Drone in flight. Credit: CC0 Public Domain

Over the last couple of years, we have seen an increase in state regulation of unmanned aircraft systems (UAS). A recent report published by the American Legislative Exchange Council (ALEC) titled “A Guide to State Laws Impacting UAS/UAV Operations” identifies the restriction of operations near critical infrastructure among the leading trends in state regulation of UAS. Notwithstanding the emergence of state regulation in this field, the enactment of the FAA Extension, Safety, and Security Act, 2016 (the “Act”), indicates that Congress intends to vest the authority to protect critical infrastructure from UAS with the FAA. In light of this development, states that have enacted laws or are considering regulating in this field, should consult with the FAA in order to promote a unified national framework that addresses local concerns.

States that have enacted legislation restricting UAS operations near critical infrastructure include Oregon, Texas, Oklahoma, Louisiana, and Tennessee. The approaches to the restrictions, as well as the definitions of critical infrastructure, vary among the jurisdictions.  Oregon’s law generally prohibits intentionally or knowingly engaging in UAS operations over critical infrastructure at or below 400 feet AGL It also prohibits allowing a UAS to make contact with critical infrastructure. There are various exceptions from the general overflight restriction, including for operations conducted by: a public body, the federal government, a law enforcement agency, the owner or operator of the critical infrastructure facility, and for commercial operations conducted in compliance with FAA authorization.

Oklahoma’s law carries similar restrictions and exceptions as Oregon with minor variances, and additionally, prohibits allowing a UAS to come close enough to critical infrastructure to cause a disturbance. Oklahoma also creates civil liability for damage to property, the environment, and human health. Louisiana takes a different approach, prohibiting UAS flight near “targeted facilities” for purposes of surveillance or gathering evidence. Targeted facilities include schools and correctional institutions. And Tennessee prohibits the operation of UAS within 250 feet of the perimeter of critical infrastructure facilities for purposes of surveillance, collection of evidence, or capturing photos or video recordings.  As these examples indicate, there is discrepancy in the approaches adopted by states to protect critical infrastructure from UAS.

In the interest of promoting compliance and efficient management of airspace, a uniform national framework implemented by the FAA in accordance with Section 2209 of the Act should be used to displace state regulation of UAS operations near critical infrastructure.

Section 2209 directs the Secretary of Transportation to establish a process to enable applicants to petition the FAA Administrator to “prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility.” Section 2209 outlines the following criteria that the FAA may consider in determining whether to grant or deny an application for designation of a fixed site facility: (i) aviation safety, (ii) protection of persons and property on the ground, (iii) national security, or (iv) homeland security.  For an analysis of Section 2209, please see my previous post entitled “Protecting Infrastructure and Innovation under Section 2209”.

In the coming months, as the FAA establishes a process for designating fixed site facilities, states that have enacted regulations concerning UAS operations near critical infrastructure should review Section 2209 and consult with the FAA.

Drone flying over a field.

On July 15, 2016, Congress enacted the FAA Extension, Safety, and Security Act (the “Act”), which among other things, directs the Secretary of Transportation to establish a process to enable applicants to petition the FAA Administrator to “prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility.” Congress tasked the FAA with establishing a process for designating fixed site facilities no later than 180 days from the date of enactment. Below is an outline of the key problematic provisions in Section 2209 and a proposed path forward for establishing a process that meets the Congressional directive while not unnecessarily restricting industry.  

Section 2209 outlines the following criteria that the FAA may consider in determining whether to grant or deny an application for designation of a fixed site facility: (i) aviation safety, (ii) protection of persons and property on the ground, (iii) national security, or (iv) homeland security. Subsection 2209 (b)(1)(C) further provides that only the following facilities may be considered for designation:

(i) Critical infrastructure, such as energy production, transmission, and distribution facilities and equipment.

(ii) Oil refineries and chemical facilities.

(iii) Amusement parks.

(iv) Other locations that warrant such restrictions.

Subsection 2209 (b)(1)(C) attempts to restrict the types of locations that would be subject to designation, however, certain portions of the text undermine that goal. Categories (i) and (ii) are generally reasonable as they outline a list of infrastructure and facilities that by their nature may create an environment that could increase the risk profile of UAS operations from a facility safety, national security or homeland security perspective. However, since subsection (i) does not offer a closed definition of “critical infrastructure”, it could be construed too broadly. The FAA should clarify the types of facilities that are considered critical infrastructure by providing a closed definition. This clarification would help applicants understand whether their facility could be considered for designation and it would reduce the administrative burden of processing applications for facilities that the FAA does not consider to fall under the definition.

Category (iii) – amusement parks – appears out of place in relation to the first two categories. Amusement parks do not appear to raise special concerns from an aviation safety, national security or homeland security perspective. Nor do they typically raise unique concerns in terms of potential damage to property or persons in the same way that critical infrastructure or chemical facilities do. The risks to property or persons for UAS operations taking place near amusement parks are generally covered under Part 107 through provisions such as the restriction on flight over people who are not a part of the operation.

Finally, category (iv) “other locations that warrant such restrictions” is very broad and opens the door to expanding the list of fixed site facilities well beyond the types of locations that the drafters intended to protect. A broad construction will not only unnecessarily restrict the industry, it will also run the risk of leading to uneven results for applicants seeking to protect their facilities. The FAA should establish a closed list of other types of locations that may be considered for designation.

Section 2209 incorporates a savings clause which states that: “nothing in this section may be construed as prohibiting the Administrator from authorizing operation of an aircraft, including an unmanned aircraft system, over, under, or within a specified distance from that fixed site facility designated under subsection (b).” The framework established by the FAA to implement Section 2209 should incorporate a waiver process in line with that provided in Part 107 that will allow applicants to fly in proximity to fixed site facilities if they show that they can mitigate the risks of the operation to an acceptable level.

The process set up by the FAA should also acknowledge that operators may go directly to any designated fixed site facility to seek permission from the owner to operate UAS over the facility. Incorporating this mechanism will serve to minimize the administrative burden on the FAA in granting waivers from the general restriction on flying UAS in proximity to designated sites.

Lastly, the applications for designation should be publicly posted in the Federal Register so that the FAA may consider public comments prior to making a determination whether to grant or deny applications.

This morning, the Federal Aviation Administration (FAA) released the highly anticipated rules governing the operation of small UAS (sUAS) for commercial purposes.  The new rules are scheduled to take effect in late August – until that time, commercial operators may continue to operate under Section 333 exemptions.  As expected, Part 107 generally follows the proposed rules that were contained in the Notice of Proposed Rulemaking (NPRM) that was issued by the FAA in February 2015.

One of the most significant changes for industry is that commercial operations that fit within the framework of Part 107 will no longer require approval by exemption, which has typically taken months to secure.  Undoubtedly, the new framework will mean increased efficiency for commercial operators who will also not be required to secure airworthiness certification for their sUAS.

The fact that operators will no longer be required to hold a manned aircraft pilot’s license and can instead take a knowledge test to obtain a sUAS operator’s certificate is a significant win for the industry that will open up the skies to make more operators.  Brendan Schulman, VP of Policy and Legal at DJI remarks:

“This is a global precedent.  The most respected aviation authority in the world has concluded that drones may be operated safely for basic commercial operations without requiring airworthiness certification and without requiring pilots to pass a practical flight examination.  This reflects how fundamentally safe and beneficial this technology is, and is a model that should be adopted worldwide.”

The removal of the requirement to obtain a sport pilot’s license comes as no surprise as the NPRM stated that the “training, testing, proficiency and experience requirements for obtaining a commercial pilot’s license have limited relevance to the nature of small UAS operations.”  In addition to passing the aeronautical knowledge examination, pilots will be required to self-certify that they have the physical capacity required to safely operate sUAS.  They will also need to undergo a TSA security threat determination.  

In anticipation of the skies opening up significantly for sUAS, last year President Obama issued a Presidential Memorandum directing the National Telecommunications and Information Administration (NTIA) to convene an industry-led multi-stakeholder process to address privacy, transparency and accountability issues raised by UAS.  In May – after many months of meetings – various industry stakeholders reached consensus on voluntary best practices for conducting UAS operations.  Jules Polonetsky, CEO of Future of Privacy Forum, one of the stakeholders involved in the NTIA process states that with the final rule in place:

“Drones will bring a wide range of benefits, but for widespread acceptance, it will be essential for the public to feel comfortable that personal data collected by drone operators will be used responsibly.  The drone privacy best practices provide guideposts that will help major companies and small operators alike demonstrate that they handle data in a trustworthy manner.”

In the coming months, with support of the White House, industry stakeholders will work towards developing educational initiatives surrounding the privacy best practices aimed at promoting broad industry adoption.

In addition to responding to privacy concerns surrounding drones, what the industry needs to achieve its full potential is a framework that supports beyond line of sight operations.  This sentiment was expressed by Kurt Carraway, Unmanned Aircraft Systems Executive Director at Kansas State University (KSU): who commented on the Pathfinder Program which is a vehicle established to research how to fly beyond line of sight safely: “the methodologies incorporated into this great work are exactly what is needed to strike the balance between the advancement of the UAS industry and expansion of integration into the national airspace in a safe manner.”

In the meantime, industry reactions to the final rule suggest a general excitement surrounding the future of UAS.  Bob Young, CEO of PrecisionHawk remarked that “today, the FAA revealed new regulations that maximize freedom and safety, promoting business innovation that will take the industry to the next level. The rules recognize the value of drones as a tool to preserve our growing planet’s diminishing resources without jeopardizing a stellar safety record. We are excited to about the bright future of flying robots.”

The Bill may have unintended consequences for safety by failing to consider that the FAA currently limits operations above 400 feet AGL. By establishing an arbitrary 350-foot limit above real property, the Bill would confine drone operations to a narrow 50-foot corridor, which would result in increased congestion, move many operations closer to manned aircraft than needed and may lead to an increased risk of accidents.

The Bill is over-broad in its attempt to achieve privacy – it does not even distinguish between drones that have cameras and those that do not. The Bill is also ineffective, for instance it does not restrict operators from capturing images and videos of private property that are taken from a vantage point just outside of the owner’s property line. And since Congress has mandated the FAA to integrate drones into the national airspace, the Bill may trigger a constitutional challenge based on federal preemption.

California has existing laws that can be applied to drones, including trespass and anti-paparazzi laws. Nevertheless, if California lawmakers are resolved that current laws are insufficient to protect against the risks posed by drones, they should dispense with the current Bill and introduce legislation that is narrowly tailored and likely to be effective in achieving its purpose.

image: Matt Chamberlain.

On May 28^th, Transport Canada released a Notice of Proposed Amendment (NPA) outlining proposed changes to the regulatory framework governing small UAVs. If adopted, the changes would take effect in 2016. The deadline to submit comments is August 28^th.

Minimizing the Application of SFOCs

Transport Canada proposes to establish regulatory requirements for UAVs weighing 25kgs or less (sUAVs) that are operated within visual line-of-sight (VLOS). Operators using sUAVS within VLOS that would be able to meet the regulatory requirements would be permitted to operate without having to obtain Special Flight Operation Certificates (SFOCs). Operators using UAVs weighing more than 25kgs and/or those seeking to operate beyond VLOS would continue to use the SFOC process.

Establishing Risk-Based Categories of Operations

Transport Canada proposes three categories of operations involving sUAVs that are flown within VLOS: Complex Operations, Simple Operations and Operations Involving Very Small UAVs.

Under each of the three categories, operators that meet certain criteria would need to register with Transport Canada and obtain an Operator Certificate by demonstrating that they have an “adequate management structure and can conduct a safe operation”. The criteria being considered includes:

• The number of employees;
• Companies that retain persons in commercial UAV enterprises; and/or
• Companies seeking to operate across multiple regions and/or using a large number or multiple types of UAVs

Such operators would have to meet certain requirements for flight operations, documentation, flight time and duty time limitations, emergency equipment, maintenance requirements, training programs and operations manuals.

1. Complex Operations

This category would establish rules for operating around built-up areas and close to aerodromes. Because of the increased risk associated with such operations, this category would establish the most stringent requirements.

Specific requirements include:

• Aircraft marking and registration;
• Pilot permit (criteria includes: age restrictions, medical fitness, knowledge requirements, passing a Transport Canada written exam, practical training on the type of UAV to be flown and demonstrating competency in performing normal and emergency procedures); and
• Manufacturer declaration that the UAV meets a design standard

Transport Canada proposes to establish operating rules for this category including:

• Not operating within Class A or B airspace;
• Not operating within Class F Restricted airspace without permission;
• Restricting a single pilot from operating more than one UAV at the same time;
• Prohibiting visual observers from being situated in moving vehicles;
• Maintaining a minimum lateral distance from people, animals, buildings and vehicles (specific distances have not been proposed); and
• Operating at a maximum altitude of 400 feet AGL

2. Limited Operations

This category would apply to operations taking place in remote areas, for example, agricultural operations and rural aerial surveys. This category would mandate specific operating distances from built-up areas and aerodromes.

Specific requirements include:

• Aircraft marking and registration;
• Basic knowledge test; and
• Manufacturer declaration that the UAV meets a design standard

NOT required:

• Pilot permit

The operating rules for this category would include:

• Operating only during the daytime;
• Maintaining a maximum speed of 87 knots;
• Not entering in Class C, D, E or F airspace;
• Staying a certain distance away from aerodromes (proposal considers 9km and 20 km);
• Staying at least 9 km from built-up areas; and
• Operating at a maximum altitude of 300 feet AGL

3. Operations with Very Small UAVs

Transport Canada is seeking comments on whether it should incorporate a category that would establish less restrictive rules for very small UAVs, and whether the category should be based on weight or an alternative approach i.e. kinetic energy. Although the proposal does not specify the weight limitation that would be applied to this category, it references the 2kg exemption that was issued last November.

As an alternative for classifying very small UAVs, Transport Canada proposes using a table that assesses maximum weight and airspeed to determine the lethality. Another option considered is to create a low energy category for UAVs that would not impart energy over a certain threshold on impact.

Specific requirements include:

• Aircraft identification (pilot name and contact marked on UAV); and
• Basic knowledge test

NOT required:

• Aircraft marking and registration;
• Pilot permit;
• Medical certificate; and
• Manufacturer declaration that the UAV meets a design standard

The proposed operating and flight rules for this category include:

• Operating only during the daytime;
• Not entering in Class C, D, E or F airspace;
• Staying at least 9 km from aerodromes; and
• Operating at a maximum altitude of 300 feet AGL

If you would like to submit a comment to Transport Canada, you may send your comment to carrac@tc.gc.ca by August 28^th.

image: Sony Pictures

Chappie, the new robo-film on the block, takes place in Johannesburg, where the police force is made up of robots. In one of the early scenes, the main characters, Die Antwoord’s Ninja and Yolandi take part in a drug deal that is raided by robot cops. Hoping to avoid a similar fate in their next deal, Yolandi suggests that they find the robots’ remote so that they can switch them off like TV sets. Do the robots have a remote? And do Ninja and Yolandi find it? No spoilers here, but let’s take up the underlying question in the context of drone regulations…

What is Canada’s position on autonomous and automated operations? Does your drone have a ‘remote’? If it does, according to Transport Canada, it is not an autonomous drone. Transport Canada defines an autonomous drone as one that does “not allow pilot intervention in the management of the flight.” It is not enough for an autonomous drone to be capable of self-governance, rather it must not allow for any possibility of human intervention.

What about drones that have a remote but can complete automated tasks such as take-offs or landings or that can execute pre-defined waypoint operations? Transport Canada distinguishes these drones from autonomous drones by pointing to the fact that they require operator initiation or intervention.

Although there is no express prohibition, truly autonomous operations are outside of the scope of Canada’s current regulations. For the time being, if your drone doesn’t have a remote, you wouldn’t be able to operate. Our framework permits operations that involve automation, but it requires that an operator have the capability to intervene – or rather, as Ninja and Yolandi would hope – your flying robot must have a remote.

JJRC H8C Quadcopter Drone – Night Flight. Source YouTube.

The FAA’s Notice of Proposed Rulemaking (NPRM) for small unmanned aircraft systems (SUAS) limits SUAS operations to daylight hours. The FAA concedes that the restriction on nighttime flights may negatively impact the ability to use SUAS in northern regions such as Alaska that have very few hours of daylight during winter months. The FAA has invited stakeholders to comment on how risk may be mitigated in the course of nighttime operations. Here is a breakdown of the Canadian approach to risk management for nighttime flights…

In Canada, nighttime operations are possible under the Special Flight Operations Certificate (SFOC) system. Transport Canada’s Staff Instruction 623-001 outlines the following conditions for nighttime operations:

• If the UAV has lights, the lights must be on during night flights
• If the UAV does not have lights, there must be a means of illumination that would enable visual contact with the UAV
• The crew must have a portable emergency light source available
• The pilot must not have visual limitation of depth perception, colour blindness or problems seeing at night
• Visual observers providing the sense and avoid function (i.e. where the pilot is using FPV) cannot use night vision goggles

Transport Canada further states that if light emitting diodes (LEDs) are used to satisfy the lighting requirement for nighttime operations, the LEDs must have sufficient intensity to enable the pilot or visual observer and other airspace users to have visual contact with the UAV.

Source: Matt Chamberlain.

The FAA’s Notice of Proposed Rulemaking (NPRM) for small unmanned aircraft systems (SUAS) proposes to restrict operations that are completed beyond visual line-of-sight (BVLOS). However, the FAA has invited comments regarding the proposed BVLOS restriction. In Canada, BVLOS operations are not yet mainstream, however they are attainable under the Special Flight Operations Certificate (SFOC) system.

Transport Canada’s Staff Instruction 623-001 establishes the following conditions for BVLOS operations:

• BVLOS flights cannot take place outside of restricted airspace, unless the operator can mitigate risk to an acceptable level i.e. through the use of ground-based radar
• BVLOS flights must not be conducted over populated areas
• BVLOS flights must be conducted in visual meteorological conditions
• BVLOS flights cannot be conducted within controlled airspace
• BVLOS flights can only be conducted within 5 nautical miles of the point of departure
• The take-off and landing/recovery must be conducted within visual line-of-sight
• Direct radio line-of-sight capability must be maintained throughout the operating area

Canada is not alone in having established conditions for BVLOS operations. In fact, quite a few jurisdictions have more advanced regulations for BVLOS operations, including Australia, Colombia, Czech Republic, France, Israel and Poland. As stakeholders submit comments to the FAA over the next two months, it’s important to look at how other jurisdictions are managing risk in BVLOS operations.

Source: Wikipedia

Various aspects of the anticipated proposed small UAS (sUAS) regulations that were released by the FAA draw inspiration from Canada’s approach to regulation. In fact, the FAA provides a handy comparison chart on pgs. 55-56. The Canadian comparison is limited to Canada’s new exemptions for sUAS.

Canada’s exemptions operate very differently than FAA exemptions, as they do not require approval from our regulator, Transport Canada.

If you meet the requirements of either of Canada’s two exemptions, you can operate without applying for a Special Flight Operations Certificate (SFOC). SFOC allow for broader applications than what is shown in the FAA comparison chart, including FPV and beyond visual line of sight.

Practicing in the Canadian jurisdiction, I believe that one of the most valuable aspects of our system is its flexibility and the fact that the system rewards safe operators. For instance, in Canada, first time SFOC applicants are typically rewarded narrow certificates in terms of time, geography and level of operational risk. As operators develop a track record of conducting safe operations, they are able to receive ‘standing certificates’ allowing them to operate for up to three years over large regions of the country.

The FAA should consider adopting a similar approach that rewards safe operators by allowing them to complete less restrictive operations. For instance, the proposed rules state that operators would not be able to fly over persons not involved in the operation. If an operator has a good track record of conducting safe flights, there is no reason why the FAA should not consider removing this burden.

As the FAA crafts its final regulations, it is important to find ways to build flexibility into the system, and to not only focus on punishing irresponsible behaviour but also rewarding safe operators.

photo: FAA

This past Sunday the FAA held a conference call to announce its highly anticipated small UAS (sUAS) regulations. Sunday morning might strike as odd timing, however it’s likely that the timing had to do with the leak of the Notice of Proposed Rulemaking Regulatory Evaluation, Small Unmanned Aircraft Systems, which I wrote about here. Below is a summary of the critical aspects of the proposed regulations from the FAA summary (the proposed rules have not been made available at the time of writing).

Operational Limitations

• UAS must be under 55lbs
• UAS must be operated within visual line of sight
• FPV is not permitted
• Operator must not fly over people not involved in the operation
• Daylight operations only
• Maximum speed of 87 knots
• Maximum altitude 500 feet AGL
• A single person cannot act as an operator for more than one UAS operation at a time

Operator Certification and Responsibilities

• Operators must pass an aeronautical test
• Operators must obtain an sUAS operating certificate

Aircraft Requirements

• Airworthiness is NOT required
• Aircraft markings required

Model Aircraft

• Proposed rule would not apply to model aircraft
• Proposed rule would codify the FAA’s enforcement authority in respect of model aircraft operators who are endangering the safety of the national airspace

Some of the items that are not addressed in the FAA summary which I am particularly interested in are: (1) whether the proposed rules allow a single person to operate a fleet of drones within the same operation, and (2) what the TSA security clearance check will entail.

A new document purporting to be prepared by the FAA Office of Aviation Policy and Plans provides hints regarding the anticipated proposed small UAS (sUAS) regulations. The possible leaked document is dated February 2015 and is titled “Notice of Proposed Rulemaking Regulatory Evaluation, Small Unmanned Aircraft Systems.” The document’s authenticity has not been established, however assuming that the document is authentic, here are some of the more noteworthy insights into the upcoming proposed regulations…

Line of Sight in Daylight Below 500 ft

The FAA proposes that operators must fly within visual line of sight. The document states that at this time “there is no acceptable technological substitute for direct human vision.” The document also proposes that operators are only permitted to fly between sunrise and sunset. The rationale provided for this requirement is that sUAS will be flying at low altitudes and flying at night would make it difficult to see people on the ground. The proposed rule requires operators of sUAS to operate below 500 ft. The logic behind this ceiling height restriction is that manned aircraft generally operate above 500 ft.

sUAS Registration Requirements, No Airworthiness

Each sUAS would have to be registered with the FAA. Registration would cost around $5 and would have to be renewed every three years. According to the document, the FAA Aircraft Registration database would enable the FAA and the public to identify registered owners and operators. The document states that “this information is necessary for FAA Aviation Safety Inspectors to perform their routine checks or to investigate an incident or accident.” Although sUAS would have to be registered, airworthiness compliance would not be imposed. Because sUAS pose a lower risk to people and property, the document provides that airworthiness compliance “would not result in significant safety benefits.”

No Pilot’s License but Requires Knowledge Test and Operator Certificate

A pilot’s license would not be required to operate sUAS. The document admits that the “training, testing, proficiency and experience requirements for obtaining a commercial pilot’s license have limited relevance to the nature of small UAS operations.” Instead, operators would have to pass a test demonstrating aeronautical knowledge and would be required to obtain a small UAS operating certificate from the FAA. The test would take roughly 3 hours to complete.

TSA Security Threat Determination

According to the document, the “TSA would [need] to determine if the operators pose a security threat. The TSA considers someone to be a security threat when he or she is known to pose or is suspected of posing a threat to national security, to transportation security, or of terrorism.” The estimated cost of a security threat determination is $130 per applicant. Although the proposed rule does not impose this fee on the operator, the document states that “at some point in the future these costs may be passed directly to the operator.”

Physical Capacity Certification

The document provides that sUAS applicants would have to certify that they have “no physical or mental condition that could interfere with the safe operation of a small UAS.”

Alternative Approaches

Finally, the document reveals alternative approaches that the FAA considered in the rulemaking process. For instance, the FAA considered parsing sUAS into subcategories based on weight, operational characteristics and operating environment. The FAA dispensed with this approach as it was deemed too burdensome. However, the FAA is apparently considering a micro sUAS rule for UAS under 2kg that meet certain operational parameters including operating at less than 30 knots below 400 ft within line of sight without use of FPV. Under the micro sUAS classification, the operator would not have to complete the knowledge test however a micro sUAS operating certificate would be required.

The Air Defense Identification Zone (ADIZ) surrounding Washington, D.C. Source: Wikipedia.

Shortly after a Phantom crash-landed on the grounds of the White House, its maker, DJI, announced that it would release a mandatory firmware update that would restrict flights within 15.5 miles of downtown Washington, D.C.

On Friday, Senator Schumer’s office released a statement urging the FAA to mandate that manufacturers impose technical controls to prevent drones from flying in high risk areas including near airports, other aircraft and the White House.

Whether drone manufacturers enforce “No Fly Zones” on their initiative as DJI has announced it will do, or whether they will be required to do so by the FAA at a later date, there are legal liability issues that should be considered.

If a manufacturer has not imposed technical measures to enforce No Fly Zones, and an operator enters a restricted area, liability is fairly straightforward. Assuming there is no design or manufacturing defect that causes the drone to fly into the restricted area, it is unlikely that the manufacturer would be held liable for any physical injury or property damage that may occur if the operator enters a No Fly Zone.

However, if a manufacturer implements technical measures to restrict drones from entering No Fly Zones, and such measures fail, they may be opening themselves up to legal liability if an operator flies into a restricted area and causes physical injury or property damage. Although it is unclear how liability may be allocated between an operator and a manufacturer in such a case, unless manufacturers are granted immunity from such lawsuits, they may be opening themselves up to liability by attempting to enforce No Fly Zones.

Fotokite tethered drone.

In November, Transport Canada issued Staff Instruction 623-001, which provides guidance on the review and processing of Special Flight Operations Certificate (SFOC) applications. Among the issues addressed are whether an SFOC is required for indoor and tethered drone operations. Below is a summary of Transport Canada’s position…

Indoor Operations

According to the Staff Instruction, there are certain situations in which you don’t need an SFOC to conduct an operation inside a building or a structure, however this is not always the case. Whether you need an SFOC or not for an indoor operation turns on who is actually present while the operation is being conducted.

If only the operation crew is present, an SFOC is not required. Similarly, if only the crew and other people who are directly participating in the operation are present, an SFOC is not needed. For example, for an indoor movie set, an SFOC would not be required if only the crew and actors are present. However, if there are individuals present within the building or structure who are not directly involved in the operation, then an SFOC would be required. An example of this would be a sporting event where members of the public would be present.

Tethered Drones

The Staff Instruction characterizes tethered drones as “obstacles to air navigation [that] are to be marked and lit in accordance with the obstruction marking and lighting standards” found in the Canadian Aviation Regulations. The Staff Instruction further provides that tethered drones that are “extremely manoeuvrable and which operate over wide vertical/horizontal areas may require an SFOC.”

It is unclear what Transport Canada considers to be an ‘extremely manoeuvrable’ tethered drone or what constitutes a ‘wide vertical/horizontal area’. However, the Staff Instruction states that, “operating an aircraft on a tether simply to avoid SFOC requirements is not a viable solution.”

Source: Wikipedia

Canada’s relatively favorable framework for commercial UAV operations is attracting interest among foreign operators who are frustrated with restrictions in their home jurisdictions. The following provides a breakdown of Canadian regulations affecting foreign commercial operators…

Are foreign operators eligible to operate in Canada?

Foreign operators may conduct commercial operations in Canada if they are granted a Special Flight Operations Certificate (SFOC) from Transport Canada. To be considered a candidate for an SFOC to conduct a commercial operation, a foreign operator must demonstrate legal eligibility to operate in the operator’s home jurisdiction. For example, a US operator would require a Certificate of Waiver and Authorization (COA) or a Special Airworthiness Certificate (SAC) to be eligible to apply for an SFOC to conduct a commercial operation in Canada.

What options are available for foreign operators who aren’t legally eligible to operate in their home jurisdictions?

First, foreign operators who have no legal basis for operating in their home jurisdictions are permitted to conduct research and development operations in Canada under an SFOC. Such activities must be conducted at designated UAV test sites such as the CCUVS site recently approved in Southern Alberta. The CCUVS site operates under restricted airspace that spans 700 square nautical miles running up to 18,000 feet above sea level. Because the airspace is restricted, it is possible to complete more risky operations such as those conducted beyond visual line of sight.

Second, foreign operators who have no legal basis to operate in their home jurisdictions can set up a Canadian subsidiary through which they may conduct commercial operations. By establishing a Canadian corporate entity, operators can avoid the foreign eligibility requirements and apply through the normal SFOC process open to Canadian operators. For example, if a US corporation sets up a Canadian subsidiary, the Canadian entity can apply for an SFOC without having a COA or a SAC. Additionally, the Canadian entity would be eligible for the two new exemptions from the SFOC process (assuming the other exemption criteria are met).

If you liked this article, you may also be interested in:

• Transport Canada releases new framework for governing UAV operations
• Transport Canada relaxes commercial drone regulations, increases focus on academic use
• Commercial drone regulations: Canada vs. US

• Study shows most Americans are wary of commercial and personal drones
• Commercial drone use legal in USA? Who’s willing to make bail?
• Does the Small UAV industry need its own coalition?
• Snapshot of US UAV situation

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Source: Wikimedia Commons

As drones have become increasingly accessible, media outlets have been preoccupied with news stories that fuel our fears about the prospect of privacy invasion and physical harm. Although drones have only recently become mainstream, society has endured a long-held fixation with the need to regulate robots in order to save itself from coming into harm’s way.

This dystopian view of robots originates in Golem literature and the romantics. In 16th Century Jewish literature, Rabbi Loew of Prague created the Golem, a creature constructed from clay to protect the community from being expelled by the Roman Emperor. Rabbi Loew would deactivate the Golem on Friday evenings in preparation for the Sabbath. One Friday, the Rabbi forgot to deactivate the Golem, and it became a violent monster that needed to be destroyed. A similar theme emerged in Marry Shelley’s Frankenstein, in which a man-made monster turned against its creator.

The blueprints outlined in Golem literature and the romantics were further refined in the realm of science fiction. Writing just prior to the advent of the modern robotics industry, Asimov advanced three laws to negotiate the dangers associated with the introduction of robots into society proper. Asimov’s Three Laws of Robotics provide that:

• A robot may not injure a human being or, through inaction, allow a human being to come to harm;
• A robot must obey orders given to it by human beings; except where such orders would conflict with the First Law; and
• A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

Asimov later added a Zeroth Law that would supersede the Three Laws: a robot may not harm humanity, or by inaction, allow humanity to come to harm.

I posed the following question to Tony Dyson, designer of R2-D2, the brave and lovable droid who many perceive as the true hero of Star Wars: As robots become increasingly autonomous, do you think we will need Asimov’s laws? Here is what Dyson had to say:

I would love to say yes, all intelligent machines (autonomous robots) that are programmed to think for themselves, must also have an overriding ‘hard wired’ set of rules to work with. These should not be guidelines, but must be a set of laws, clearly defined by the ruling body. However the practical problem is, as Rodney Brooks, co-founder of iRobot has alluded to: ‘People ask me about whether our robots follow Asimov’s laws. There is a simple reason [they don’t]: I can’t build Asimov’s laws in them.’

 

So we ask the question, do we face any danger from robots without Asimov’s laws? I don’t see our AI research progressing into ‘Skynet Terminator’ anytime soon, but I may be just saying that, as part of my evil plan – there is a good reason why I share the same name as the ‘Head Robotic Scientist’ in the film Terminator.

Why do we fear robots? The term robot comes from the Czech word robota, which means forced labour. Simply put, we create robots to serve and fulfill our needs. However, advances in artificial intelligence are bringing us closer to achieving autonomous robotics. If and when robots become truly autonomous, we fear that they will no longer serve us – or worse that they will turn against us and destroy us. The consequence of our fear of robots is that we will systematically resist technological advances that may prove beneficial. The debate is yet to be settled on whether robot surgeons will err less frequently than their human counterparts, or whether driverless cars will decrease the number of accidents on our roads. The point is that if we resist these advances, such questions will remain unanswered.

How can we move forward and change our perceptions about robots? In Japan, robots are highly integrated into society and this may have something to do with the different cultural outlook on human-robot interaction. For instance, in 2007, Japan’s Ministry of Foreign Affairs designated Astro Boy as the nation’s envoy for safe overseas travel. In North America, Hollywood could play an important role in shaping positive attitudes towards consumer drones and robots.

Earlier this year, Clive Thompson published an article in the Smithsonian titled “Why Do We Love R2-D2 and Not C-3PO? Thompson explored how the design of robots impacts our reaction to them, arguing that: “R2-D2 changed the mold. Roboticists now understand it’s far more successful to make their contraptions look industrial—with just a touch of humanity. The room-cleaning Roomba looks like a big flat hockey puck, but its movements and beeps seem so “smart” that people who own them give them names.” And it appears that Hollywood does in fact inspire robot makers… Co-founder of iRobot, Helen Greiner recently posted a note on Dyson’s LinkedIn profile, stating: “Because of Tony’s compelling emotive design, I fell in love with R2D2 when I was 11. This enabled my whole career in robotics from attending MIT to cofounding iRobot, the company that makes the Roomba vacuuming robot. I hope you see a little of R2D2 in your Roomba!”

When do you need an SFOC?

An SFOC is required if you are operating a UAV that weighs more than 35kg for any purpose. Operators must also obtain an SFOC if they are flying for “work or research” purposes and they do not meet the requirements of either of the new exemptions (for instance, if the UAV weighs more than 25kg). Before outlining the exemptions, it is important to highlight that the “research” criteria reflects an expansion of the general SFOC requirement.

When can you avoid an SFOC?

If a UAV is not being used for “work or research” and it weighs 35kg or less, an SFOC is not required, however operators are still expected to engage in safe practices. Transport Canada has enumerated “safety tips” such as: flying during daylight, within sight; avoiding airports, populated areas and moving vehicles; and not exceeding an altitude of 90 meters.

Those operating UAVs for “work or research” may be able to benefit from two exemptions.  The first of these applies to operators flying UAVs weighing less than 2kg. The requirements that the operator must satisfy to qualify for this exemption include: age restrictions, carrying liability insurance, flying during daylight in direct line of sight, and flying at a distance of at least 30 metres from people, animals, buildings and vehicles not involved in the operation.

The second exemption applies to operators flying UAVs weighing between 2kg and 25kg for “work or research” purposes. This exemption features a more stringent spin on the requirements that apply to UAVs under 2kg (i.e. staying at least 150 metres away from people, animals, buildings and vehicles not involved in the operation). Additional criteria includes: developing and adhering to landing and recovery procedures and having a fire extinguisher on site.

Reflecting on the new exemptions, Brendan Schulman, a New York attorney representing commercial operators commented that “Canada’s new regulatory framework reflects a thoughtful risk-based approach and recognizes that at low weights and low altitudes, commercial drones do not pose serious safety risks. I hope our regulators in the United States take note of this alternative path to the future regulation of commercial drones.”

First, an SFOC will no longer be required for commercial operators flying UAVs under 2 kilograms. And second, commercial operators conducting low risk operations using UAVs under 25kg will also be exempt from the SFOC requirement. Transport Canada has yet to release information regarding the factors that will determine whether an operation falls into the parameters of the second exemption.

A closer look at the Transport Canada announcement suggests additional implications are on the horizon. Here is the relevant statement:

Until the new requirements come into effect, you must apply for a Special Flight Operations Certificate if:

1. Your aircraft weighs more than 35 kilograms (77 pounds).
2. You use your aircraft for work or academic purposes (such as aerial photography, geomatic surveying, crop observation, advertising, research and development).

The academic purposes concept seems to be a new addition to the SFOC requirement. Let’s trace the evolution of the terminology employed in determining whether an SFOC is required…

Transport Canada enforces the Canadian Aviation Regulations (CARs) and the Aeronautics Act. Subsection 101.01(1) of the CARs defines a UAV as a “power-driven aircraft, other than a model aircraft, that is designed to fly without a human operator on board.” Section 603.66 prohibits flying a UAV without complying with SFOC requirements.

Under the CARs, model aircraft means an aircraft weighing no more than 35kg that is mechanically driven or launched for recreational purposes. The CARs do not define “recreational purposes”. However, Transport Canada’s Staff Instruction No. 623-001 points to the definition in the Aeronautics Act which turns on whether there is hire and reward, which is defined as “any payment, consideration, gratuity or benefit, directly or indirectly charged, demanded, received or collected by any person for the use of an aircraft”.

A few weeks ago, Transport Canada published an infographic on its website to assist UAV operators in determining whether they need to apply for an SFOC. The infographic states that if you are not using the UAV for “work” and it does not weigh more than 35kg, you do not need an SFOC – still no mention of academic purposes. It appears that the notice regarding the two upcoming exemptions might be the first instance of the academic purposes terminology.

What are the implications of the new terminology? Without a definition of “academic purposes”, it is unclear how far reaching the effects of the terminology will be. Is the term meant to capture research and development activities taking place in academic institutions? Will it apply to student projects outside of research lab environments? Transport Canada will need to explain what is meant by “academic purposes” to ensure that UAV operators have clarity regarding the application of the SFOC requirements in academia.

Source: Wikipedia

When Canadians attempt to characterize aspects of Canadian culture, it’s not uncommon to draw comparisons with the US. I recently noticed that as I respond to questions about the Canadian regulations surrounding commercial drones, I often begin by stating that our regulatory framework is quite distinct from that of the US – here’s why…

In Canada, commercial operators can apply to obtain Special Flight Operations Certificates (SFOCs) from Transport Canada. It takes Transport Canada about 20 days to assess applications, and last year the agency issued 945 SFOCs to applicants representing a variety of industries including aerial videography, agriculture and oil and gas.

Generally, the Canadian regulations do not establish bright line rules governing drone operations – for instance they do not specify whether you need a pilot’s license to complete a commercial drone flight, or whether it is permitted to fly beyond the visual line of sight. Rather, Transport Canada assesses applications using a case-by-case approach. In order to obtain approval, applicants must show that they can mitigate operational risks to an acceptable level.

In the US, the Federal Aviation Administration (FAA) has been working to develop drone regulations since the enactment of the FAA Modernization Act of 2012. Until the framework is in place, those looking to fly for commercial purposes can only proceed by exemption. Most companies have been denied exemptions, the notable exceptions being a couple of oil companies that received approval to operate drones in remote areas of Alaska.

Last Thursday, the FAA extended regulatory exemptions to six Hollywood companies looking to film using drones. Although the Hollywood exemptions represent a move in a positive direction, the restrictions placed on the companies are quite onerous, for instance the operations must take place in a controlled closed-set environment and may only be completed below 400 feet and within the visual line of sight.

By comparison, commercial drone operations are the norm in Canada and will continue to be an exception in the US until the new rules are in place.

The information contained herein should not be regarded as legal advice.