Drone flies from hotel near Space Needle

     In our last article, we reported on the rise in interest and use of personal drones or “quadcopters”. On almost a daily basis now, one can find a news story about drone incidents or videos of the stunning pictures that users can take from the sky, as they are increasingly being used to capture aerial footage. Such use poses privacy and trespass concerns, and there obviously are also safety concerns. However, drone usage seems to be outpacing the development of laws or regulations that might govern them

     It only seems logical that the Federal Aviation Administration (“FAA”) would be the first place to look for laws regulating the operation of drones. Surprisingly, however, attempting to do so is akin to playing a game of connect-the-dots without the benefit of the numbers. First, when the FAA’s regulations were initially promulgated over a half-century ago, nothing in them specifically regulated the operation of drones. Second, it was only over time that the FAA, in a piecemeal-fashion, started to address the operation of drones by issuing a series of “advisory circulars” and policy statements.

      Because of the ambiguity, vagueness, and over-breadth of these advisory circulars and policy statements, the regulation of drones currently remains in a state of flux. The FAA essentially stuck its regulatory nose in drone usage in a situation that ended in a case styled FAA v. Pirker. Raphael Pirker was contracted by the University of Virginia to shoot a publicity video of the campus, for which he used his camera-equipped drone. Upon learning of this, the FAA fined Pirker $10,000 for violating its regulations restricting the use of “commercial” drones. Last March, however, a federal administrative law judge sided with Pirker, holding, in essence, that Pirker’s drone constituted a model aircraft, and, because the FAA did not have regulations governing model aircraft, the FAA’s rules restricting the use of commercial drones were non-binding and non-regulatory. Rather, Pirker was subject only to the FAA’s “requested voluntary compliance” rules (FAA Advisory Circular 91-57) for model aircraft hobbyists: flying below 400 feet; selection of an operating site of sufficient distance from populated areas; and not flying the model aircraft within three miles of an airport without first notifying the control tower or flight service station. Since the FAA is appealing, the decision has, in effect, been stayed.

      The FAA has been tasked by Congress to design new regulations by September 2015 governing the use and operation of drones. In furtherance thereof, the FAA, in 2013, released its roadmap on the integration of unmanned aircraft into national airspace. Since last year, 13 states have enacted their own laws regulating the operation and use of drones. These state laws are not uniform and, although many are applicable to state agencies, some apply to private operators as well. In Tennessee, it is illegal to use a drone to photograph hunters and fishermen without their consent. It is illegal in Wisconsin to equip a drone with a weapon. Texas and Montana prohibit a private operator from using a drone to conduct surveillance of or photograph an individual on private property without first obtaining the individual’s consent. A drone operator in Oregon is prohibited from flying a drone less than 400 feet over another person’s private property without first obtaining consent of the owner or resident.

      So far this year, 36 states attempted to follow the 13 other states by introducing or attempting to pass legislation regulating the operation and use of drones. Many of these states will revisit these issues during their next legislative sessions. What this means is that, in order to fill in the void created by the FAA, more and more states are passing their own laws regulating the operation and use of drones, whether directed to state agencies or private individuals or both.

      Although a drone operator may be familiar with his state’s laws (or the absence thereof), he should become familiar with drone laws of other states when operating drones in those states. Coining an old (but still viable) adage, “Ignorance is no excuse of the law.” Recently a tourist in Seattle, Washington operated a drone from his fifth floor hotel room, photographing visitors on the observation deck (520 feet above ground) of the Space Needle. Fortunately for the operator, the State of Washington had no laws prohibiting him from operating his drone in this manner.

     As technology changes, so does society; and as society changes, so do laws. In other words, the drones are here, and not far behind are increasing (and differing) laws regulating their operation and use.

 

#drones  #remotely piloted vehicles  #quadcopter  #personaldrones  #FAA  #state laws

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