An Interview with “The Drone Lawyer,” Brendan Schulman

Brendan Schulman, “the drone lawyer,” is Special Counsel in the Litigation Department at the law firm Kramer-Levin, where he heads the firm’s Unmanned Aircraft Systems practice. He successfully defended Raphael “Trappy” Pirker in the first-ever federal case involving the operation of a commercial drone in the United States. He has two decades of hands-on experience with unmanned aircraft technology, and has been quoted in hundreds of news media outlets on the topic of Unmanned Aircraft Systems and is frequently invited to speak on the topic. At the time of this interview, he counted 3D Robotics among his many clients.

The FAA just announced it will issue exemptions for filmmakers to begin using drones for cinematography on set. Can you explain what these exemptions mean?

Earlier this year the FAA said that it would start to consider exemption requests for limited commercial use of drones. The first set of applicants were cinematographers, some of whom will now be granted exemptions. However, an FAA exemption alone doesn’t give a filmmaker the right to fly, but rather the ability to apply for permission to fly. Each job still needs to get approved for specific sets, locations, etc.

A bunch of burdensome regulations also apply: The FAA requires a flight crew of three people; one of the crew must be an FAA licensed pilot; and the 400 ft. flight ceiling is measured from the ground up, meaning you couldn’t fly a foot above a 400-foot rooftop, if you wanted to film that from above. Essentially these filmmaking operations are being treated as if they’re full, manned aircraft operations.

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But they’re replacing those manned operations.

Exactly. I think what the filmmakers are doing is actually using the drone more like a camera crane or boom, not flying very high very often. Obviously a drone doesn’t pose nearly the same hazard as a full-size helicopter, but the FAA treats it that way. And these regulations make it more burdensome to take aerial cinematography than to get into an ultralight vehicle and fly yourself in an actual airplane. No licensing required there.

For me, the real worry about these stiff filmmaking regulations is that the FAA is courting a very real risk to innovation. Making it this burdensome will outweigh and possibly torpedo possible future benefits. But it really doesn’t surprise me that this is their starting point. We’ve seen for a long time that the FAA has a very conservative approach to any new technology, and this reflects that philosophy.

For instance, the FAA has been working on integrating Next-Gen Air Traffic Control systems for over a decade now; they’re way behind and way over budget. The agency is simply not historically good at adapting to new technology, and for good reason in the context of passenger travel. But personal drones are simply not in the same category as an airplane. We need a new paradigm for this new technology, because new technology simply doesn’t exist in current frameworks; I mean, look at Über, Airbnb, digital music, smartphones, the list is endless. So the question here is, if drones aren’t engaged in transportation, why are we in the same framework as transportation?

Sure. But there are legitimate concerns about safety, such flying over crowds and populated areas, near airports. What risks are there?

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I think very little, actually: There’s no one on board, the products are decreasing in weight and size, the technology is improving, the safety mechanisms becoming more advanced. Obviously pilots should exercise caution when flying drones in more complex environments, such as near crowds. But we should also acknowledge that if there’s an injury it would surely be minor, not anything near what might be inflicted by a manned copter or airplane.

We can support this claim, in fact, because we’ve accumulated decades of knowledge and experience with injuries related to model aircraft. And not only are injuries highly unusual, they result in only bumps and scrapes. There have been only two reported deaths in connection with model aircraft activity, and very few serious injuries, most of which involved people stunt flying too close to themselves with large and aggressive copters. Drones have a slower rotor speed, smaller propellers, and on-board safety mechanisms like Return to Launch. Serious safety concerns are comparatively minimal. It doesn’t make sense that the FAA should devote its resources to bumps on the head.

Obviously there’s a desire to prevent collision with a passenger airplane. We’re all interested in preventing that possibility. But right now we’re talking about flying in isolated areas, like on farms, and on movie sets — there are no planes flying through there. We should build on the decades of experience of safe use of model airplanes by hobbyists in terms of avoiding manned air traffic.

Why do the regulations concern you enough that you’ve taken up these cases?

Well, we would reduce the number of companies who can innovate, we’d lose a lot of opportunity to do good, and we’d increase the burden of getting involved. I mean, I can’t believe that Congress or the country wants robotics companies that are testing small components to have to go get regulatory approval. Something like that makes perfect sense for a multimillion-dollar passenger aircraft, to have everything planned in advance, but for small-frame, personal technology, the framework doesn’t make sense. We need to enable this technology. It can do all of us a whole lot of good.

The FAA is rumored to be considering issuing exemptions for drone applications in agriculture. Can you speak to that?

3DR drone doing work in precision agriculture.

Agriculture is one of the biggest applications for the technology. It’s obvious that taking an aerial view would help farmers better see and learn what’s going on on their land. Not only is the practice economical, but it’s environmentally friendly. And most of those fields are in remote locations, so concerns are minimal.

The FAA has expressed concern about drones interfering with crop-dusters, when crop-dusting itself is actually one of the most dangerous jobs in the country — top three or five, I think — crashing into power lines and antennae and such because they fly so low. So that’s another thing that doesn’t make sense: Holding back promising technology because of an aviation operation that is historically unsafe. The FAA would have said no to crop-dusters today: Planes that fly 50 feet above a field and then back through a pesticide cloud?

But twenty years ago in Japan, Yamaha crop-dusting drones were developed and implemented at the insistence of the Japanese government. Now that’s an example of the kind government leadership that we need here in order to take on these issues and logically integrate the technology.

Any updates on the FAA’s case against Trappy?

Trappy’s case is still pending on appeal. In the interim I’m representing a number of commercial drone companies as well as the Academy of Model Aeronautics in lawsuits against the FAA concerning their June interpretation, which purports to impose new restrictions on both recreational and model aircraft. There’s concern about what the FAA is imposing on model aircraft, statements that seem to preclude commercial activity that wasn’t precluded before. And that pending litigation matter could further impact the development of drone regulations.

There is the interesting case of Texas EquuSearch, a search and rescue organization based in Texas that was able to obtain emergency approval from the FAA to use a drone in a rescue operation. However, the drone they were using came from a government agency — the National Institute of Standards and Technology, which is part of the Department of Commerce — who were using a government-approved MLB Superbat drone to do wildfire studies. The agency’s research was concluded and their drone was sitting around, and Texas EquuSearch had the opportunity to use it. I was glad to see the FAA and EquuSearch cooperating, and was happy to have that result, to see this technology embraced and applied for a good purpose. But it wasn’t a blanket approval for the team, just a one-time use for three days. The stars aligned nicely because a government agency happened to have a drone and wasn’t using it. So does this reflect a long-term approval for search and rescue technology? It’s not clear how often that situation would come up; it seems pretty unique.

I’d like to reiterate that the real question here is where the value of this technology is going to end up. Will it get realized by the end users who are making and building and innovating, or will it get caught up in a heavy-handed regulatory scheme where a lot of the efficiency will be lost in getting approval and licenses? That’s a real question for the country about what the approach should be in the long run. We seem to be heading down a road to regulations that will look a lot like full-blown aviation regulations. The question for everyone is whether that’s what we need to achieve the appropriate level of safety and fully realize the potential social and economic good that the arrival of this technology heralds.

Follow Brendan Schulman on Twitter, @dronelaws.

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