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Drone regulations evolve as enterprise adoption heats up

With enterprises embracing drone use to gain competitive advantage, the FAA is easing up on compliance rules targeting drones' use in commercial operations. In this Q&A, attorney Mark McKinnon discusses the evolution of drone regulations.

Drone technology adoption in the enterprise is speeding up, and likely will not slow down any time soon: A new report predicts the global drone market is expected to surpass $22 billion by 2022. Enterprises are attracted to drones' potential to spur innovation, but now the Federal Aviation Administration must figure out how to regulate drones as the technology develops the ability to complete increasingly complex operations. The FAA has been working with the industry to craft drone-specific mandates that are flexible enough so that they don't hinder this innovation, but still maintain public safety and privacy.

In this Q&A, Mark McKinnon, attorney at LeClairRyan law firm, discusses how drone regulations have evolved as the FAA tries to maintain this balance between innovation and regulation. McKinnon also explains why enforcement is a major challenge associated with drone regulation implementation, and sheds light on how companies can prepare for the future of drone operations compliance.

What trends are you seeing when it comes to drone regulations?

Mark McKinnon: On the federal level, there has been a very orderly progression that the FAA has gone through. They started with exemptions back in 2014 to try and get some businesses operational, and that was done on a case-by-case basis. Their creation of Part 107 kind of opened it up and built on the exemptions to create a system where most operations that businesses want to do can be done under Part 107. Now that we have that, the FAA is taking the next steps.

Mark McKinnon, attorney, LeClairRyan Mark McKinnon

Under Part 107, you can't fly over large groups of people and can't fly beyond a line of sight. The FAA is going in a very orderly fashion trying to address each of those. They are spending a lot of time with the industry to try and build consensus about what the standard should be and what type of rules are going to work for the industry, and then trying to make a decision as to what can be accommodated in a safe way. We're seeing a very orderly progression of simple operations to more complex operations until at some point we're going to have things like autonomous, beyond line of sight package delivery.

At the state level it's very much more piecemeal; it depends on whether there's something that's gotten somebody's interest at the state level.

Can you give us an overview of the FAA Part 107?

McKinnon: For any airline, it is the airline company that has a certificate and the company is regulated by the FAA. But it doesn't work that way for unmanned aircrafts. The company isn't regulated by the FAA directly. The drone regulations are simpler in that regard, because the only person who has to have a license that's regulated by the FAA is actually the pilot. The pilot flying the drone has to have a certificate and is the one who is directly responsible to the FAA for violating the regulations. It's how the FAA Part 107 is set up. But the company has an obligation to hire somebody who has a pilot's license.

The FAA has made Part 107 even more flexible: If certain types of businesses want to fly beyond visual line of sight or if they want to fly in airspace other than Class G airspace, they can get a waiver. There's a process they can go through where the FAA reviews their application and if they agree that it's safe, then businesses get permission to do more complex things. But things like commercial package delivery can't be done under Part 107, even with a waiver.

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What are the challenges associated with implementing drone regulations?

The biggest challenge with implementing drone regulations, both at the state and the federal level, is always enforcement.

McKinnon: The biggest challenge with implementing drone regulations, both at the state and the federal level, is always enforcement. If you have rules and people decide they're going to violate them, it's not just having a system where if they catch you, this is what the penalty will be. With drones, the problem lies with actually trying to catch people because even if you see a drone flying, that doesn't necessarily tell you who the person is or what their intentions are. With drones, taking that law enforcement step of having someone to actually intercept somebody who's doing something illegally, then trying to find out who they are and then go through a law enforcement process, is where it breaks down. Manned aircrafts have registration numbers on them and a lot of times you can tell what the aircraft number is. With drones, while they all have to be registered and have registration numbers for commercial sector, you can't really see it. That system doesn't really work for drones.

How do organizations make sure they are compliant with established laws before they launch a drone program?

McKinnon: It's basically the same way that any business that's in a regulated environment has to work: They have to have a program. The pilots have to have a Part 107 certificate, so they have to be licensed. Organizations have to understand, by law, the rules of the road -- or the rules of the air -- when they fly. They should have some kind of process internally where they have an operations manual that has what the requirements of the law are, and make sure that their employees are familiar with it. Companies should also understand state and local laws and make sure they are following them.

What does the future of drone regulations look like to you?

McKinnon: Ultimately, the future should be that unmanned aircraft will be fully integrated into the airspace. There will be rules that cover basically any type of operation that people want to do, like commercial package delivery or long distance, beyond visual line of sight operations. That's the ultimate goal that both the FAA and Congress envision. We're still a long way from that, but that's ultimately what it will look like.

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