Disciplined in Sophisticated Defense and Insurance Litigation

January 15, 2019 | Blog Post| The Federal Aviation Authority Reauthorization Act of 2018 and Its Effect on Drones

The Federal Aviation Authority (“FAA”) Reauthorization Act of 2018 (the “Act”) was signed into law on October 5, 2018, by President Donald Trump.[1]  The Act was the first five-year FAA reauthorization since 1982.  Such reauthorizations provide the FAA with guaranteed funding for the next five years. The Act contains a plethora of supplementary provisions in addition to the provisions regarding the authorized funding of the FAA.  The Act can be broken down into five areas: (1) funding authorizations; (2) airline customer service; (3) aviation safety; (4) airports; and (5) unmanned aviation systems (“UAS”), also known as drones. 

The Act contains a number of important provisions for commercial and recreational drones.  A large part of the Act concerns drones, setting up the future of the FAA as it attempts to fully integrate the airspace with the growing number of drones.  Much of the provisions in the Act add to the groundwork laid in 2012, but there are some notable additions and clarifications.

As far as the recreational use of drones, the Act repealed the Special Rule for Model Aircraft, also known as Section 336.  Hobbyist drone pilots are now subject to FAA regulations similar to the regulations commercial drone pilots are required to operate under.  Prior to the Act, hobbyists were treated as an entirely separate group of drone pilots from those flying commercially.  That is no longer the case: all drones will now be viewed similarly by the FAA, at least from a regulatory perspective.

In addition to now being subject to regulations prohibiting flight operations near airports at or above 400 feet—restrictions commercial pilots have had to comply with under the FAA’s Part 107 rules—the Act allows the FAA to require hobbyist drone pilots to pass an aeronautical knowledge and safety test before flying.  (Commercial pilots must already pass the Part 107 test and receive a Part 107 certificate to fly.)  However, the FAA is not currently requiring hobbyist drone pilots to take and pass an aeronautical knowledge and safety test.  It is unclear if and when the FAA will do so.   

According to the FAA’s website, the Act imposes the following requirements upon hobbyist drone operators (with no mention of taking and passing a test, at least not yet):

  • Fly for hobby or recreation only;
  • Register your drone;
  • Fly within visual line-of-sight;
  • Follow community-based safety guidelines and fly within the programming of a nationwide community-based organization;
  • Fly a drone under 55 pounds unless certified by a community-based organization;
  • Never fly near other aircraft; and
  • Never fly near emergency response efforts.[2]

On its website, the FAA also stated: “Updated direction and guidance will be provided as the FAA implements this new legislation.”

One of the most controversial aspects of the Act is that it gives the government, in particular the Department of Homeland Security, the ability to “track,” “disrupt,” “control” and “seize or otherwise confiscate” any drone that is deemed a “credible threat.”  The Act does not define “credible threat,” but a notation says that it will later be defined in agreement by both the Secretary of Transportation and the Attorney General.  The threat must be to a “covered facility or asset,” not just general airspace.  This authority allows the government to act without restricting its decision with regard to any warrant requirement.  Lawmakers argued that they needed this new authority to better protect large events and special facilities from drone attacks and to give the government the breathing space it needs to test potential anti-drone technologies.  Critics warn that this authority extended to the government in taking down and seizing recreational and commercial drones is too broad, giving unfettered power to the government.  Others argue that it has always been implied that the government already had this authority anyway. 

Other changes in the Act that affect drones include:

Drone Deliveries

In Section 348 of the Act, the FAA is given one year to update existing regulations to authorize the carriage of property by operators of small UAS for compensation or hire.  It is expected that the FAA will create a certification process for UAS operators who want to carry/deliver property for compensation or hire within the United States.

Counter-UAS Systems

In Section 364 of the Act, the FAA is tasked to review agencies currently authorized to operate Counter-Unmanned Aircraft Systems (“C-UAS”).  The review should include the process of interagency coordination of C-UAS activity and standards for operation of C-UAS.  Congress has asked to examine progress on this review within four months of the passage of the Ac, which would be no later than early February, 2019. 

Unmanned Traffic Management and Remote ID

In Section 376 of the Act, the FAA is requested to compose a plan for full operational capability of UAS traffic management (“UTM”) with NASA and UAS industry stakeholders.  They shall develop a plan to allow the implementation of UTM services that expand operations beyond visual line of sight while maintaining the FAA Extension, Safety, and Security Act of 2016.  This section also outlines requirements for the completion of the UTM System Pilot Program.

Many in support of the Act believe that it will effectively do the following things:

  • Expedite the development and implementation of a UTM system.
  • Give the FAA the flexibility needed to appropriately regulate all UAS, including the authority to impose remote identification and tracking requirements.
  • Enable federal law enforcement to conduct tailored countermeasures operations with due consideration to the ongoing safety of the national airspace and privacy and civil liberties.
  • Establish a process to develop consensus industry standards in lieu of protracted type and airworthiness certification.
  • Improve the pathway to safely enable ubiquitous UAS delivery operations through a rigorous, risk-based certification process.
  • Increase transparency in the Part 107 waiver approval process.

Follow Butler On Drones for the most up-to-date drone news!


A profile photo of Ryan K. HiltonRyan K. Hilton | PARTNER

Aviation, Casualty Defense Litigation, Construction, Extra-Contractual, Third-Party Coverage and Trucking

(813) 281-1900 | TAMPA 


A profile photo of James Michael Shaw, Jr.James Michael Shaw, Jr. | PARTNER

Aviation, Casualty Defense Litigation and Extra-Contractual

(813) 281-1900 | TAMPA

December 14, 2018 Blog PostDrone Accident Excluded Under CGL Policy's Aircraft Exclusion

In the most recent edition of our book, Butler on Drones, we reported that ISO has issued specific exclusions for unmanned aircraft for inclusion into CGL policies, but it was an open question whether a CGL policy’s standard aircraft exclusion already excluded coverage for liability arising from the use of a drone. A California federal district court has now weighed in on the question – the first to do so, as far as we are aware. And we like the answer.

Read More »
January 18, 2018 Blog PostEighty Years After Earhart: Congress Moves to Motivate and Facilitate Women In Aviation

The aviation industry is in dire need of a future workforce. This industry is already suffering from a shortage of qualified individuals to work in all sectors of aviation. For instance, the Forbes article here states that the gap between supply and demand for aviation mechanics is projected to be at 9 percent by 2027.   

Read More »
January 05, 2018 Blog PostRecreational Drone Registration Requirement Has Returned

Back on December 21, 2015, the Federal Aviation Administration (FAA) required drone owners to register their drones if their drones weighed more than 0.55 pounds and less than 55 pounds (small drones). The registration was valid for three years.  Basically, anyone who possessed a drone for recreational use had to pay $5.00 to register their drone online with the FAA.  Following that requirement, over 820,000 drone owners had registered their drones. However, in May 2017, the D.C. Circuit Court of Appeals struck down that requirement, finding that the FAA violated its own rule found in the 2012 FAA Modernization and Reform Act that prohibits the FAA from promulgating any rules or regulations regarding model aircraft in Taylor v. Huerta, 856 F.2d 1089, 1090 (D.C. Cir. 2017). After the Taylor decision, the FAA created a form through which registrants could remove themselves from the registry list and request a refund of their $5.00 registration fee they had paid.

Read More »
January 05, 2018 Blog PostFAA Releases Drone Identification and Tracking Report that the FAA Will Consider in Drafting its Final Rule on In-Flight Drone Accountability

Law enforcement agencies want accountability when it comes to drone flights, especially when those flights are over people. Enabling a drone and its owner/operator to be quickly identified by law enforcement is necessary toward the expansion of the authorized use of drones to include flights over people and beyond the line of sight as well as the safe integration of drones in the national Airspace System. The Unmanned Aircraft Systems (UAS) Identification and Tracking Aviation Rulemaking Committee (ARC) chartered by the Federal Aviation Administration (FAA) submitted its report and recommendations to the FAA on technologies available to identify and track drones in flight and other associated issues.

Read More »

The Federal Aviation Administration’s (“FAA’s”) authority to institute airspace restrictions derives from 14 CFR § 99.7, “Special Security Instructions,” which is intended to address national security concerns from the Department of Defense and U.S. Federal security and intelligence agencies. 

Read More »
August 23, 2017 Blog Post"It's Not Old, It's A Classic!": Risk in Aging Aircraft with GARA Protecting Manufacturers

The General Aviation Revitalization Act of 1994 (“GARA”) was a byproduct of aging aircraft, rising costs, and tort liability in the United States.  Congress was concerned that aircraft manufacturers were being devastated by liability costs for accidents occurring long after the planes left the manufacturer.  These liability costs drove up the price for aircraft beyond what the market would bear, and general aviation experienced a sharp decline.  The General Aviation Manufacturers Association reports the total U.S.-manufactured general aviation airplane shipments went from a high of 17,811 in 1978 to a low of 929 in 1994.  As a result many manufacturers stopped making certain model aircraft, including Cessna which ceased production of all piston aircraft in 1986. 

Read More »
July 14, 2017 Blog PostNew Laws passed in Florida and Oregon add to Varying State Drone Regulations

More and more states are adopting individual rules for UAS operations within their borders. These rules vary from state to state.  Congress wanted to take up the issue and regulate UAS federally, but stakeholders including the Aircraft Owners and Pilots Association, Drone Manufacturers Alliance, the National Business Aviation Association, and the Commercial Drone Alliance, among others, are encouraging Congress to defer regulation of UAS pending the report and recommendations of the Drone Advisory Committee, the “DAC”.

Read More »
May 24, 2017 Blog PostThe D.C. Court of Appeals Just Scrapped the Drone Registry and May Have Also Turned Homeowners Insurers into Aviation Insurers

Model-aircraft hobbyist John Taylor didn’t want to register his model aircraft with the FAA pursuant to the newly created drone registry. So he took on the FAA, challenging new regulations aimed at unmanned aircraft registration and flight restrictions.

Read More »
April 13, 2017 Blog PostThe Answers to Some of Your Questions About What Airlines Can Do When a Flight is Overbooked and Someone Is Going to Have to Get Off of the Plane

Suddenly, the entire world is interested in learning about the laws governing airlines’ actions when a flight is overbooked. It isn’t every day that the entire world suddenly wants to learn all about something that you’ve spent years studying, so this post is for our clients who insure aviation risks, our clients who are frequent air travelers, and perhaps a few curious strangers who have no business with our law firm but have nonetheless been led here by their quest for answers. 

Read More »
April 05, 2017 Blog PostA Federal Court in Kentucky Shoots Down Drone Airspace Case

The Western District of Kentucky recently granted a motion to dismiss for lack of subject matter jurisdiction, determining that there is no federal question jurisdiction when a claim is brought for trespass to chattels and declaratory judgment where a drone is flown above an individual’s property. 

Read More »

Key Points