Product Liability Update

On June 21, 2016, the Federal Aviation Administration (FAA) unveiled a landmark set of new rules for the commercial operation of small Unmanned Aircraft Systems (sUAS), more popularly known as drones. The new rules will take effect in late August 2016 and only apply to commercial uses for drones weighing less than 55 pounds. Designed to minimize the risks to other aircraft and to people and property on the ground, the regulations identify the operational limitations and pilot certification requirements for commercial sUAS use. Here are some key highlights of the new regulations:

Commercial Drone Operational Limitations:

• The drone operator must:
  • keep the drone within unaided visual sight (i.e., no binoculars),
  • maintain a minimum weather visibility of three miles from the control station,
  • fly the drone no more than 400 feet above ground level,
  • keep the maximum drone speed below 100 MPH (87 knots),
  • yield to manned aircraft,
  • operate no more than one drone at a time, and
  • report to the FAA within 10 days any operation that results in serious injury, loss of consciousness, or property damage (to property other than the UAS) of at least $500 (“mishap reporting requirements”).
• Drones cannot be flown at night. They must be flown during the day, or during civil twilight (30 minutes before sunrise and 30 minutes after sunset) with appropriate anti-collision lighting.
• Drones cannot be operated over people not participating in the flight, not under a covered structure, and not inside a covered stationary vehicle. Moreover, drones cannot be operated from a moving vehicle, except if over a sparsely populated area.
• Drones can be operated in Class G airspace without air traffic control permission, but cannot operate in Class B, C, D, or E airspace without air traffic control (ATC) approval.
• Drones may transport cargo for compensation so long as:
  • the cargo is not hazardous,
  • the cargo is secured and does not affect the controllability of the drone,
  • the total weight of the drone and cargo weighs less than 55 pounds, and
  • the transportation occurs within a single State.

Commercial drone operators can request a waiver for certain operational limitations, so long as the applicant can demonstrate safe drone operations under the terms of the waiver. The FAA hopes to respond to waiver requests within 90 days, depending on the complexity of the request. The regulations do not currently explain what level or type of safety assurances will be required to receive the waiver. However, the FAA notes that it will soon release standard special provisions for waivers.

Commercial Drone Pilot Certification Requirements

• The commercial drone operator must either hold a Remote Pilot Certificate, or be under the direct supervision of a person holding such certificate.
• To qualify for a Remote Pilot Certificate a person must:
  • Be at least 16 years old;
  • Pass an initial FAA-approved aeronautical knowledge exam, or, if the person already holds a Part 61 pilot certificate (other than a student pilot), complete a flight review within the previous 24 months;
  • Be vetted by the Transportation Security Administration (TSA); and
  • Pass a recurrent online training course or knowledge test every two years.

For those who are interested in all of the expansive new regulations, the FAA’s 624-page ruling can be viewed here.

Keep in mind that drones are still subject to registration requirements for both commercial and non-commercial (including recreational) uses, and drone use may also be regulated under various state and local laws. For example, states and local authorities have created a national mosaic of drone specific privacy laws that operators should be knowledgeable, lest operators run afoul of such laws while still complying with the FAA safety regulations.

Increased commercial drone use may also increase the risk of legal liability for a range of parties. For example, the FAA’s mishap reporting requirements, as mentioned above, demonstrate its anticipation of unavoidable damage and injuries associated with increased drone operations. As the FAA considers safety and risk, so should drone operators, manufacturers, sellers, and other relevant stakeholders. Potential product liability exposure and cybersecurity concerns are among the liability issues that drone stakeholders must consider. As commercial drone use continues to expand and evolve, thoughtful planning, preparation and operation will be among the keys to reducing and mitigating potential liability issues.