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Retail Law Advisor

What’s The Buzz Over Drones?

Posted in Retail, Technology

Technology has rendered irrelevant the longstanding debate over whether good fences make good neighbors. Authorities in New Jersey recently arrested a man after he shot down a neighbor’s drone that was flying above his property and recording pictures of his home. The law frowns on self-help, however, especially when it involves the discharge of a firearm in a residential neighborhood.

Although the Garden State all too often finds itself at the forefront of legal and cultural controversies, the growing debate over Unmanned Aerial Vehicles (UAVs)—better known colloquially as “drones”—is a nationwide phenomenon. The New Jersey incident followed an odd effort by a Colorado town to authorize drone-hunting licenses with bounties; a Montana Congressional candidate’s campaign video featuring him shooting down a government drone; and a Utah firearms company’s promotional video featuring the exploits of the eponymous “Johnny Dronehunter” character. The growing popularity and sophistication of UAVs all but guarantees future collisions of property, criminal, and privacy law issues with the application of Second Amendment rights.

These unanswered legal questions parallel the legal ambiguities with commercial UAV use. The ability to operate a relatively inexpensive aerial vehicle mounted with powerful cameras and sensors has unlimited business applications. Drones have been deployed for filming marketing and advertising videos; for inspecting land, construction sites, buildings, and other infrastructure; for agricultural purposes; for news media coverage; and for short-range deliveries of medication. Mega-retailer Amazon.com made news last year with plans to develop a drone-delivery service, and a start-up in San Francisco is working on a taco drone-delivery service called the TacoCopter. Even Martha Stewart has joined the ranks of drone owners.

Despite the growing commercial interest in UAVs, the Federal Aviation Administration (FAA) maintains the position that commercial uses of UAVs are prohibited. At the moment, so-called “Civil Operators” are limited to using UAVs for research and experimental purposes. Mostly academic institutions and defense contractors have obtained permission from the FAA under this exemption, although some commercial businesses have sought permission as well. For example, ConocoPhillips received permission to fly UVAs for mammal surveys, for ice surveys, and to aid oil-spill response teams in Alaska. This limitation to research and experimental purposes greatly limits the permitted uses of UAVs and limits the growth of innovative businesses that could otherwise incorporate UVA capabilities into their products and services.

All is not lost, but merely delayed. The FAA is working on proposed regulations for the commercial use of UAVs. These regulations were required by September 2015 under the FAA Modernization and Reform Act of 2012, but reports indicate that the FAA will miss that deadline. In the meantime, the FAA has issued cease-and-desist letters to businesses using UAVs. The FAA’s limited personnel and resources means that many businesses have decided to take the risk of using UAVs for commercial applications despite the uncertain legality.

There is an interesting case pending that may provide grounds for immediate commercial use. The FAA fined a well-known commercial UAV operator for recording aerial footage of the University of Virginia for an advertising campaign and the operator decided to fight the fine. An administrative law judge agreed with the operator’s arguments and dismissed the FAA’s enforcement action. The judge found that the UAV in question did not qualify as an “aircraft” under FAA regulations. The judge also found that the FAA did not have regulatory authority to prohibit commercial UAV use because the FAA had not followed the required rulemaking process. See Administrator v. Pirker, FAA Case No. 2012-EA-210009, NTSB Docket No. CP-217 (2013). The FAA has appealed this decision to the National Transportation Safety Board (NTSB). A decision from the NTSB in the Pirker case may provide interim permission to operate UAVs until the FAA issues formal regulations.

It seems only a matter of time until companies are permitted to make commercial use of the exciting capabilities that UAVs offer. For the time being, however, retailers and other businesses are cautioned against using UAVs for commercial applications until the FAA issues commercial-use regulations.