By: Ramesh Vaidyanathan and Arvind Ravindranath
Drones are small remote controlled aircrafts that have multiple uses. They are also termed as ‘Unmanned Aerial Vehicles’ (“UAV”) or addressed by the broader term ‘Unmanned Aviation Systems’ (“UAS”). UAS is a package that consists of the UAV, a ‘Remote Pilot Station’, a Command and Control Link, maintenance system and operating personnel. While military use drones have been flying for decades, the technology to fly advanced, portable, civilian use drones did not really exist until recently. Companies such as DJI Phantom Technology Co. and Parrot have made unmanned aviation more accessible to the public through their innovative consumer products. Initially, civilian use unmanned aviation was considered to be merely a hobby or a pastime. The aircrafts were often flimsy, had the most basic features and did not even have significant flight time. However, with the rapid growth of technology, the scale of the features that can be packed into a tiny device has grown by leaps and bounds.
Depending on the model and make, civilian drones are typically battery operated, weigh a few kilos and fly at a height that is visible to the naked eye from the ground. They can also contain high tech features such as GPS Tracking and high resolution cameras that can photograph the ground below.
The broad scope of employing such UAVs and their potential use in the civil and commercial space can afford significant benefits to businesses and governments across the world. In India, UAVs are currently used by the National Highways Authority of India for collecting data in terms of number of trees, hand pumps, buildings, electricity wires and poles, telephone lines and the like for 3D digital mapping and for checking the progress on various highway projects. Drones have also been used in India for photography during weddings.
The Indian Railways has also employed UAVs for 3D video-mapping of a number of railway stretches including 96 kms of 3,360 km in the Dedicated Freight Corridor project. The Chairman of the Railway Board AK Mittal has claimed that drones could help the railways monitor every inch of rail land.
The growth of this nascent technology has brought with it several legal issues that were never needed to be considered before. Imagine if every person has a hovering camera within a kilometer radius. Wouldn’t that raise issues of privacy? (Remember Drones v. Idiots from Modern Family?) What if there is a drone flying near an airport that flies dangerously close to an aircraft about to take off or land? What of remote controlled drone bombs? In light of the potential risks that may arise, the Director General of Foreign Trade restricted the import of UAS to only those entities licensed to do so by the DGCA. Additionally, the DGCA has banned the operation of drones by all private parties till it comes out with detailed regulations governing the operation of UAS.
There is an urgent need for regulation of such activity for domestic manufacturers and the hundreds of imported ones available in the market. The proliferation of UAVs raises a number of regulatory issues including safety (both in the air and on the ground), privacy and security.
PROPOSED REGULATION OF UAVs by DGCA
The extensive applications of UAVs necessitate the creation of policy to monitor their use. Several governments across the world continue to grapple with the idea of regulating such activity. The International Civil Aviation Organization (“ICAO”) is to publish Standards and Recommended Practices relating to certification and operation of civil use of UAS in the year 2018.
In October 2014, the Director General of Civil Aviation (“DGCA”) released a public notice banning the operation of UAVs in Indian Civil Airspace by any person, corporate or organization other than those related to the Government of India. The use of UAS remains essentially banned without permission from a raft of Government Authorities. The Customs Department has also included it in the list of ‘Dutiable Items’, which need to be compulsorily declared upon arrival. Even then, civilian drones continue to be used in India and they are freely available online.
In April, 2016, the DGCA finally circulated its Draft Guidelines for the operation and licensing of Civilian UAS (“Guidelines”). The Guidelines encompass various rules ranging from registration of a UAS to requirements to operate the same. In particular, it mandates that all UAS operators must adhere to the Guidelines, in the interest of flight safety and also provides that the DGCA will mandatorily register all civilian use UAS and issue Unique Identification Numbers (“UINs”) to each one of them.
The Guidelines classify the UAS into four categories based on their weight as Micro, Mini, Small & Large. Also, all civil UAS operations at or above 200 feet above ground level in uncontrolled airspace for any purpose will require a UA Operator Permit (“UAOP”) from the DGCA. Entities that operate below that level in uncontrolled airspace and clear of notified prohibited, restricted and danger areas as well as Temporary Segregated Areas and Temporary Reserved Areas do not require UAOP. Instead, the operator is required to obtain clearances from the local administration.
Model aircraft (defined in the Guidelines as “Unmanned Aircraft (UA) without payload, used for recreational purposes only”) operating below 200 feet above ground level in uncontrolled airspace & indoor UA will also not require UAOP.
Additionally, the Guidelines state that only Indian citizens or a company with its principal place of business in India with substantial ownership of Indian nationals and with its Chairman and two-thirds of its directors as Indian citizens can obtain UAOP. UAOP is under the direct control of DGCA and subject to cancellation and suspension. Moreover, it will be valid only for two years and is non-transferrable.
For security reasons, UAS cannot to be flown over the entire air space over the territory of Delhi (30km radius from Rashtrapati Bhavan) and areas falling within 50 kms from the international borders. The Guidelines also restrict the use of UAS’ over other sensitive locations such as nuclear stations, military facilities and strategic locations. While the DGCA’s recent efforts to initiate a public consultation on these aspects are a welcome step, the Draft Guidelines, if implemented in its current form, will stifle innovation, raise operational risks, and create substantial uncertainty for organisations, individuals and enforcement agencies alike.
DEVELOPMENTS IN THE UK
The UK has made successful strides in exploring the use of UAS’ in the commercial sector. The Civil Aviation Authority (CAA) of UK has allowed commercial operators like Amazon to obtain permissions to operate drones on a trial basis for the following three categories:
- beyond line of sight operations in rural and suburban areas,
- testing sensor performance to make sure the drones can identify and avoid obstacles,
- flights where one person operates multiple highly-automated drones.
The CAA’s website indicates a clear policy framework under which drone operators can apply for permissions depending on whether they want to fly for recreational or commercial use.
A clear framework can be seen in the website whereby the CAA issues permissions either for ad-hoc flights or for a ‘term’. All flights that are conducted under the permission have to comply with the ‘Air Navigation Order’
DGCA REGULATIONS- CUMBERSOME AND INEFFICIENT
As multiple arrests have shown, the DGCA’s ban on the operation of drones isn’t really well known to the public and only results in harassment of bonafide users of UAS. The DGCA’s knee-jerk reaction to the proliferation of drones has only helped limit the potential benefits of this technology to the public at large in India. Instead of being a facilitator, the DGCA has taken the heavy handed approach of imposing a blanket ban on the operations of UAS.
Below are some observations on the Guidelines:
- Over-regulation: The draft Guidelines seem to over-regulate. For instance, under Regulation 10.1, all UAS operators irrespective of the weight category are subject to the same compliances including the obligation to intimate the local administration before and after every flight. This homogenous treatment is incongruous with internationally-accepted practices. The assumption across the world is that smaller drones pose less severe operational risks and warrant lighter (if any) regulation. The circular, however, assumes that smaller drones pose the same security risks as larger drones, an assumption belied by common sense.
- Weight v. Height: Most UAS regulations around the world currently use weight (of the drone) as the primary basis for regulation as there is a clear nexus between the weight of the UAS and potential risk in the air and on the ground. The DGCA attempts to use altitude of the UAV as the primary criterion. While weight is constant, altitude of the UAV is a constantly changing variable, which the DGCA has no ability to monitor in flight. By ignoring the weight of the UAV, the DGCA equates the smallest of recreational UAV with much larger devices potentially weighing hundreds of kilos and with much graver safety implications.
- Drafting Flaws: The Guidelines also suffer from a number of drafting flaws. For instance, the application for a UAS operator’s permit requires applicants to specify UA landing or take-off areas as well as obtain permission from all property owners whose land the UA may fly over. At the same time, the Guidelines provide that each permit would be valid for a period of two years. This is exceedingly onerous as the location of UA operations is likely to vary over a two-year period. The Guidelines also fail to elaborate on issues of privacy and enforcement. Apart from a cursory statement that “privacy and protection of personnel/property/data shall be given due importance”, no further guidance is provided. Even-though the Guidelines propose suspension and revocation of operators’ permits as an enforcement measure, it is silent on penalties for operators failing to obtain a license in the first place and for those violating the privacy of others.
- An Overload of Red-Tape: Lastly, the DGCA seems to have grossly miscalculated the administrative overhead that would be required to implement the present framework. Every aspect of UAV use from registration to loss to accidents and application for permits require DGCA clearance while even the most mundane UAV operations require clearances from a minimum of three other government entities. In the absence of a single-window clearance system with time-bound processing, the proposed framework will bring the fledgling industry to a standstill. Before you know it, people may import grey-market smuggled drones than comply with the DGCA’s onerous requirements.
- Practical difficulties: The application for license is to be filed 90 days in advance, which is impractical. Furthermore, there is no provision for any knowledge test with regard to flying an unmanned aircraft. For instance, in USA under Part 107 of the FAA rule book for small UAS, to become a certified drone pilot an initial aeronautical test at any FAA approved knowledge testing center is required to be cleared. It may take 6-8 weeks to obtain a permanent license but a temporary license can be issued in 10 business days. A standard basic pilot test would help in reducing the danger involved in flying an unmanned aircraft regardless of its size.
- A detailed definition as to what constitutes “controlled and uncontrolled airspaces” should be provided in order to make these regulations less ambiguous and more understandable to users. Small model aircrafts for hobby purposes are often toys for children available easily in the market. Imposing such harsh conditions of registration for these toys is impractical. A proper distinction should be made out between small model aircrafts for recreation and other UAVs.
- Amazon has recently delivered successfully a consignment through drones to a customer in the UK. A few other e-commerce giants have already tied up with governments of the US, UK and Canada to test targeted delivery of products using drones as a viable option. These experiments have reached advanced stages in these countries. DGCA needs to ensure that the final Guidelines are more enabling than prohibitive so as to not stifle innovation and efficiency.
In conclusion, the Guidelines are a necessary first step as civil use will be beneficial in a variety of ways. Drones have varied commercial uses from videography to tourism to disaster management and even package delivery (as has been proven by e-commerce behemoth Amazon in the UK). The proposed Guidelines also need to take into account the issues of privacy of individuals and the safety of payload/cargo. At the same time, the proposed Guidelines need to be comprehensive to have a positive impact on the industry. DGCA must also identify specific offenses within the licensing framework for UAVs and specify punishments for the same. While regulations are necessary to monitor the UAS to ensure security and safety, DGCA should not intervene to such an extent that it becomes virtually impossible to commercially use the device.
 Regulation 10 of Draft Guidelines for obtaining Unique Identification Number (UIN) & Operation of Civil Unmanned Aircraft System (UAS), 2016.
 “a defined volume of airspace normally under the jurisdiction of one aviation authority and temporarily segregated, by common agreement, for the exclusive use by another aviation authority and through which other traffic will not be allowed to transit- Source: https://ext.eurocontrol.int/lexicon/index.php/Temporary_Segregated_Area
 a defined volume of airspace normally under the jurisdiction of one aviation authority and temporarily reserved, by common agreement, for the specific use by another aviation authority and through which other traffic may be allowed to transit, under ATC clearance.- Source: https://ext.eurocontrol.int/lexicon/index.php/Temporary_Reserved_Area
 Regulation 6.2 of Draft Guidelines for obtaining Unique Identification Number (UIN) & Operation of Civil Unmanned Aircraft System (UAS).