus, if a
link is lost, a UAS would not be under any direct human control. Generally, if a link is lost, the
UAS should have “pre-programmed contingency procedures until the link is re-established or the
UAS ends the flight in a safe manner.”122
These procedures are often a hovering mode that keeps
the UAS in flight or a return home feature that flies to the starting location, but does not land.
However, there are different contingency procedures and the ability to program more; thus, the
concern for the FAA will be implementing “standardized procedures for UAS during loss of link
situations would increase the predictability of UA behavior for ATC [air traffic control]” or any
ATC equivalent implemented for sUAS.123
121
Bennett, supra note 84 at 18.
122
GEORGE MASON UNI., http://seor.gmu.edu/projects/SEOR-Spring12/UL2/ (last visited Oct. 22, 2014).
123
Id.

24
State Privacy Laws
Overall, UAS have generated a greater interest among states to protect privacy rights. This
has gained traction with the ACLU, which supports state regulations focused on privacy rights.124
However, the main concern here is public use and not civil use, meaning there is a fear that
government agencies will use drones to impermissibly search for information. In 2013, 43 states
considered approximately 96 bills related to domestic drones, the vast majority of which pertained
to privacy.125
Many of these bills “require a probable cause warrant in order for law enforcement
to use a drone to gather evidence in a criminal investigation.”126
These regulations have come in
two main forms: bans on pre-textual flights and limits on data retention.127
Pre-textual flight
protections ban police from using information collected by a drone, absent a warrant or appropriate
exigency, as part of an application for a warrant.128
Data retention limits are imposed on
information gathered that is not evidence of a crime or part of an ongoing criminal investigation.129
The ACLU focuses its anti-drone campaign on law enforcement's use (and abuse) of UAS
technology, although the organization's phobia of police drones overall seeps into its and others’
views on commercial drones.130
State-level politicians, whether legitimately concerned about
social consequences from a new technology or simply gouging drone stigma for votes, have sprung
into action nationwide.131
124
Allie Bohm, The Year of the Drone: An Analysis of State Legislation Passed This Year, ACLU (Nov.
7, 2013), https://www.aclu.org/blog/technology-and-liberty/year-drone-roundup-legislation-passed-year.
125
Id.
126
Id.
127
See Id.
128
Id.
129
Id.
130
Nicholas Ryan Turza, Dr. Dronelove: How We Should All Learn to Stop Worrying and Love
Commercial Drones, 15 N.C.J.L. & TECH. ON. 319, 340 (2014).
131
Id.

25
There are valid concerns given a helicopter looking into a backyard at 400 feet up is not a
search because there is no reasonable expectation of privacy to that space.132
However, it should
not be a major concern given the court also stated that “public use of altitudes lower than 400 feet-
particularly public observations from helicopters circling over the curtilage of a home-may be
sufficiently rare that police surveillance from such altitudes would violate reasonable expectations
of privacy, despite compliance with FAA regulations.”133
Thus, even if there is an FAA policy
allowing drones to fly within the potential “curtilage” of a home, flight that close would likely
qualify as a search requiring a warrant. Although an interesting argument could be made that if
commercial drone use becomes prevalent enough in the curtilage, the reasonable expectation of
privacy to the immediate airspace might vanish.
How can commercial drones abate these privacy issues? Unfortunately, flight in the
beginning will need pilots who observe their surroundings through video feeds. Therefore, privacy
issues become a concern if flight will entail flying through others’ property and curtilage. First, it
must be noted that those requesting a drone service will be inviting the drone onto their property,
thus, anything witnessed on that premises could likely be freely reported to the police. The main
concern is intruding on the privacy of others within that route. The best approach, which would
not hamper commercial UAS, are laws that require information gained by third party to conform
to the same UAS standards police are required to obey. Therefore, any data collected from drone
use without a warrant would be inadmissible. Another solution may be flight at altitude that does
not produce reliable picture of ground activities or does not attach a reasonable expectation of
132
Florida v. Riley, 488 U.S. 445, 446 (1989) (it is important to remember that search was with the naked
eye and the use of an image enhancing camera may change the issue).
133
Id.

26
privacy. Or flight by GPS and then turning the camera on for the pilot to land the UAS, which
would also allow pilots to manage and “fly” more than one UAS at a time.
Whatever the solution may be, states, like the FAA, must be careful not to take a strict
approach to UAS regulation. The UAS industry will generate “more than 100,000 new jobs by
2025” and “states that create favorable regulatory and business environments for the industry and
the technology will likely siphon jobs away from states that do not.”134
International Comparison of UAS Regulations
The FAA needs to create a workable domestic framework to help the growth of the
domestic drone industry, and possibly one more favorable than other international markets. If the
FAA can accomplish this feat, it could help domestic UAS start-ups, one’s who do not have the
resources to traverse this regulatory limbo, and foster industry growth. One way to help make the
best possible framework is to compare various international UAS regulations and policies to see
how the FAA can better implement UAS regulations.135
Because the main utility of sUAS is under
400 feet, the comparisons will try to focus strictly on international regulations under that altitude.
This section will also devote a large portion to Australia because it is seen as the world leader in
UAS regulation and a system ready to foster industry growth.
United Kingdom
Across the pond, the United Kingdom (UK) shares many of the same policies and views
as the FAA. The UK’s Civil Aviation Authority (CAA) defines sUAS as aircraft that are 20 kg or
134
Jenkins & Vasigh, supra note 1 at 2.
135
UAS, UAV, and RPA will be used synonymously. The terminology across the globe is not the same,
but UAS is generally the all-encompassing term. Countries use some variation of UAS (unmanned
aircraft systems), UAV (unmanned aerial vehicles) or RPA (remotely piloted aircraft).

27
less and have regulations are “a little less stringent” than other UAS.136
The UK understands that
Boeing sized UAS need to stricter scrutiny than sUAS, something the FAA has not consistently
done. The CAA imposes a number of requirements for flight including maintaining visual contact,
remaining outside of airports (aerodromes), and at an altitude of no more than 400 feet.137
These
regulations are similar to the FAA and are fair limitations although not defined very well. Again,
the visual contact is an important part of the requirements and matches the FAA’s stance on current
UAS flights. Much like the FAA, there can be no sUAS flights for the purposes of “aerial work”
(i.e. you are getting paid for doing it), except with permission from the CAA.138
The UK also
seems to be behind in the UAS race. However, the FAA can make ground by implementing
requirements for flight outside of the operators line-of-sight and relaxing sense and avoid
requirements.
Canada
Canada’s UAS laws are fairly complex, and its individualized approval system seems like
it would be difficult for businesses trying to approve multiple UAS. In Canada, if UAS flight is
for commercial purposes, then it is no longer a model aircraft and strictly regulated as a UAV.139
The Canadian Aviation Regulations (CARs) provide that “[n]o person shall operate an unmanned
air vehicle [UAV] in flight except in accordance with a special flight operations certificate or an
air operator certificate.”140
The application for certification must include information detailing the
type and purpose of the operation, the date of operation, the UAS specs, a security plan for area of
136
Small Unmanned Aircraft (20kg or less), CIV. AVIATION ASS’N,
http://www.caa.co.uk/default.aspx?catid=1995&pageid=16012 (last visited Oct. 22, 2014).
137
Id.
138
Id.
139
Flying an unmanned aircraft, TRANSP. CAN., http://www.tc.gc.ca/eng/civilaviation/standards/general-
recavi-uav-2265.htm (last updated Oct. 22, 2014).
140
Canadian Aviation Regulations (Aeronautics Act), SOR/1996-433§602.41, available at http://laws-
lois.justice.gc.ca/eng/regulations/SOR-96-433/FullText.html#s-602.41.

28
operation, an emergency contingency plan, a general flight plan (diagram, aerial photos, charts,
etc.) including altitudes and routes to be used.141
Even if successful in obtaining certification,
Transport Canada imposes conditions to operation of the UAS, “such as maximum altitudes,
clearance from people and property, operating areas, and coordination with air traffic services.”142
While it may be burdensome to continually obtain certificates for operations, Transport
Canada – Canada’s FAA – has provisions to help alleviate this issue. First, it tries to process each
application within 20 days.143
Next, if the operator has proven they can operate the UAV safely,
Transport Canada may process new applications quicker (rubber stamp) or potentially approve
long-term certificates, but it gives no explanation on how to obtain long-term approval.144
Transport Canada claims it has approved 1,527 certificates between 2010 and 2013,145
but does
not state if any were long-term or how many were rubber stamped from frequent applicants. The
rubber stamp on frequent applicants and long-term approval for regular fliers are smart provisions
that should be implemented if the FAA requires individual UAS approval, however, hopefully the
FAA does not require individual approval. Canada is reviewing its current regulations, and while
it is ahead of the FAA in clarity, Canada is in the early stages and the FAA is not too far behind.
Australia
A. Advisory Circular 101-1(0) of 2002
141
Canadian Aviation Regulations, SOR/1996-433 §623.65(d).
142
Flying an unmanned aircraft, supra note 139.
143
Id.
144
Id.
145
Id.

29
“Australia’s looser regulations could help make it a commercial drone pioneer.”146
Australia’s Civil Aviation Safety Authority (CASA) was the first in the world to implement a semi-
comprehensive regulation in July 2002.147
This “advisory” was years ahead of its time and is more
comprehensive than the FAA’s policies implemented 12 years later. The rules to operate UAS are
more advanced than most countries and provide for out of sight operations – something the FAA
must do. If the flight is outside the operator’s line of sight, the operator must conduct the flight
within “the conditions specified in an approval issued by CASA; (b) in an approved operating area;
or (c) in a known traffic environment — in accordance with regulations governing the flight of a
manned aircraft.”148
The CASA also allow UAS to fly in controlled airspace with manned aircraft,
only requiring a flight plan be submitted; however, “[w]hen the operation of a UAV does not
involve flight higher than 400 ft AGL or within close proximity to an aerodrome, the operator may
exercise discretion in lodging flight notification.”149
The CASA also implemented a number of safety considerations. For collision avoidance,
the CASA only requires “sufficient visual cues to enable the acquisition and avoidance of other air
traffic . . .” (i.e., a video link or camera).150
If landing at an airport with manned aircraft, the UAS
must simply listen to the guidance of the air traffic control.151
There are also requirements for
emergency procedures. “The UAV flight plan should include information and procedures
146
Gwynn Guilford, Australia and China Are Way Ahead of Amazon in the Commercial Drone Race,
QUARTZ (Dec. 2, 2013), http://qz.com/152788/australia-and-china-are-way-ahead-of-amazon-in-the-
commercial-drone-race/.
147
Advisory Circular 101-1(0), CIV. AVIATION SAFETY AUTHORITY, at 1 (July 2002), available at
http://www.casa.gov.au/wcmswr/_assets/main/rules/1998casr/101/101c01.pdf (“Advisory Circulars are
intended to provide recommendations and guidance to illustrate a means but not necessarily the only
means of complying with the Regulations, or to explain certain regulatory requirements by providing
interpretative and explanatory material.”).
148
Advisory Circular 101-1(0) §5.5.
149
Advisory Circular 101-1(0) § 5.6.
150
Advisory Circular 101-1(0) § 5.7.
151

30
regarding pre-planned emergency flight profiles in the event positive data link control of the UAV
is lost,” such as autonomous transit to a pre-designated recovery area and abort procedures.152
If
the flights are over a populous areas (which are allowed), “the UAS flight plan should include
procedures to be followed in the event of: (a) engine failure; (b) loss of data link; (c) loss of control;
(d) failure of navigation; (e) airframe damage.”153
Additionally, the sUAS rules are more relaxed, especially in areas that are not considered
populous (unfortunately populous is not defined).
Provided that a small UAV is operated not above 400ft . . . and
remains clear of designated airspace, aerodromes [airports] and
populous areas, there are no restrictions imposed upon the operation
of a small UAV. The operator is responsible for ensuring that the
UAV is operated safely and remains clear of potential low level
traffic, structures, powerlines etc, except where operation in close
proximity is part of an operation authorised [sic] on the operator’s
operating certificate.154
However, sUAS require special authorization and certificate of airworthiness to fly in populous
areas and, more importantly, all commercial operations require approval from the CASA.155
The
CASA also seems to support civil remedies to incidents, suggesting liability insurance to protect
self and third parties from damages.
B. Current Standing of the Law
152
153
154
Advisory Circular 101-1(0) §7.1.1.
155

31
The current regulations are just shy of perfect. First, the CASA stopped using the term
UAV, and implemented the all-encompassing UAS with its subset of RPAS (remotely piloted
aircraft systems).156
The CASA is currently reworking its Advisory Circular of 2002 to update
procedures and requirements.157
But for now, “[t]o fly an RPA of any size for commercial reward
you need an unmanned aerial vehicle (UAV) controller's certificate and an unmanned operator's
certificate (UOC) for your business.”158
A pilot/controller certificate only requires a “RPAS training course is provided by CASA
approved training organisations [sic] . . . .”159
A remote pilot certificate requires no aviation
experience, is focused only on permission to fly RPA, and can be obtained by any holder of a
UOC, which includes businesses.160
UOC are brilliant because they allow businesses with the
correct certification to train their own RPA pilots, and thus, quickly and easily maintain an
operational fleet. This approach also allows the CASA to be hands off and save resources by
shedding the duty of certifying thousands of potential RPA pilots. The FAA should fully adopt
this approach.
To obtain a UAV Operators Certificate, the business may be required to develop three
manuals: an Operations Manual, including a risk assessment; a Flight Manual; and a Maintenance
156
Project OS 11/20 - Review of Regulations and Guidance Material relating to Unmanned Aircraft
Systems (UAS), CIV. AVIATION SAFETY AUTHORITY,
http://www.casa.gov.au/scripts/nc.dll?WCMS:PWA::pc=PC_100532(last visited Oct. 24, 2014).
157
Id.
158
Model Aircraft and RPA, CIV. AVIATION SAFETY AUTHORITY,
http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD::pc=PC_100375(last visited Oct. 24, 2014).
159
Application For Remote Pilot Certificate/UAV Controller Certificate, CIV. AVIATION SAFETY
AUTHORITY, at 1, available at
http://www.casa.gov.au/wcmswr/_assets/main/download/new_cc_info_ver0_2aug13.pdf (last visited Oct.
24, 2014).
160
Id.

32
Manual.161
It is also required to nominate a Chief Controller who will “need to be a certified remote
pilot/UAV controller for the type of RPA/UAV(s) that are planned to be operated.”162
The initial
cost of approval is $4000 with renewal fee of $480.163
The initial UOC is valid for 12 months, but
then valid for 3 years after each renewal. This allows companies to train their own pilots, which is
a worthwhile investment and an easy revenue stream for the CASA. However, there are still some
wrinkles in the process. If you want to operate an RPA outside of the default area (below 400 feet
AGL, outside controlled airspace, not over populous areas), you have to get an area approval from
the CASA,164
which requires a comprehensive risk assessment.165
Populous area flight also
requires a certificate of airworthiness for the UAS.166
Australia is more permissive for all UAS and sUAS uses, including commercial. Applying
for certification is relatively easy, allowing pilot certification with entities certified to do so (drone
pilot schools?). It is unknown if the CASA has a quick turn around with certification, but at least
its regulations are laid out in plain English and set up in a manner conducive for industry growth.
When the drone boom hits, Australia will be ready to take full advantage and the CASA can
regulate any issues as they arise. Australia may become a safe haven for UAS developers because
it only requires pilot certification for research and development, while the FAA is bending
161
Requirements for a UAV Operators Certificate, CIV. AVIATION SAFETY AUTHORITY, available at
http://www.casa.gov.au/wcmswr/_assets/main/download/requirements_uav_op_certificate.pdf (last
visited Oct. 24, 2014).
162
Id.
163
Id.
164
How to Become a Safe RPA Operator, CIV. AVIATION SAFETY AUTHORITY,
http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD::pc=PC_101985 (last visited Oct. 24, 2014).
165
Framework for Area Approval Submission for RPAS Operation , CIV. AVIATION SAFETY
AUTHORITY, http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD::pc=PC_100988 (last visited
Oct. 24, 2014) (the risk assessment must detail locations, dates, maps, airspace requirements, crew details,
whether within or beyond line of sight, impacts on safety, ground operations, and procedures for
emergency circumstances).
166

33
companies over backwards to obtain exemption – not even certification. Because of Australia’s
experience and sensible regulations, Google has been conducting its research and development on
its UAS project in Australia, instead of traversing the uncertain mess of FAA policies.167
Just like
most corporations incorporate in Delaware because of its expertise in corporate law, UAS
companies may see Australia’s benefits and leave for bluer skies. Hopefully the FAA swallows its
pride and imitates an Australian system that is set up to help the industry thrive and evolve.
China
What would an international comparison be without America’s new measuring stick.
However, the writer was unable to locate any Chinese regulations on UAS, either by his inability
to read Mandarin or they simply do not exist. A lack of regulations might allow UAS operations
in China to grow more quickly than United States. However, reports suggest that “Chinese law
enforcement sources say that companies are free to operate drones once they attain the proper
permissions from regulators and local air-traffic control outfits”168
Civil UAS operations have been
limited to government departments or state-linked businesses.169
“Supervision of the mainland's
airspace is divided between the PLA [People’s Liberation Army] and the Civil Aviation
Administration, which is responsible for anything that doesn't fly higher than [3280 feet].”170
It is
unknown how permissive civil use is or the certification requirements. A Chinese company
InCake’s, which used drones to deliver dessert, was shut down by the local civil aviation
167
Madrigal, supra note 23 (“Australia’s ‘remotely piloted aircraft’ policies are more permissive than
those in the United States.”).
168
Connor Sheets, China Beat Amazon Prime Air To The Commercial Drone Delivery Market, INT’L
BUS. TIMES (Dec. 2, 2013), http://www.ibtimes.com/china-beat-amazon-prime-air-commercial-drone-
delivery-market-1491636.
169
Id.
170
Id.

34
authorities and the police.171
However, it may vary province to province and potentially affected
if the use is in connection with a state-business.
Impact on the FAA
How will these international regulations effect the FAA’s rule making process? Hopefully
they serve as a wake-up call given the U.S. is behind most countries in civil UAS certification. Are
these countries’ regulations better than what we have in place? Most definitely. The FAA’s current
combination of policies, regulations, and haphazard rules are either too restrictive or confusing,
which is never a winning combination for industry growth. The U.S. needs to look to other
countries and learn from their successes and mistakes. The FAA needs to use the Australia
framework because its clear and relaxed regulatory regime is set up for a reasonable level of safety,
business certification and quick non-governmental pilot certification, out of sight operations, and
relaxed sense and avoid requirements. The FAA needs to relax its policies before it cripples
growth. The FAA can also potentially surpass Australia in some areas, especially with rules that
govern semi-autonomous or completely autonomous drones and further streamline the certification
process, particularly in online applications.
Conclusion
The FAA needs to implement a clear, concise, and permissive UAS integration plan to
foster a multi-billion dollar industry. While there may be bumps along the way with permissive
regulation, the benefits far outweigh the dangers and it will help the U.S. to better compete in the
international UAS market. Taking after Australia’s CASA, the FAA should certify businesses as
centers for individual pilot certification. This approach takes the bureaucratic oversight and
171
Id.

35
overhead out of the picture. Australia realized the potential commercial applications of UAS and
quickly implemented a framework for all to understand what is allowed with UAS use. The FAA
has taken the opposite approach. The protective actions of the FAA – fining individuals for
commercial uses – does not breed hope for open skies; but worse, this capricious, protective veil
has confused commercial entities simply seeking to test and develop UAS. Applying for
certification is not easy, and although it has become easier, the process needs to be simpler and
quicker. While larger companies may have the resources to traverse this unstable regulatory
landscape, smaller start-ups are left will either waste man hours figuring out the law or simply
ignore the rules. Neither of which is an outcome the FAA should be satisfied with. The FAA is the
main problem, lacking transparency and urgency in the rulemaking process. A lethargic attitude
towards promulgating a framework will end up hurting the domestic UAS industry, stunting
growth before it has a chance to blossom.

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