Comment: A moving target: What you need to know about drone regulations

by William C. Johnson and Dakota J. Burt
Friday, June 16, 2017

In 2015, about 700,000 drones were sold in the U.S. In 2016, the number exceeded 2.5 million. And the Federal Aviation Administration (FAA) has estimated that annual sales will reach 7 million in 2020, with fewer than half of those being operated by commercial users. Drones, or unmanned aerial systems (UASs), have gone from expensive tools primarily used for military and other high-end applications to easily accessible devices used widely for recreation, education, research and everyday commercial enterprises. Reduced costs, wide availability and a growing number of models designed for diverse applications have made drones exceptionally popular.

Not surprisingly, the growth in drone use, especially by hobbyists, has caused concern among local, state and federal agencies, as well as among individuals wary of the new technology. The FAA is working to come up with new rules, but such regulations are currently in their adolescence, with future updates and changes anticipated. And the National Transportation Safety Board (NTSB) and local law enforcement agencies are trying to figure out how to enforce these rules. Notable questions remain in these regulatory efforts, particularly with respect to how uses are defined, as either commercial or hobby, and where academic uses fit in. Nonetheless, to avoid potentially large fines and even possible jail time, it is important for both current and future UAS operators to understand the rules as they stand currently, and how they are applied.

First and foremost, UAS pilots must understand the regulations that apply to all drone users. Basic rules of operation specify that pilots must be at least 13 years old, fly only in daylight, stay below the maximum altitude of 400 feet (unless you are within 400 feet of a structure, in which case you can fly up to 400 feet above the structure), only operate one drone at a time, and obtain permission from Air Traffic Control if they are within 5 miles of an airport or in class B, C, D or E airspace. Additionally, drones must not be flown beyond the unaided line of sight; with less than 3 miles of visibility; in excess of 100 miles per hour; over large groups of people; near power plants; out of a moving vehicle; or while carrying hazardous materials or weapons. Most of these regulations are waivable, but waivers typically require the assistance of a lawyer or consultant and may take weeks or months to obtain. Additionally, until recently, all UASs between the weights of 0.55 and 55 pounds had to be registered with the FAA. In May, though, the U.S. Court of Appeals (for the District of Columbia) struck down the FAA’s registration requirement (and fee) for owners of drones used for recreation. It is yet to be determined if the FAA will ask Congress to repeal or amend the 2012 prohibition of the FAA to regulate model aircraft. Stay tuned on that one, as the rules are frequently changing.

Things get even hairier when you look at FAA regulations considering whether the intended use of a UAS is for commercial or recreational purposes. Commercial operations are those involving payments for services or those in which an individual (or one of his/her constituents) uses a drone to fulfill duties for a job (inevitably affecting that person’s compensation). If you’re considered a commercial UAS pilot, you must first obtain a Part 107 remote pilot certificate, for which you must be a U.S. citizen older than 16, have no disabilities inhibiting UAS operation, and pass an aeronautical knowledge test and a Transportation Safety Administration screening. You must also report all crashes with severe injury or substantial damage (defined differently by both the NTSB and FAA) to the NTSB (immediately) and FAA (within 10 days).

But where do educational and academic research uses fit in? UAS use for education or academic research doesn’t seem to fit into either the commercial or recreational use categories. This glaring issue was partially addressed in an FAA memorandum interpreting Section 336 of the FAA Modernization and Reform Act of 2012, which essentially divided academic operations between hobby use and commercial use.

As geoscientists and drone users, but by no means legal experts, we have used online and other resources to see the practical side of the memorandum’s language. The memo says students are allowed to fly drones as recreational users if the flight is for their own research (related to degree advancement), for furthering their education, and doesn’t result in compensation. Instructors are considered hobbyists if 1) they fly a drone as part of a course whose primary focus is unrelated to drones — for example, having geology students observe an outcrop in an inaccessible location by using a drone flown by the instructor — or 2) the course focuses on UAS use but the instructor does not operate the drone during educational flights other than to intervene with crashes or aid in landing or takeoff. If an instructor pilots a drone for the purpose of teaching students how to fly them, he or she is not a hobbyist and should first obtain a remote pilot certificate. Given that instructors are compensated for their knowledge, piloting a drone while teaching then becomes a commercial operation.

Faculty research is also considered nonhobbyist because it is an occupational duty and directly affects compensation. Students and research assistants should not fly a drone to conduct research in lieu of faculty unless they have a remote pilot certificate or if the primary researcher, who has a remote pilot certificate, is present and observing the flight. This is our understanding, but if any academics using drones in an instructional setting are uncertain about pertinent drone regulations, you should consult an attorney specializing in drone law and definitely obtain a remote pilot certificate.

The FAA’s primary mission is to oversee the safe operation of aircraft, so the highly controversial issues of privacy infringements and trespassing with respect to drone use have fallen to the U.S. court system and to state and local governments to sort out. This has state legislatures, in particular, trying to decide how UASs should be regulated — a challenge because both economic and privacy concerns are at stake.

Many UASs are equipped with cameras that can take still and video imagery as well as stream live feeds, making many people wary of drone users and their intentions. Laws written to safeguard personal privacy are reportedly similar to paparazzi laws, making offenses difficult to prove and limiting the laws' effectiveness. Ineffective regulation has led to many instances of individuals taking the law into their own hands by shooting down or otherwise disabling drones, which inevitably leads to lawsuits. One recent lawsuit is Boggs vs. Merideth, in which a Kentucky landowner (William H. Merideth) shot down a UAS flown by David Boggs, over a claim of trespassing and invasion of privacy. The hope was that the ultimate outcome of this lawsuit, by addressing what constitutes trespassing with a drone and how navigable airspace is defined — for example, at what altitude above the ground an individual no longer has property rights — would significantly influence additional state and local regulations as well as case law related to drones. But in March, the case was dismissed from the U.S. District Court for the Western District of Kentucky. Whether it will be appealed or relegated to lower courts remains to be seen, but for the time being the question at hand — basically, whether someone can shoot down a drone — still hasn’t been answered.

Similarly, a bill recently introduced by an Oklahoma state legislator would allow property owners to legally shoot down drones if they are in the airspace above their property. There are many arguments against this becoming law, including the fact that drones are classified as aircraft and it is not legal to shoot down aircraft. Nonetheless, according to the National Conference of State Legislatures, more than 30 states have enacted laws pertaining to UAS operation. It is no surprise that drone law has become a specialization for many lawyers and even for entire law firms, especially given the explosive growth in commercial UAS applications such as those related to agriculture. If not already the case, we may see the emergence of lawyers specializing in personal injury due to drone mishaps. In fact, the FAA just released its final drone risk report — ASSURE UAS Ground Collision Severity Evaluation Report — a university-led study of potential drone injury to humans.

Geoscientists interested in using drones in their research should familiarize themselves with all relevant federal regulations; be aware of local regulations and restrictions governing the use of UASs; obtain permission from the appropriate parties; and secure appropriate and adequate insurance coverage. This is definitely an environment where you’re better off safe than sorry.

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