Evolving Law on Airport Implications by Unmanned Aerial Systems (2017)

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59 obtained insurance specific for UAS operations. In a 2016–2017 survey of members of the AAAE (see Figure 18, above), for example, 68% of respondents indicated that they did not have any type of insur- ance for UAS airport operations.486 Of the remaining 32% of respondents, 20% had both commercial gen- eral liability insurance (CGL) and aviation-specific (though not necessarily UAS specific) insurance.487 Finally, of the respondents who have any kind of air- port insurance, 8% had CGL only with 4% having UAS-specific insurance only.488 Yet another class of respondents indicated “unknown,” “unsure,” “self- insured,” and “we are working with underwriters on a policy.” 489 Undoubtedly, the need for insurance depends on the existence of a risk. Thus, many air- ports may not have UAS-specific insurance either because the risk posed by UAS in the airspace over, near, at, and around airports is small or unknown. To the extent the risk is known and significant, best practices suggest obtaining insurance and verifying coverage for aircraft exclusions, data breach and data security claims, invasion of privacy and similar torts, and non-owner policies.490 IX. INTERNATIONAL PERSPECTIVE The use of drones—also sometimes referred to as “remotely piloted aircraft systems” (RPAS) by the international aviation community—poses a poten- tial risk and opportunity to airports and airlines around the world. The military dimensions of UAS in the Middle East grab the most headlines as a function of enduring civil wars and international protect from all claims and damage to property or bodily injury which may arise from operations under the application or in connection therewith subject to an assessment by risk management.481 Meanwhile, the National League of Cities has asserted that, “[u]nder Part 107, operators may fly close to municipal airports, jeopardizing the safety and security of those facilities.” 482 Given this, it has recommended that state and local governments use their land use and zoning authority to designate areas where the takeoff, landing, and operation of drones is not permissible without the operator first satisfy- ing some criteria such as providing telephonic or electronic notice to the airport, the city, or otherwise obtaining permis- sion or a permit of some type. State and local governments can leverage the low cost electronic notice tools that are already deployed at municipal airports to handle recre- ational operator notifications.483 While UAS law at the local, state, and federal law is in flux, airport sponsors have identified obtaining insurance as a best practice. Major commercial aero- space companies offer UAS insurance, including coverage that extends to third party liability and damage to the UAS itself and/or its payload. In fact, the types of aviation markets that are being insured are as varied as the potential coverage offered, from agriculture to geophysical survey to aerial videogra- phy. Insurers in the space generally have the same underwriting concerns, e.g., applicant and operator identity and qualifications, use (i.e., model or com- mercial), type of aircraft, loss of control, and risk to third parties. However, some policies have a special endorsement for premises impacted by UAS opera- tions.484 Given that general liability policies exclude coverage for collisions above an airfield, airport sponsors and managers have suggested obtaining specific UAS insurance rather than litigating the applicability or inapplicability of exclusions after an event happens.485 Notwithstanding its importance and availability, many airport authorities seem not to have yet 481 Id. 482 nAt’l leAgue of Cities, Cities And drones: WhAt Cit- ies need to knoW About unmAnned AeriAl VehiCles (UAVs), 2016, at 33. 483 Id. 484 See Appendix E. See also AIG Aerospace, Unmanned Aircraft Insurance Application, http://www.aig.com/content/ dam/aig/america-canada/us/documents/business/industry/ aerospace-unmanned-aircraft-insurance-application-app- 19-form.pdf; USAIG, Unmanned Aircraft Systems (UAS) Insurance Application, https://www.usau.com/_files/USAIG/ applications/Fill/Unmanned_Aircraft_System_UAS_ Insurance_Application.pdf. 485 rAViCh lAW firm, PLLC, UAS and Airports: Survey (2016–2017). 486 Id. 487 Id. 488 Id. 489 Id. 490 Id. Figure 18. Airport Sponsors with UAS Insurance

60 airport—the third busiest in the world—was forced to shut down three separate times because of unau- thorized drone activity, with the most recent shut- down requiring the diversion of flights and the closing of the airport for 90 minutes at a cost of $1 million a minute.496 Dubai’s experience is not iso- lated as Polish aviation authorities are currently revising their RPAS regulations as a reaction to a near collision between a drone and a commercial jet- liner at Warsaw Chopin Airport.497 Surveying these and other experiences of interna- tional airports can assist U.S. airports in gaining insight into their own issues with UAS operations in the airspace over, near, at and around airports. In the jurisdictions overseas in which drone flights are allowed, aviation authorities generally require that UAS operators obtain regulatory approval before fly- ing for private or commercial purposes.498 In fact, the majority of nations that have regulated UAS have settled on categorizing drone operations according to the physical and operational properties of the air- craft.499 Thus, operators must generally make a safety case and qualify their users, aircraft, and mis- sion through a certification or permitting process.500 Careless or reckless conduct in almost any jurisdic- tion is punishable civilly and/or criminally.501 Until the enactment of Part 107, the FAA was the target of significant criticism as it missed a 2015 deadline imposed by Congress to implement a plan to integrate drones into the NAS. The aviation industry now generally agrees that Part 107 is a workable and positive framework for civil and com- mercial UAS, albeit incomplete (i.e. pursuant to the FAA’s incremental and phased-in approach, rule- makings are contemplated for the higher risk UAS operations involved in beyond visual LOS and flight over people). In fact, Part 107 brings the U.S. in line intervention in the region.491 Yet, leading drone man- ufacturers hale from Israel and Turkey while the United Arab Emirates (UAE) has taken an active role in the civil and economic development of UAS, spon- soring a “Drones for Good” contest that offers a finan- cial reward to domestic and international innovators who offer “practical, realizable solutions for improv- ing people’s lives today.” 492 Tournaments like these are reminiscent of competitions at the beginning of the last century in which prizes were offered to early aviators like the Wright Brothers and Charles Lind- bergh, encouraging innovation and making possible broad acceptance of new technologies. Like many authorities around the globe, the UAE has provided operational guidance for drone opera- tors.493 The UAE created three operational catego- ries for public and private operators: low capacity drones (not exceeding 25 kg in weight), mid-capacity drones (ranging from 25 kg to 150 kg), and advanced capacity drones, exceeding 150kg.494 Regulatory momentum for integrating drones into the general airspace halted in March, 2015, however, when the Department of Economic Development banned the use and sale of recreational drones after a recre- ational drone flew too close to critical flight paths and forced the suspension of all flights at Dubai International Airport.495 In addition, in 2016, Dubai’s 491 See, e.g., Ben Keslin, Islamic State Drones Terrorize Iraqis, WAll. st. J., Feb. 27, 2017, at A8 (“Iraqi forces have grown accustomed to enemy drones flying over the battle- field since Islamic State seized swaths of the country in 2014. They have used rifle fire and high-tech gadgets to counter them, and even have drones of their own. But the militants have finetuned their drone technology. What were once improvised, remote-controlled model planes are now commercially available quadcopters—drones with four helicopter-like blades—retrofitted to carry grenades that can be dropped over targets.”). 492 The UAE Drones for Good Award, https://www.drone- sforgood.ae/. See, e.g., Timothy M. Ravich, Assessing “Drones for Good” – Public UASs in the Middle East, http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2534815. See also Timothy M. Ravich, Assessing ‘Drones for Good’— Public UASs in the Middle East, International Aviation Management Conference, Emirates Aviation University, Dubai, United Arab Emirates (2014). 493 united ArAb emirAtes, generAl CiVil AViAtion Authority, https://www.gcaa.gov.ae/en/pages/search_results. aspx?k=uas. 494 Dubai Introduces New Laws Regulating RPAS, (Apr. 16, 2015), http://www.arabianaerospace.aero/dubai- introduces-new-laws-regulating-rpas.html; Amy Sambidge, UAE Says Drafting New Regulations for Using Drones, business.Com, (Feb. 22, 2015), http://www.arabianbusiness. com/uae-says-drafting-new-regulations-for-using-drones- 583038.html. 495 Anwar Ahmad, Sale of Recreational Drones Banned in Abu Dhabi, the nAtionAl, (Mar. 11, 2015), http://www. thenational.ae/uae/sale-of-recreational-drones-banned- in-abu-dhabi. 496 Zahraa Alkhalisi, Dubai Deploys a ‘Drone Hunter’ to Keep Its Airport Open, CNNteCh, Nov. 4, 2016, http:// money.cnn.com/2016/11/04/technology/dubai-airport- drone-hunter/. 497 urzAd lotniCtWA CyWilnego, Regulations of Drones in Poland, http://www.ulc.gov.pl/en/270-english/current- information/3806-safe-sky-regulations-on-flying-drones- in-poland. See also Lufthansa Plane Almost Hits Mystery Drone Midflight, HUFFPost, (July 21, 2015), http://www. huffingtonpost.co.uk/2015/07/21/lufthansa-plane-nearly- collides-with-drone-near-warsaw-airport_n_7840668.html. 498 E.g., timothy m. rAViCh, CommerCiAl drone lAW: digest of u.s. And globAl uAs rules, poliCies, And prAC- tiCes (AmeriCAn bAr AssoCiAtion 2017), at ch. 11. 499 E.g., timothy m. rAViCh, A CompArAtiVe globAl AnAl- ysis of drone lAWs: best prACtiCes And poliCies in the future of drone use: opportunities And threAts from ethiCAl And legAl perspeCtiVes (Spring 2016). 500 Id. 501 Id.

61 within 1.5 km of airports within a no-fly zone over the government district in Berlin.510 • Cayman Islands. Effective February 1, 2016, the Civil Aviation Authority of the Cayman Islands (CAACI), under the provisions contained in Articles 4 and 6 of the Air Navigation (Overseas Territories) Order 2013, issued a Direction to restrict the use of small unmanned aircraft in the vicinity of Owen Roberts International Airport, Charles Kirkconnell International Airport and Edward Bodden Aerodrome to mitigate the risk of collision between manned and unmanned aircraft.511 • Canada. Canada had the first comprehen- sive UAS regulatory framework in North America. Under the rules, drones weighing under 2 kg could be flown for any purpose without permission and without informing Transport Canada while drones weighing between 2.1 kg and 25 kg could be flown only if Transport Canada is informed of the type and location of flight.512 Canadian aviation officials also required UAV flights to stay below 90 meters, within line of site, far from airports, populated areas, and moving vehicles.513 Additionally, “work or research” drone operators must have $100,000 liability insurance, and all drones must give right- of-way to manned aircraft.514 (See Figure 19.) In March 2017, Transport Canada issued an Interim Order Respecting the Use of Model Aircraft, putting into effect new recreational UAS laws that are arguably more restrictive than recreational drone laws in the United States.515 The rules apply to non- commercial drones weighing less than 77.2 lbs. (approximately 35 kg) and establish fines up to $3,000 Canadian (approximately US$2,248).516 Given that incidents involving drones at Canadian airports with drone rules around the globe, a few examples of which are as follows: • Australia. Australia was among the first countries to produce drone rules.502 Since 2002, all drone operators are required to hold a valid Operator Certificate before operating for commercial pur- poses.503 Approval is needed for all operations not conducted in a “clear designated airspace, aero- dromes and populous areas and remains below 400 feet AGL.” 504 Typically, approval does not need to be granted for civilian drone use, however operators must stay at least 30 meters away from others, keep their drones under 400 feet and within line of sight, and drones must not be operated above a large gathering of people or within 5 km of an airport.505 • Japan. UAS flight is prohibited below 150 me- ters or less than 9 kms (5.6 miles) away from airports. • France. France was one of the first countries to regulate commercial drone use, and pursuant to two orders of April 2012, France established gener- al rules on the use of RPAS (weighing from 2 kg to 150 kg) for leisure, competition, specific activities, and aerial work, etc.506 France’s Directorate Gener- al of Civil Aviation has classified drones into seven operational categories based on mass.507 All opera- tions are forbidden in the vicinity of airports, and subject to prior authorization over populated areas. Illegal RPAS operations carry a maximum sentence of a year in prison, as well as a $90,000 fine.508 • Germany. Excluding sport or recreational aircraft, civilian drones are recognized as aircraft under a recent amendment to the German Aviation Act. Private and commercial operators of drones weighing more than 5 kg must apply for a flight permit from the relevant national authority and must show proof of insurance.509 UAVs cannot fly 502 E.g., timothy m. rAViCh, CommerCiAl drone lAW: digest of u.s. And globAl uAs rules, poliCies, And prAC- tiCes (AmeriCAn bAr AssoCiAtion 2017) at ch. 11. 503 Id. 504 Id. 505 Id. 506 http://www.developpement-durable.gouv.fr/Quelle- place-pour-les-drones-dans.htm. See generally Rudy Ruit- enberg, What the French Know about Drones that Ameri- cans Don’t, bloomberg business, (Mar. 16, 2015), http:// www.bloomberg.com/news/articles/2015-03-16/what-the- french-know-about-drones-that-americans-don-t. 507 http://www.civicdrone.com/news/regulatory-news- about-uav-in-france-c10027.html 508 http://drones.newamerica.org/#regulations. 509 See generally Wilde Beuger Solmecke, Civilian Drones and the Legal Issues Surrounding Their Use, (Feb. 18, 2014), https://www.wbs-law.de/internetrecht/civilian- drones-legal-issues-surrounding-use-50459/. 510 See bundesministerium für Verkehr And digitAle infrAstruktur, Kurzinformation—über die Nutzung von unbemannten Luftfahrsystemen, http://www.bmvi.de/ SharedDocs/DE/Publikationen/LF/unbemannte-luftfahrt- systeme.pdf?__blob=publicationFile. 511 CiVil AViAtion Authority of the CAymAn islAnds, Press Room, Direction to Restrict the Operation of Small Unmanned Aircraft in the Cayman Islands, (Feb. 2016), https://www. caacayman.com/direction-to-restrict-the-operation-of- small-unmanned-aircraft-in-the-cayman-islands/. 512 E.g., timothy m. rAViCh, CommerCiAl drone lAW: digest of u.s. And globAl uAs rules, poliCies, And prAC- tiCes (AmeriCAn bAr AssoCiAtion 2017) at ch. 11. 513 Id. 514 Id. 515 See http://www.tc.gc.ca/eng/mediaroom/interim-order- respecting-use-model-aircraft.html. 516 Id. See Transport Canada, Flying Your Drone Safely and Legally, https://www.tc.gc.ca/eng/civilaviation/opssvs/ flying-drone-safely-legally.html.