an Update on Regulatory Framework for Drone Policy Discussions

1 MEMORANDUM TO: Craig Kelley, Cambridge City Councillor FROM: Wilford Durbin, Council Aide DATE: March 23, 2017 SUBJECT: Update on Regulatory Framework for Drone Policy Discussions On October 27, 2014, the Council passed a policy order requesting the City Manager to “confer with relevant City staff to review drone use in Cambridge for use in developing a City regulation or ordinance on such use.” The Council observed that drones were “becoming cheaper to acquire, more powerful in their capabilities and increasingly popular with hobbyists, businesses, and governments for both amusement and observation purposes.” The popularity of drones has not diminished since then, and as millions of Americans witnessed during the Super Bowl LI halftime show, the ever expanding list of uses now includes aerial art displays on a massive scale. When the City Solicitor responded to that policy order in a memorandum dated February 24, 2016, many of the answers that the Council sought had yet to be defined by either the Federal Aviation Authority (FAA) or Massachusetts state government. Pointing to those gaps—including the lack of even a federally recognized definition for “drone”—City Solicitor Nancy Glowa declared in her conclusion that the “current regulatory framework that governs…drones, is murky.” Since then, several policy developments, including new guidelines from the FAA, have provided some clarity on that previously opaque regulatory framework. This memorandum will provide the public with an overview of the existing framework so that they might better participate in the Council’s discussion on a drone ordinance. 1. Definition of Drone. An Advisory Circular from the Department of Transportation (DOT) and FAA, “Small Unmanned Aircraft Systems (sUAS)” (August 21, 2016), creates two definitions for the type of aircraft we broadly describe as “drones.” All drones, regardless of size, can be said to fall under the term “Unmanned Aircraft (UA),” which is defined as “An aircraft operated without the possibility of direct human intervention from within or on the aircraft.” “Small Unmanned Aircraft” (SUA) is defined as “A UA weighing less than 55 pounds, including everything that is onboard or otherwise attached to the aircraft, and can be flown without the possibility of direct human intervention from within or on the aircraft.” Collectively with all its user operated parts, “Small Unmanned Aircraft System” is defined as “A small UA and its associated elements (including communication links and the components that control the small UA) that are required for the safe and efficient operation of the small UA in the [National Airspace System].” Noting that the definition of “unmanned aircraft” could be interpreted broadly to include even “paper airplanes…and toys,” the FAA ruled that regulations would not apply to “Model aircraft,” “Amateur rockets,” “Moored balloons,” “Unmanned free balloons,” and “Kites.”

2 2. Existing Regulations and Prohibitions on the Use of Small Unmanned Aircraft System (sUAS) a. Federal Regulations Prior to the issuance of SUA rules, the best guiding directives on drones relied on FAA regulations that set “minimum altitudes of flight” for all aircraft, and model aircraft operating standards addressed in the 2012 FAA Reform Act. The former system set a minimum flight altitude of 1,000 ft. above “congested areas” and 500 ft. above “other than congested areas.” The latter pertained strictly to aircraft used for “hobby or recreational use.” The recently released FAA rules establish a new standard for SUA with a “Maximum altitude of 400 feet above ground level (AGL),” but this remains part of the National Airspace System (NAS) subject to federal oversight. FAA does allow SUA to fly higher than 400 ft. if they “remain within 400 feet of a structure.” Conceivably, one could operate a SUA as much as 700 ft. above ground level near MIT’s Green Building (the tallest structure in Cambridge at 295 ft.), so long the device remains within 400 ft. of the structure. Additionally, SUA may not operate at groundspeeds in excess of 100 mph. All SUA between .55 lbs. and 55 lbs. must be registered with the FAA prior to flight. Those pilots who fail to register qualifying aircraft “will be subject to civil and criminal penalties.” Anything that has a mass gross takeoff weight of less than .55 lbs. does not require registration. A provision that may have the greatest impact on SUA operation in Cambridge is an FAA requirement that operators flying a SUA “within 5 miles of an airport” provide “the airport operator and the airport air traffic control (ATC) tower…with prior notice of the operation.” For Cambridge, that includes most of the City east of Harvard Square. Significant portions of Somerville and Boston are also included within the radius requiring “prior notice.” That 5 mile radius applies to all airports, but the FAA has even further setbacks of 8 miles for specially designated airports. Boston Logan International Airport A screen shot from an Massport informational flier notifying residents within 5 miles of Boston Logan International Airport of their “special responsibilities as th eowner of a drone.” Operators are first required to notifiy the “airport traffic control (ATC) tower” before flying a SUA within the highlighted region.

3 has such an extended radius of 8 miles, requiring all aeronautical devices operating from the surface to 7,000 ft. to notify the airport air traffic control tower. This further 8 mile radius encompasses all of Cambridge, well past Fresh Pond that defines part of the City’s western border. (The entirety of Somerville also falls within this 8- mile radius.) Any SUA device operating within the City and weighing more than .55 lbs must notify Boston Logan International Airport prior to flight. To help amateur SUA operators be aware of their requirements, the FAA developed B4UFLY, a smartphone app that displays the 5 mile radius around local airports. Still, pilots have reported sightings of drones in the restricted airspace around Logan Airport, and investigations have been opened by local police. Additional operational limitations may be easily viewed in a “Summary of Small Unmanned Aircraft Rule (Part 107)” released by the FAA. This document states that SUA:  must weigh less than 55lbs  must remain within visual line-of-sight (VLOS) of the remote pilot in command and the person manipulating the flight controls of the sUAS  may not operate over any persons not directly participating in the operation, under a covered structure, or inside a covered stationary vehicle  may operate only during daylight or civil twilight (30 minutes before official sunrise to 30 minutes after official sunset), and must have anti-collision lighting visible to other operators  must yield to other aircraft  may not be operated from a moving aircraft nor vehicle (unless over a sparsely populated area)  may not be operated in a reckless manner  may not carry hazardous materials The FAA also established several requirements for the SUA operators, who must “either hold a remote pilot airman certificate with a small UAS rating or be under the direct supervision of a person who does hold a remote pilot certificate.” To qualify for a remote pilot certificate, a person must: (1) “demonstrate aeronautical knowledge,” typically through a test; (2) “[b]e vetted by the Transportation Security Administration;” and (3) “[b]e at least 16 years old.” The FAA also prohibits SUA use if the remote pilot has reason to know of any physical or mental condition that would interfere with the safe operation. Transportation of property, whether for compensation or hire, is permitted under the FAA’s regulation “provided the operator complies with all the provisions of the rule.” These include operating the UAS within “visual line-of-sight,” preventing regional package delivery currently being tested by Amazon in the UK. According to the FAA’s website, “external loads must be securely attached and The shaded blue circle shows the 8-mile radius surrounding Boston Logan International Airport. SUA operators within this circle must notify the Boston air traffic control prior to flight. This larger 8-mile radius encompasses all of Cambridge.

4 cannot adversely affect the flight characteristics” of the UAS, and the “aircraft with payload must weigh less than 55 lbs. at takeoff.” Transportation of goods across state lines is prohibited. Those seeking to operate a UAS for recreation or hobby purposes may do so either in accordance with the FAA’s Small UAS Rule (Part 107), or the Special Rule for Model Aircraft (Public Law 112-95 § 336). Operators who may wish to operate a UAS for business or work purposes must comply with Part 107. Requirements under the Special Rule for Model Aircraft differ slightly than those in Part 107—you are not required to secure a Remote Pilot Certification, and must be 13 years or older—but you must still register and comply with all safety guidelines. (A sample of recreational UAS devices and whether they are required to be registered is available by following the link.) To prevent drones from flying into federal no-fly zones—especially around Washington, D.C., which has one of the most restrictive airspaces in the nation—at least one company has installed software that stops the motors around banned areas. After one of their drones crashed onto the White House lawn in January 2015, the popular Phantom company said it would erect so called “geo-fences” around the D.C. airspace, as well as “a larger database of over 10,000 airports around the world, along with some sensitive sites around the world that needed coverage." b. Massachusetts Regulations On July 1, 2016, the Massachusetts Aeronautics Division issued significant revisions to its regulations on UAS devices, previously defined in 702 CMR. Noting that many of the rules and definitions contained in 702 CMR 4.00 and 2.00 were “largely preempted by federal aviation law,” the Division proposed a “to reduce substantially” the size of regulations and remove definitions “no longer necessary.” Changes to 702 CMR 4.00 Flight Rules “Eliminates detailed and overlapping flight regulations and replaces them with a simpler and clearer regulation that requires persons operating aircraft in the Commonwealth to comply with all federal laws, regulations, orders and directives preventing conflicts between Federal and State aviation law.” UAS devices would fall within the State’s definition of Unmanned Aerial Vehicle (UAV). 702 CMR §2.01. UAS devices required to be registered with the FAA are also required to register their aircraft with the Aeronautics Division. 702 CMR §3.02 (1). The Massachusetts Joint Committee on Public Safety and Homeland Security is currently reviewing a bill on UAVs filed on January 17, 2017. Aside from a provision stating UAVs “may not be equipped with weapons,” the bulk of the bill appears to restrict government, rather than private, use of drones. Under the S.1349, acquisitions of UAVs must be approved by the city council in the case of municipalities, and may only be operated “in order to execute a warrant,” or “in case of emergency.” To address broad privacy concerns, S.1349 outlines that “Under no circumstances” shall UAVs be used to “track, collect or maintain information about political, religious or social views, associations or activities of and individual, group, association, organization, corporation, business or partnership or other entity” unless it pertains to a criminal investigation. c. Municipal Regulations No regulations have yet been introduced in the City of Cambridge, however, several municipalities across the country—and even here in Massachusetts—have attempted to regulate UAS.

5 Additionally, the FAA has granted exemptions to its regulations for organizations throughout the state, including here in Cambridge, which may affect the City’s ability to regulate UAS. i. Cambridge On February 18, 2016, the FAA granted a request by the Massachusetts Institute of Technology (MIT) for an exemption allowing the institution to “operate a UAS to perform aerial data collection.” The FAA’s definition of “aerial data collection” includes “any remote sensing and measuring by an instrument(s) aboard the UA. Examples include imagery (photography, video, infrared, etc.), electronic measurement (precision surveying, RF analysis, etc.), chemical measurement (particulate measurement, etc.), or any other gathering of data by instruments aboard the UA.” According to records made public by the FAA, there are currently 278 recreational drones registered in Cambridge, and 29 non-recreational registrations (information through February 14, 2017). Some 13,888 recreational, and 790 non-recreational drones have been registered with the FAA across Massachusetts. Due to the complex set of requirements for operating a drone non-recreationally, including notifying air traffic controllers at Logan International Airport prior to flight, Harvard University “highly” recommends to its departments chairs that they “first determine the feasibility of hiring an external vendor or independent contractor, possessing FAA authorization” before initiating any UAS activities “in- house.” ii. Newton The City of Newton enacted an ordinance on “Pilotless Aircraft Operation” on December 20, 2016, aimed at “protecting the privacy of residents throughout the City,” preventing “nuisances and other disturbances of the enjoyment of both public and private space,” and promoting “the public safety and welfare of the City and its residents.” Crafted to be interpreted “in harmony” with FAA circulated regulations, the Newton ordinance places several new restrictions on operators and UAS use. Operators in Newton are required to register with the City Clerk and pay a $10.00 registration fee. UAS may not fly over “private property” without the “expression permission of the owner.” Operating over schools, school grounds, sporting events, or “other City property” is prohibited without the City’s permission. In an effort to protect the privacy of residents, UAS may not be used for the purpose of “surveillance” or “capturing a person’s visual image, audio recording or other physical impression” unless permitted by law or a court order. Flying over “emergency response efforts” is also prohibited, as is operating a UAS with the intent to “harass, annoy, or assault a person.” The ordinance also grants the Chief of Police the ability to prohibit UAS where they would otherwise be allowed during emergencies or when “use or operation would pose a threat to public safety.” Violators of the Newton law will be issued a “warning” for the first offense, and a fine of $50.00 for each subsequent violation. The newly ordained ordinance is already facing a legal challenge in the United States District Court from a Newton resident claiming the law violates his “statutory rights of navigation, and violates Plaintiff’s rights under the First, Fifth, and Fourteenth Amendments and the Massachusetts Privacy Act, M.G.L. C. 214 §1B.” The complaint alleges that the Newton Ordinance “takes off from a reasonable premise—protection people on the ground—but climbs to unconstitutional heights.” Discovery in the case was set for July 10, 2017. iii. Boston

6 The City of Boston does not yet appear to have an ordinance regulating UAS devices in the City. However, the Parks and Recreation Department, which can issue rules relative to the use of the public parks and other public places under its control, has established some guidelines. A webpage on Recreational Drone Use under the Parks and Recreation Department invites operators to fly their UAS at “select City parks,” and to make sure devices are labeled with its FAA registration number. The City of Boston’s website (last updated on July 18, 2016) advises against flying: 1) over people or moving vehicles; 2) over stadiums of sports events; 3) in adverse weather conditions; 4) under the influence of alcohol or drugs; 5) over power stations, water treatment facilities, correctional facilities, heavily traveled roadways, government facilities, police and fire states, hospitals, etc.; 6) near emergency response efforts such as fires; 7) over private property; and lastly 8) for the purpose of taking pictures of people without permission. iv. Chicago The City of Chicago has had an ordinance regulating UAS devices—a first among major US cities and hailed as “sensible and intelligent”—since November 2015. Many of the provisions of Chicago’s ordinance on “Small unmanned aircraft” (Municipal Code Title 10, Chapter 36 §400) anticipated the FAA’s own regulations, such as a 5 mile no-fly zone around airports, an operational limit of 400 feet above ground level, and a restriction of operating during daylight hours. Chicago’s ordinance goes further in curtailing surveillance, protecting public safety of large assemblies of people, and guarding public utilities, areas where the FAA’s regulations had remained silent. Drones may not be equipped with weapons nor used with an “intent…to cause harm to persons or property.” Operators are prohibited from flying over any open air assembly unit (defined as “any structure, enclosed area or other demarcated space used for the assembly of persons in the open air, including, but not limited to, amusement parks, stadiums, athletic fields, automotive speedways, aviation fields, bandstands, beach enclosures, grandstands, observation platforms, outdoor public swimming pools, outdoor theaters, race tracks, reviewing stands, street festivals or parade routes”), school, school yard, hospital, place of worship, and prison or police station without the property owner’s consent. Operators must also receive permission from the City before flying within 500 feet of “any water intake facility or any electric generating facility,” 100 feet of “any electric transmission facility,” or 25 feet of “any electric distribution facility or of any overhead wire, cable, conveyer or similar equipment.” The ordinance defines unlawful surveillance, not allowed under the law, as follows: "Surveillance" means the gathering, without permission and in a manner that is offensive to a reasonable person, of visual images, physical impressions, sound recordings, data or other information involving the private, personal, business or familial activities of another person, business or entity, or that otherwise intrudes upon the privacy, solitude or seclusion of another person, business or entity, regardless of whether a physical trespass onto real property owned, leased or otherwise lawfully occupied by such other person, business or other entity, or into the airspace above real property owned, leased or otherwise lawfully occupied by such other person, business or other entity, occurs in connection with such surveillance. 3. Policy Considerations

7 In the rapidly changing world at the intersection of privacy, technology, and aviation, Cambridge should consider the following issues when setting policy for drone operations in and over the City. a. Private Property and Interstate Commerce Currently, the ability for regional delivery of goods and property as envisaged by companies such as Amazon is problematic in the United States. The FAA requires all UAS devices to operate within visual line-of-sight (VLOS), and prohibits flying over persons not directly involved in the operation. The FAA was thought to be working on new regulations that would allow for expanded commercial uses for release sometime in 2017, but overtures from the Trump administration have thrown the process into doubt. Specifically, President Trump’s 2:1 ban on new regulations may cause a delay in implementation of new FAA rules. Even still, the day when an autonomous drone could deliver a book just minutes after it was purchased online may not be too far away. FAA regulations are conspicuously silent when it comes to limitations on flying over private property. So, too, are Massachusetts’ updated regulations. Accordingly, closing this gap has become the primary focus of municipal regulations. Chicago, for example, requires operators to first secure the “property owner’s consent,” and also conform to any “restrictions” that the owner may place on flights. This may be desired around the city’s universities. State and federal bodies may retain the right to govern drone-related commerce as they currently do with commerce conducted through public right-of-ways. With the FAA’s recently released Next Generation Air Transportation System and RNAV guidance—which establishes so-called air-highways around the nation’s airports—we may have a template on which future drone-highways may be based. At the risk of being preempted by federal or state law, the Council should not rush to place limitations on operations over private property, and follow the precedent of the FAA and Aeronautics Division in remaining silent on the issue. The ability for drones to penetrate business operations across a widening range of industries promises to have a substantial commercial impact on both service providers and developers. As a national leader in innovation and technology, Cambridge has the potential to pioneer new drone services and uses with its wealth of institutions and resources. Yawning regulations may have a dampening effect on this future innovation. Instead, the Council could focus on creating protections for priority areas such as schools, infrastructure, and places of congregation, as well as expanding prohibitions against unlawful or otherwise problematic surveillance. Cambridge may wish to look to its early adoption of recombinant DNA regulations as an example of anticipating market and technological impacts on the City. A sub-discussion related to interstate commerce is whether Cambridge could require licenses for drones that are owned by people or organizations outside of Cambridge that take off, land or operate in Cambridge. b. Privacy, Inspections, and Surveillance A proposed drone bill currently before the Massachusetts Legislature takes significant steps to protect the privacy and civil rights of residents of the Commonwealth from domestic use. Indeed, the proposal seems to internalize many of the safeguards recommended by the American Civil Liberties Union (ACLU). The Council may wish to adopt similar protections, even if only to duplicate or precede subsequent state legislation. For non-domestic use, the Council may continue to rely on existing laws and

8 legal precedent concern privacy and photography. Further restrictions may fly afoul of the First Amendment rights of residents. The ACLU safeguards for domestic use include:  Usage Limits: A drone should be deployed by law enforcement only with a warrant, in an emergency, or when there are specific and articulable grounds to believe that the drone will collect evidence relating to a specific criminal act.  Data Retention: Images should be retained only when there is reasonable suspicion that they contain evidence of a crime or are relevant to an ongoing investigation or trial.  Policy: Usage policy on drones should be decided by the public’s representatives, not by police departments, and the policies should be clear, written, and open to the public.  Abuse Prevention and Accountability: Use of domestic drones should be subject to open audits and proper oversight to prevent misuse.  Weapons: Domestic drones should not be equipped with lethal or non-lethal weapons. In 2015, the Obama Administration issued an executive memorandum on “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Right, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems.” In its sections on protections against government abuse and overreach, the memorandum outlined several directives that may be informative in a municipal context. The executive memorandum set guidelines for privacy protection, civil rights and civil liberties protections, accountability, transparency, and reporting. c. Protecting Priority Areas Several municipalities across the country have taken the step to protect sensitive areas in the city either for privacy, safety, or security reasons. This appears to be an appropriate use of municipal regulations on drone activities. Chicago’s ordinance, for example, prohibits UAS devices from flying over any “school, school yard, hospital, place of worship, prison or police station” without the property owner’s consent. The ordinance also establishes an “Open air assembly unit” over which drone operators again must secure permission to pass. These units include areas where large numbers of people may gather, including “amusement parks, stadiums, athletic fields, automotive speedways, outdoor public swimming pools, outdoor theaters, race tracks, reviewing stands, street festivals or parade routes.” The Council may want to compile a list of areas that they want to highlight for increased setbacks and protections. In addition to those areas identified by Chicago’s ordinance, a local regulation may protect key infrastructure systems such as power generation facilities, water reservoirs, and MIT’s nuclear reactor. d. Municipal Licensing UAS devices over .55 lbs. are required to be registered with both the FAA and the State of Massachusetts, and thus the Council should consider what public interest would be served in requiring a municipal registration in addition to those already required. All eligible sUAS must properly display their registration number, making identification possible at the municipal level.

9 If the Council were to require registration, it should take care not to include in its scope those UAS devices that fall outside FAA requirements for registration. Devices weighing less than .55 lbs. may still be equipped with a recording device such as a camera, raising privacy concerns, but are not required to be registered with the FAA. Rather than licensing recreational drones, the Council may want to instead focus on commercial uses. Businesses based in Cambridge could be required to show proof of FAA registration when filing for a business license, as well as detailed plans about use. e. Insurance It does not appear that any federal, state, or local government has moved at this time to require UAS operators to purchase insurance prior to flight. Insurers themselves are trying to better understand the growing UAS market, and a few industry-leaders have begun offering recreational and commercial based liability coverage. Still, the market appears to be limited at the moment. Thus, requiring insurance coverage of recreational drone operators in Cambridge is not advised during this time. The Council may, however, want to create a liability requirement for all commercial operations. f. Potential Uses of Drone Technology To better anticipate how regulations may impact the growing drone field, a list of current and proposed non-recreational uses has been provided. Drone may be used to aid in:  Solar panel inspections  Roof inspections  Construction site checks, modeling, and surveying  Removing Ice Dams  Fire and rescue services  Newsgathering—Currently being tested by CNN  Commercial photograph- weddings, public events, sports events  Police Surveillance  Reforestation  Urban Forestry  Reading utility meters  Surveying storm damage  Traffic surveys  Parcel delivery