Recently, Obras Urbanas (Urban Works) a Spanish publication for Subsurface, Construction, Building, Alternative Energies, and Machinery industries, published their 2nd edition of RPAS Drones, which included the following feature article on Drones: regulation, business development and future.
Our English speaking friends can read the translation below.
Drones: Regulation, Business Development and Future
Arturo Zazo Ferreras. General Director Allterra Iberica, S.L.U. Alejandro Álvarez Serrano. Attorney at Law - Associate at Mas y Calvet Law Firm
I. Drone Regulations
It’s widely known that the Royal Decree 1036/2017, dated December 15, which regulates the civil use of remote control aircraft, refers in its first part, to section 8 of the Convention on International Civil Aviation, (Chicago, 1944), which states that "No aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization. Each contracting State will ensure that the flight of such aircraft without a pilot in regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft."
The last years have seen an exponential growth in the technical and commercial development of remotely piloted aircraft (RPA), which are integrated, together with the rest of the manned airline traffic, in non-segregated aerial spaces and aerodromes. Such growth has been accompanied by a parallel development of regulations in many countries, as is the case of the Kingdom of Spain (for example, Law No. 21/2003, on Aerial Safety; Law No. 18/2014, of 15 October, on the approval or urgent measures for growth, competition and efficiency; or the approval of Regulation 1036/2017, whose regulatory authorization system is established in the Second Final Provision, subsection 2, of the same Law No. 18/2014.)
To a great extent, the main regulatory advances are being seen at this moment in connection with those Unmanned Aerial Vehicles or UAV, which are ultimately Remotely Piloted Aircraft (RPA). Within this category, we will now refer to drones.
The Spanish Agency for Aerial Safety (Agencia Española para la Seguridad Aérea, AESA) differentiates a recreational use (hobby) and a professional use. There are different recommendations for one use or another.
a. Recreational Use
The first recommendation made by AESA is that the drone must of always be in sight during the flight. The recommendation is that it should be flown at a maximum height of 120 meters. At the same time, flying drones in weather conditions which may impair visibility and control (fog, rain, by night or little light) is imprudent. Flying drones is not allowed in those cases. Also, drones must always be flown in adequate places.
Is it necessary to be a pilot to fly a recreational drone? The answer is no, as this is not a requirement of AESA. However, AESA does state that drones must be flown safely and that they may only be operated by minors under the supervision of an adult. It is important to note that the person piloting the drone will be responsible for any damage caused. Therefore, it is advisable to buy third-party liability insurance.
AESA also refers, in another section, to the possibility that the drone might collect images. Images of persons or private spaces may only be disseminated with their authorization. It is necessary to comply with the regulations on data protection, which result from the right to honor and the right to intimacy. We will refer to this aspect below.
Therefore, and as a conclusion, the recommendations may be not to fly: over groups of buildings; over people; by night or with adverse weather conditions, especially if the drone weighs more than 2 kilograms; at a distance of less than 8 kilometers from airports, aerodromes, etc.; in controlled aerial spaces or where there are devices flying at low altitude (areas of paragliding, parachuting, hot-air balloons, ultralight, gliders, etc.); and ultimately, not to endanger or disturb other people (other aircraft, people and property on land.) In the recreation field, violations may be penalized with fines of over €200,000.
b. Professional Use
The requirements or specifications established by AESA become more complex when drones are used for professional purposes. In the first place, an authorization is required; i.e., the person who pilots an RPA must be a pilot. They also must have a current medical certification, must be authorized by AESA and need to have a specific civil liability insurance for aircraft.
The responsibility for the drone lies with the operator, who is also responsible for the operation thereof and must comply with the applicable regulations (and as pointed out before, recreational use requires compliance with the data protection regulations, etcetera.)
At the same time, as pointed out before, the drone pilot must not fly, in flights Beyond Visual Line of Sight (BVLOS), with an RPA over 2 kilograms; over groups of buildings and groups of people; by night; at a distance that is less than that established by the law for areas near airports; aerodromes, etc. Flights which cause danger or disturbance to third parties (other aircraft, people and property on land) are also prohibited, as is the flight in Controlled Aerial Space and Flight Information Zones. Penalties are higher in this case and may amount to €4.5 million, depending on the severity of the violation.
II. Regulations on Data Protection
a. Drones as a Means of Video Surveillance
One of the authorized uses of drones is video surveillance systems.
The legislation on data protection in video surveillance does not differentiate between fixed or mobile cameras. Therefore, all regulations are indistinctly applied to any of the recording media.
However, based on a query posed by the Spanish Agency for Data Protection (Agencia Española de Protección de Datos, AEPD) the AEPD itself has accepted that there is a “limited authorization to capture images on the street provided that compliance with the principles of limitation of purpose and minimization of data established in section 5.1 of RGPD, sections b) and c) respectively (for instance, video surveillance in private locations) is guaranteed, being the latter a purpose for which a drone would also be especially fit.”
Therefore, for a drone to be able to collect images for video surveillance and security in private locations, the provisions contained in the regulations on data protection (RGPD, LOPDGDD, etc.) must be complied with: right to information, treatment recording, application of safety measures according to risk analysis, etc.
It is true that, when flying drones or RPAs, complying with the duty to inform may be more complex. To that end, the Task Force of Section 29 recommends a "multichannel" approach. Besides, it encourages the adoption of other good practices, for instance, "to have drone operators publish in their web pages information on the various operations that they have carried out or plan for the near future; or the possibility of posting ads in newspapers, flyers or posters, or even by door to door delivery."
b. Drones as an Alternative to Video Surveillance
Given that the most frequent use of drones is not video surveillance, but that drones tend to be used for purposes such as taking images at events (weddings, sports events, infrastructure management, supervision of construction works, etc.), we must briefly refer to the regulation of data protection that affects drones.
In all the cases cited, the drone is subject to the essential principles established by RGPD in section 5.1. Therefore, personal information will be:
a) treated in a lawful, loyal and transparent manner ("lawfulness, loyalty and transparency")
b) collected for specific, explicit and legitimate purposes. It will not be subsequently treated in a manner that is not consistent with said purposes, pursuant to section 89, subsection I. Subsequent treatment of personal information for statistical purposes, for scientific and historical investigation or to be archived for the public interest will not be deemed contrary to the initial purposes ("limitation of purpose")
c) adequate, relevant and limited to necessity in connection with the purposes for which it is treated (minimization of data.)”
Thus, the lawful nature of data treatment will be in a co-relation with lawfulness of data collection: requirements must be complied with so that data collection is lawful, correct and in line with the regulations.
III. Operators and Companies
Regulations for Manufacturers and Flights
As pointed out before, flying requires criterion and safety; you need to know what you are doing from the technical and legal points of view. Before Law 18/2014 was enacted, professional drone users from the above sectors were users committed to safety, both of the aircraft and of its environment. Having made larger investments in equipment (aircraft and payload), they increased the safety measures of the operation.
However, as new aerial systems came up in the market, with considerably lower prices and better flying capacities, there was an increase the number of people who lacked the necessary training and/or knowledge, from the point of view of operation and regarding application sectors (aero visual, cartography and topography, among others.)
The regulations mitigate some of those aspects and also establish the current operating procedures and open the doors to new scenarios. One of the aspects to be highlighted is training on the aircraft characteristics and operation, as well as its legal documents. These may both seem to be trivial; however, not every option offered in the market complies with minimum quality standards. This results in a lack of safety in the operations and outcomes of the services offered. Regarding consulting and advisory services, it is necessary to find companies that implement client training on aircraft (operation, planning, maintenance activities, good flying practices) which supplement the piloting training required by AESA (that is to say that, apart from theoretical training, they must receive hands-on training on the aircraft and be provided with the relevant Operation and Maintenance Manuals, and the protocols to be followed.)
Therefore, one of the current challenges of the market is to facilitate and ensure the availability of the documents required by AESA, as an obligation for all the parties involved in flying operations.
It is worth noting that not all aircraft in the market operate in the same way and not all flight operations use the same safety and quality standards. A business owner of the sector considered that "AESA is seeking to mitigate this situation by means of an effort that is plausible in the professional environment and in complex operational scenarios." This means, in simple terms, that there should be no "undocumented, daring or audacious" people who might fly drones "without using their head and without having the necessary documents."
Manufacturers and Distributors
In regard to the regulation of manufacturers and distributors, the capacity and action of these agents is directly limited. In the industry, it is often pointed out that the rules lack clarity. Also, they need legal interpretation, which would help mitigate those risks and doubts by providing more clarity, information and previous technical and legal advisory services for administrative dealings.
Another issue for professionals in this sector is the need to eliminate some of the administrative red tape. The timing required to grant authorizations is often unacceptable for a market that requires a timely delivery of products and services in respect to making flight operations.
Lastly, it’s important to follow up on the changes introduced in the regulations and ensure there is a proper channel to offer feedback for professionals and organizations. It is key to try and develop and understand different operation scenarios, so that they become feasible and offer technical and legal security. It is possible that, at the regulatory level, the efforts made are seeking to offer an extremely broad field of work. However, at the same time, there are demands for safety and a series of formal steps that, in practice, raise barriers to entry and represent serious limitations. It might be advisable to have drone regulations developed more gradually, synchronized with less bureaucratic steps, in terms of form and time consumed.
IV. Practical Recommendations for Drones
Having established the immediate descriptive and legal parameters, other questions to consider: Which drone is the most appropriate for professional purposes? Will my drone help me complete the work commissioned, successfully? With the desired quality level and within the budgeted cost?
As pointed out above, these and many other questions are posed by professionals using drones to carry out their professional activity. The enhanced platforms, the development of sensors for payloads (both new and enhanced), the integration capabilities and the potential areas of use bring more questions every day.
When low cost, recreational platforms appeared in the market, there was a greater awareness of aircraft, for personal use as well as to be applied in the professional world. This area of overlap between recreational and professional applications is currently the subject matter of a live debate as there has been intrusion in certain professions, which have been forced to readapt themselves and/or to eventually become more professional.
This is where it becomes important to make sure the operator not only can pilot the air craft, but also the appropriate methodological knowledge used to achieve the expected results.
Companies at the Service of Drones
With the technical advancements and regulatory developments, many new companies have been created to provide different drone services. One of those companies, AllTerra , offers geospatial solutions and helps enhance production processes. In fact, they base all drone flying operations on four key pillars: Planning, Aircraft, Sensor and Processing Programs. These four pillars are part of a whole, and knowing how they relate to each other will bring about successful results.
This —which seems so evident— is often not translated into practice, and results in non-compliance, redundant jobs, poor results, excessive costs and, in some cases, legal conflicts.
V. A Possible Future Perspective for the Drone Market
As evidenced, the market is likely to show a greater segmentation and specialization among operators (and therefore, in the market.) Each operator might have a fleet of drones with different investment values, which must not replace but supplement each other. This segmentation must be based on the broader experience and knowledge of the companies and result from a deep analysis of the operating costs of the application aircraft and others. Several studies carried out show that investing in drones translate into lower operating costs. Operating costs are reduced by up to 85% compared to a 5% investment in capital goods.
By 2025, we should see some significant change in the use of drones. In the field of civil engineering applications, we have gone from a state of absolute freedom without incidents to a strong reduction in the volume of operations, which coincides with the new regulations. Since the regulations were adopted, professionals have limited the use of drones, perhaps more for fear of sanctions than for an interest in keeping safety, as they do not know certainly what they can and cannot do (it is true that lately those doubts have been reduced —and even eliminated— by means of training and communications from AESA).
Current regulations are not blocking innovation in the world of drones. However, it does limit the speed of such innovation and their entry into the market. This restraint is evidenced by the time required for administrative dealings, which limits the operation and therefore, the time-to-market of the products and services demanded by companies.
On the other hand, another barrier found by the industry is the limited number of areas where drones may fly for demonstrations, which must have certain characteristics and orographies. These include respecting private properties and not violating the regulations of tests and flights, which carry severe penalties.
The current regulations have opened the possibility to carry out new operations and conduct them in a safer manner. These flights require the specific approval of each operator and each operating scenario. As expressed by AESA, there are two different uses of RPA (recreational and professional), with distinct requirements —and penalties for violations— for each of them, as well regarding breaches of the regulations on data protection.
In conclusion, the minimal requirements for flight and operations needs further clarification and the processing time to receive the appropriate paperwork and flight documentation needs to become more efficient.