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The IBA’s response to the situation in Ukraine
Edmundo Olivares Dufoo
Flores, Olivares, Cobián Abogados y Consultores, Mexico City
Osler, Hoskin & Harcourt, Toronto, Ontario
Michael J Lambert
Haynes and Boone, Austin, Texas
The use of unmanned aerial vehicles (UAVs), commonly known as drones, has significantly increased over the past decade. Once exclusively available to the military and wealthy hobbyists, drones are now accessible to a wide array of individuals, businesses and government agencies, a development that is largely due to rapid advancement in the technology, the result of which has decreased prices and increased availability. Today, drones are integral to many economic sectors including shipping and delivery, crop monitoring, real estate surveying, photography and cinematography, amongst others. In response to the rise in drones, most countries, including Mexico, Canada and the United States, have adopted policies to ensure safety in the skies. These policies often dictate who can fly drones as well as when, where, and how they can be flown. Before taking flight, it’s important to comply with each country’s drone regulations.
We first want to set the stage with a general overview of drones – what they are, how they operate, and why they are used – before diving into the specific laws of each country.
Zain: There is no shortage of reasons why drone usage is ‘taking off’. Drones are essentially flying robots that can be remotely controlled or fly autonomously using software-controlled flight plans to perform a variety of different actions and tasks. To fly, drones require a power source such as a battery or fuel, similar to other flying aircraft. They also typically have rotors, propellers and a frame. Depending on the task that the drone is intended to accomplish, it may have other components such as antennas, receivers, sensors, accelerometers and cameras.
With these components, drones enable the collection of real-time visual and sensory information, including from remote and hard-to-access places and typically with minimal cost, time or effort. This can provide game-changing benefits, including enhanced productivity and output (for example, by providing farmers with aerial data about their crops), enhanced safety (for example, by enabling inspections of critical infrastructure and buildings, including in the aftermath of natural disasters), reduced carbon emissions (for example, by driving down the use of helicopters and other traditional aircraft), and reduced time and expenses (for example, by performing deliveries without the use of personal or motor vehicles).
Now that we understand the basics of drones, let’s turn to the law. Michael, how are drones generally regulated in the US?
Michael: In the US, the Federal Aviation Administration (FAA) primarily regulates drone operations, as the federal agency with exclusive control of the nation’s airspace. The FAA divides drone operators into two categories: (1) recreational flyers, who fly for fun, personal enjoyment or educational use; and (2) certified remote pilots, who fly for commercial, government or any non-recreational purpose. Certified remote pilots flying drones under 55 pounds must comply with Part 107 of the Code of Federal Regulations. Recreational flyers must abide by a less rigorous set of guidelines under 49 USC 44809, the ‘Limited Exception for Recreational Flyers’. The first step for both recreational and certified pilots is to learn these rules and pass a test – the Recreational UAS Safety Test for recreational flyers or the Knowledge Test for certified remote pilots – to earn a remote pilot licence. A list of test administrators can be found here. Once a licence is obtained, both recreational and certified remote pilots must register drones that weigh more than 0.55 pounds with the FAA’s Drone Zone. Registration is $5 per drone and valid for three years. Upon receipt of registration, you must mark your drone with its registration number and carry proof of registration during flights.
Along with the FAA’s regulations, many states and localities have enacted laws or ordinances governing drones. Since 2013, at least 44 states have enacted drone laws and three more have adopted resolutions (a list can be found here). State laws may prohibit flights for certain purposes; over particular property, such as state parks, correctional facilities and critical infrastructure facilities; and during certain events, such as fires or other emergencies. Some cities and counties have instituted limited restrictions as well. Before taking flight, it’s prudent to review your state and locality’s rules online to ensure compliance.
Edmundo, how are drones generally regulated in Mexico?
Edmundo: Drone operations in Mexico are regulated by the Agencia Federal de Aviación Civil (Federal Civil Aviation Agency) through the Reglamento de la Ley de Aviación Civil (Regulations of the Law for Civil Aviation (RLAC)), in addition to the Norma Oficial Mexicana NOM-107-SCT3-2019 (‘NOM’), which establishes the requirements to operate a remotely piloted aircraft system (RPAS) within Mexican airspace. The purpose of this regulation is to establish a normative framework that allows RPAS to operate safely and in conjunction with piloted aircrafts.
Under RLAC, non-piloted aircrafts are classified as follows:
On the other hand, NOM classifies RPAS in three categories depending on weight and usage: (1) micro RPAS with a weight of less than two kilograms; (2) small RPAS falling between two and 25 kilograms; and (3) large RPAS exceeding 25 kilograms. RPAS usage is classified as follows: (1) recreational; (2) non-commercial private; and (3) commercial.
Zain, I’d love to hear how drones are regulated in Canada.
Zain: In Canada, drone operations are primarily regulated by Transport Canada Civil Aviation (TCCA), the federal institution responsible for all of Canada’s transportation policies and programmes. The specific regulations that govern drone operations can be found in ‘Part IX – Remotely Piloted Aircraft Systems’ of the Canadian Aviation Regulations (CARs). Comparative to other jurisdictions, the Canadian regulations contain some of the strictest drone laws in the world. Some of the general rules and regulations include:
In addition to the general rules and regulations for flying drones, CARs divide drone operators into two categories: (1) basic operations, where the drone is: (i) flown more than 30 meters horizontally from bystanders, (ii) never flown directly above bystanders, and (iii) only flown in uncontrolled airspace; and (2) advanced operations, where any of the conditions of basic operations are not met. To fly under basic operations, you must have a pilot certificate which is granted after successful completion of the basic operations licencing test. To fly under advanced operations, you must have a pilot certificate which is granted after successful completion of the advanced operations licencing test (which includes an in-person flight review) and you must only fly a drone that meets all regulation-required safety and assurance standards. These standards can be found here.
When flying a drone outside of basic or advanced operations, such as operating a drone that weighs over 25 kilograms, operating at an altitude higher than 400 feet in the air, operating at a special event or operating beyond the visual line-of-sight, an application for a special flight operations certificate (SFOC) must be submitted to the TCCA. Once granted, the operations are limited only to the specific purpose for which it was intended.
It’s interesting to see the differences in how each country governs drones, but I’m curious as to whether specific rules are aligned across countries. For example, as mentioned previously, drones in Canada cannot be flown above 400 feet, near bystanders, sites of emergency operations or special events, or within three nautical miles of airports or one nautical mile of a heliport. How do these restrictions compare to those in the US?
Michael: There is some overlap but also a few differences. Like Canada, the US generally limits flights above 400 feet, near airports and in other restricted air spaces without permission, such as near stadiums, military bases, national landmarks and some ‘critical infrastructure’, such as nuclear power plants. Flights over people, moving vehicles and at night are permitted under certain circumstances. Flights outside the pilot’s visual line of sight or in certain airspaces require an FAA waiver.
Edmundo, what are some of the specific restrictions in Mexico?
Edmundo: Although restrictions and specifications for RPAS operation in Mexico will rely on the specific aforementioned classifications, some general restrictions include:
Only private non-commercial or commercial RPAS can request special authorisation for night-time navigation.
Besides these drone-specific rules, what other laws should drone pilots consider before flying?
Michael: I advise clients to be mindful of trespass, privacy, harassment, reckless endangerment and other generally applicable laws. These laws apply with equal force in the air. Because I often counsel media companies, it’s important to remind them that photos and videos should not be captured of a place where there is a reasonable expectation of privacy, such as inside a home, place of work and other intimate spaces.
Zain and Edmundo, what other laws should drone pilots be aware of in Canada and Mexico?
Zain: Similar to the US, it is especially important that persons flying drones are aware of applicable privacy legislation and how to avoid committing privacy related torts. TCCA has provided some helpful privacy guidelines for drone users that can be found here. It is also important to be aware of other regulatory requirements (such as those that may apply to certain payloads when performing delivery operations) and to be informed on local by-laws (such as those that require permits or other authorisations to fly drones for specific purposes (filming or flying in a national park, for example)).
Edmundo: Particular attention must be placed on the regulation of privacy and protection of personal information. Given that in Mexico this is a new and developing field, it is expected that in the following years more legislation in other areas will be produced with references to the implications for RPAS operations.
All of these rules may seem onerous, but the consequences of violating them are steep. For example, in Mexico, the only sanctions that are determined within the Mexican normative framework regarding RPAS are the revocation of authorisation or pilot licence when the aircraft is operated under the influence of any intoxicating substance or when a felony sanctioned by the Ley Federal de Armas de Fuego y Explosivos (Federal Law on Firearms and Explosives), the Ley General de Salud (General Health Law) or the Código Federal Penal (Federal Criminal Code) is committed.
Zain and Michael, what are the penalties in Canada and the US?
Zain: In Canada, individuals and corporations could face serious penalties, including fines and jail time for operating drones outside the mandated rules and regulations. For example, TCCA may impose a fine of CAD$5,000 for each violation of: (1) flying a drone without a pilot certificate; (2) flying an unregistered or unmarked drone; and (3) flying in controlled or restricted airspace (without an SFOC). Additionally, for flying a drone in a manner that may place other aircrafts or people at risk, TCCA may impose up to a $15,000 fine.
Michael: There are significant criminal and civil penalties for violating FAA regulations or other federal or state laws. For instance, individuals could face up to three years in prison and/or a $250,000 fine for operating a drone without a licence.
 Flying a drone ‘with reckless disregard for the safety of human life’ carries up to 20 years in prison and/or a $250,000 fine. Interfering with wildfire, law enforcement or an emergency response effort can result in a fine up to $20,000.
The FAA aggressively enforces these laws. For instance, the FAA fined a Chicago-based aerial photography company $1.9m in 2015 for engaging in 65 unsafe drone flights without authorisation. Other large civil penalties include a $182,000 fine for taking 26 unauthorised flights in Philadelphia and a $55,000 fine for violating five regulations while capturing images for a friend in Minnesota.
Going forward, are there changes coming to drone laws in your country that readers should know of?
Michael: In the US, drone operators must comply with the FAA’s Remote ID Rules by 16 September 2023. The rules require that most drones be able to share identification and location information to other parties in the same airspace. This summer, the DC Circuit Court of Appeals upheld the Remote ID Rules in the face of a Fourth Amendment challenge.
Zain: In Canada, the TCCA has recognised that as the drone industry and technology continue to develop, so does the demand for more complex flight operations. This is especially true for operations beyond the visual line of sight of the pilot (BVLOS). To promote further innovation in drone operations, the TCCA is seeking to amend the current drone law regulations to permit visual line of sight operations with heavier drones and allow lower-risk BVLOS operations without having to apply for an SFOC. To enable BVLOS operations, it is likely that the TCCA will take a similar approach to the US, by requiring specific remote identification rules and other location information sharing requirements. The details of the TCCA’s proposed regulatory framework for BVLOS flights is set out in more detail in the Notice of Proposed Amendment that the TCCA published in April of 2020.
Edmundo: For the time being, no modifications are expected in the Mexican legal framework; however, the constant technological developments involved in the present matter as well as the operational complexities of RPAS does render this legislation extremely dynamic and subject to future changes, permitting Mexico to emulate and meet current worldwide tendencies.
 See 49 USC 46306(b).
 See 18 USC 32(a)(5).
 See 49 USC 46320(a).
 See Brennan v. Dickson, No 21-1087, 2022 WL 3008030 (DC Circuit 29 July 2022).