Drones – They Continue To Fascinate

There has been rapid growth in various ways that Drones or Unmanned Aerial Vehicles (“UAVs”) or Unmanned Aircraft Systems (“UAS”) are being used.

The development of technologies for drones such as geo fencing, collision avoidance and the other general safety mechanisms has increased their attractiveness, and contributed to their growing popularity.

Issues Arising out of the Use of Drones

Allowing the civilian and commercial use of drones, in addition to its military usage, has brought out its own set of problems. Perhaps the biggest threat posed by drones is to privacy and security. Apart from the obvious issue of trespassing and infringement of personal space, such technology can also pose a threat to the security and stability of Government establishments, which is a major concern.

While trying to address the above issues, regulators have also faced certain other problems while drafting regulations/laws. Some of the issues are:

  1. Drawing a line between the commercial use of drones (considering its many use-cases), while protecting privacy, safety, and national security.
  2. If a drone flies over another person’s property, but takes no images or data, and causes no harm to the property, should it qualify as trespass?
  3. Addressing the concerns of privacy vis-à-vis admissibility of the evidence/data collected by drones in a court of law.

International Regulations on the Use of Drones

Many countries around the world, as well as multilateral organisations, have attempted to provide a regulatory framework for drone-related laws, some still in the draft form. The International Civil Aviation Organisation (ICAO), which falls under the United Nations, released Circular 328 AN/190 in 2011, in order to create international standards for the operation and use of drones or UAS. The circular aims to facilitate the development of regulations that will enable the highest possible level of safety, in a uniform manner across the globe, along with Standards and Recommended Practices (SARPS) and a Procedure for Air Navigation Services (PANS). Vide the circular, ICAO aims to create stringent minimum performance requirements and technical specifications that determine airworthiness. As per the ICAO, since the development of a complete regulatory framework will take time, adhering to the SARPS (which will be added to gradually) will be sufficient for the time-being and also aide in the future evolution of the regulatory framework.

Apart from the ICAO, it is also pertinent to look at some of the country-specific laws enacted around the world. In the below table, we attempt to compare some of these laws in terms of some of the common themes that cut across all of them:

Parameters United States of America Singapore Australia China U.K.
Relevant Regulatory Authority U.S. Federal Aviation Administration (FAA) Civil Aviation Authority of Singapore (CAAS) Civil Aviation Safety Authority (CASA)  Civil Aviation Administration of China Flight Standards Division (CAAC) Civil Aviation Authority (CAA)
Regulation in Effect FAA Regulation, Part 107 Unmanned Aircraft (Public Safety and Security) Act 2015 Civil Aviation Safety Regulations 1988, Part 101 UAS Operation Rules Air Navigation Order 2009, Articles 166 and 167
Licensing Requirement The Pilot requires a Remote Pilot Airman Certificate;

OR

The pilot should be under the direct supervision of a person who holds the above certificate.

A certificate authorizing the general operation of the UAV is required (the Operator Permit).

A separate permit is required prior to operation, depending on the purpose and area of operation.

Additional permits are required for the discharge of any object from UAV/for photography.

UAVs between 2-25kgs- no license is required.

for above 25 Kgs – the pilot requires a Remote Pilot License.

Additionally, a certificate authorizing the operation (the UAV operator’s certificate or UOC) is required prior to operating/flying the UAV.

For Large UAVs (as calculated by weight/size below), a special certificate of airworthiness or an experimental certificate is required, depending on the use.

UAVs weighing between 7kg – 116kg – a license from CAAC.

UAV weighing over 116kg – a pilot’s license and a separate UAV certification for operation.

UAVs below 20kg – a license from the Civil Aviation Authority.

Drones between 20–150 kg are subject to all articles of the Air Navigation Order

Operators of all UAVs require a certificate of airworthiness and a permit to fly.

Weight/ Size Requirements UAVs are defined as being less than 55 lbs (25 kg). To fall under the above licensing requirements, the UAVs must be more than 7 kgs. Very small: less than 2kgs/4.4lbs.

Small: (2–25 kgs/4.4–55lbs)

Medium: (25–150 kgs/55–330.7lbs)

Large: more than 150 kgs/330.7 lbs

All drones must weigh between 7kg – 116kg For commercial use – drones must be below 20kgs.

For non -commercial use – 20–150 kgs.

Height Restrictions during Flight Maximum altitude of 400 feet above ground level. No limitation on height. At heights greater than 400 feet above ground level, the UAV may be operated only in designated areas of controlled airspace/approved areas and in accordance with air traffic control clearance. Not specified. No flight within:

-150 meters of, or over, a congested area; OR

– within 150 meters of, or over, an organized open-air assembly of 1,000 or more people; OR

– within 50 meters of any vehicle, person, or structure that is not under the control of the operator;

Speed Restrictions Maximum groundspeed of 100 mph (87 knots). No speed limit mentioned. No speed limited mentioned. Maximum ground speed of 100 kph. No speed limit mentioned.
Additional norms Operations allowed only 30 minutes before official sunrise to 30 minutes after official sunset, local time, with appropriate anti-collision lighting. Can be flown only in clear weather conditions, with proper visibility No operations within 30 meters of a person not associated with the operation of the UAV. Different rules applicable to over 7 different types of drones. Operators of UAVs weighing over 20 kgs are required to obtain adequate levels of insurance cover in case of an accident.

Note: In the USA, in addition to the Federal Aviation Authority, multiple States have passed laws and regulations pertaining to the use of drones in their respective territories. However, under 49 U.S. Code § 40103 (Sovereignty and use of airspace), the “United States Government (and hence the FAA) has exclusive sovereignty of airspace of the United States”. This leads to the understanding that the FAA is the primary American authority responsible for the regulations and control of all American airspace, including the kinds of objects/machines that may be operated in the same. In pursuance of this understanding, the FAA released a Fact Sheet on December 17, 2015, on the State and Local Regulations of Unmanned Aircraft Systems (UAS). As per the Fact Sheet, the FAA noted that the maintenance of a “navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system”. In order to maintain the above uniformity, the FAA noted that any state laws dealing with restrictions on matters that fall under the FAA’s jurisdiction (such as those pertaining to flight altitude, flight paths, restricted airspaces etc.), need the prior verification of the FAA. Additionally, state laws dealing with bans or restrictions on specific used of UAVs, and crimes and punishments related to such usage, could be enacted without the FAAs verification.

Civil Use of Drones – Indian Regulatory Framework

The regulations pertaining to the commercial and civil use of drones in India has already been covered by us in a previous blog post. To summarise, the civil and commercial use of drones (even for recreation and personal purposes) in India is currently prohibited for both individuals and entities, unless express permission for a particular use/situation is taken from the Director General of Civil Aviation (“DGCA”), Ministry of Defence, Ministry of Home Affairs, and any other agency/body relevant to the purpose for which the drone is being used.

Unfortunately, no specific format exists via which individuals/entities can apply to the relevant government bodies for permission to use drones. Further, since the introduction of the ban in 2014, the public notice has been flouted multiple times by individuals and entities using drones for private and commercial purposes. Filming weddings via drones continues to be a popular use case, and while the enforcement of the ban on drones by the law-enforcement agencies has not been meticulous, those using drones continue to run the risk of being apprehended by the police.

While the above ban persists, the DGCA has released its proposed regulations in the form of Draft Guidelines. These Draft Guidelines are yet to be notified. However, for the purposes of this post, we will be covering certain important aspects of the Draft Guidelines in the context of the parameters used in the table above, in order to understand the potential impact the Draft Guidelines may have:

1) Regulatory Authority: The DGCA.

2) Weight/Size Classifications:

  • Micro – Less than 2kgs.
  • Mini – Between 2-20kgs.
  • Small – Between 20-150kgs.
  • Large – Greater than 150kgs.

3) Licensing Requirement: All Civil UAS’s in India will require a UIN from the DGCA, which helps with accountability. The UIN can be obtained only by Indian citizens and by Indian companies. Remote pilots (the individuals piloting/controlling the UAS’ remotely), will require to be practically trained in accordance with the standards given under S. 8 of the Draft Guidelines. However, this requirement will not apply to pilots engaged in operating micro category UAVs or recreational flying under a height of 200ft above ground level.

4) Height/Altitude Restrictions: No restrictions for UAV’s operated below 200ft above ground level in uncontrolled airspace. UAS operating at or above 200ft above ground level in uncontrolled airspace, or at any height in restricted or prohibited airspace, will require a UA Operator Permit (the “UAOP”).

5) Speed Restrictions: Not provided.

6) Additional Information (includes):

  • UAS’ will have to be maintained in accordance to the procedures stipulated by the manufacturer.
  • The operation of a UAS has to be accompanied at all times by an intimation to the local administration, Air Traffic Service unit, Bureau of Civil Aviation Security of India, and Aerodrome operators before commencement and after termination of operation.
  • The UAS should be operated in accordance with the rules governing the flights of manned aircraft as specified in the Civil Aviation Requirements, Section 9, Series C, Part 1 (Rules of Air), as issued by DGCA.

While the above Draft Guidelines seek to make a good start to addressing the important issues around the topic, there are certain shortcomings:

  • Firstly, the Draft Guidelines exclude those flying drones for recreational purposes (and under a height of 200 ft.) from needing to apply for a UAOP. However, the term “recreational purposes” requires to be defined, so that there is clarity on the activities that would fall under this category. Further, the purpose of not requiring a UAOP is slightly defeated by requiring the drone operators to intimate the above-mentioned authorities both before and after the flight.
  • Secondly, the Draft Guidelines must lay down specific regulations for the protection of the privacy of other individuals/property/data. This is globally recognised as one of the biggest threats that can be caused by the commercial and civil use of drones. The Draft Guidelines merely state, in clause 10.4, that “Privacy and Protection of Personnel/ property/ data shall be given due importance”. What this includes, and precautions to be followed by the drone operators on this front should be elaborated.
  • Thirdly, while the Draft Guidelines certainly seek to provide maximum safety for both the users and third-parties involved, with the number of permission and compliances required to operate drones it is difficult to determine whether this may actually dis-incentivize people and companies from using drones.
  • Fourthly, the Draft Guidelines are silent on one critical aspect – the manufacture of drones/UAVs. This is extremely important in ensuring that all drones used in India are of a certain minimum standard, and made with the best materials and technology. Additionally, the Guidelines contain no provisions as to penalties and/or punishment that may be applicable in case of a breach of any of the conditions stipulated under them.
  • Finally, many international regulations contain specific conditions depending on the way a drone is being used (for example, if it is being used in agriculture, for surveys, for scientific research etc.). This accounts for the fact that different industries/uses require drones to be specialised in different aspects. The Draft Guidelines do not address sector-specific concerns. If India were to further develop their guidelines and grow along with the international sphere, it would make sense to make these guidelines robust.

Some Examples of the Commercial Use of Drones

With clear guidelines, the country can take advantage of use cases in the following:

  1. Agriculture – drones have eased the process of planting of seeds, by carrying pods containing seeds with their nutrient requirement and then shooting them into the soil, which have resulted in 75% uptake in the volume of crops grown via these seeds, and almost 85% decrease in costs.
  2. Soil Analysis – used for soil analysis at the beginning of the crop cycle, providing data pertaining to irrigation and nitrogen level management, helping the farmers to care for their crops and allowing them to identify the exact deficiencies.
  3. Survey & Mapping – Use by surveyors and GIS professionals for large scale mapping and surveying. In the field of construction, drones have been used to check the status of projects, allowing those responsible to remotely identify the location of equipment, take a quick aerial view of the construction site, and to make of 3D models of the same.
  4. Miscellaneous – In an innovative move, some insurance companies have also started using drones, to survey the damage in the area of the accident instead of relying entirely on manual investigations. Utility companies have started using drones to inspect their electrical connections/pipelines etc. in remote areas.

Conclusion

Drone technology has multiple use-cases, but this needs to be balanced with the various security/privacy concerns that they give rise to. Since the release of the Draft Guidelines, the DGCA and Indian Government have been silent with respect to any further developments. If India is to join the large number of countries that are beginning to exploit the multiple uses of drones, then it will be pertinent to notify the guidelines soon, addressing the major concerns.

Authors: Nayantara Shankar, Intern and Madhav Rangrass, Associate

Disclaimer: The information contained in this post is for dissemination purposes only and shall not be relied upon as any opinion or advice, in any way. For any help or assistance please email us on relationships@novojuris.com

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