– Photo courtesy of Mika Meyers
By Cynthia Price
Legal News
The regulatory framework surrounding drones — along with a host of other legal issues — is ill-defined but rapidly evolving. And it is a safe bet that Joshua Beard of Mika Meyers Beckett and Jones will have a good grasp of whatever direction it takes.
An article Beard wrote for the December 2015 Michigan Bar Journal stated the situation in a slightly different way; its title is “Up in the Air.”
Even since that publication, regulations have changed significantly, said Beard, a graduate of Michigan State University and University of Michigan Law School.
Such uncertainty and rapid change are to be expected with any area of technology as new as drones, especially one that has captured the public imagination the way drones have.
A drone is defined as an unmanned aircraft guided by remote control or on-board computers. Drones also are called Unmanned Aerial Vehicles (UAVs), or Unmanned Aircraft Systems.
Originally associated most closely with the aircraft used in military operations — a history that started in the 1800s but was facilitated by technological advances in the 1980s and 1990s — drone technology has grown to encompass a wide variety of hobby and commercial uses.
There is, of course, a precedent in the long-popular “model airplane.”
Early enthusiasts established the Academy of Model Aeronautics (AMA) in 1936, and it now boasts over 175,000 members and sanctions over 2500 chapters nationwide.
Model aircraft, however, differ from drones in several respects, one of the most important of which is that they are routinely operated within the line of sight of the person flying.
This is important in regards to many of the legal issues around hobby drone use. Recent incidents include crashes (once into the stands of the U.S. Open tennis match), interference with emergency firefighting and commercial flights, use of weapons on drones, and even dropping drugs into prison yards, There are substantial privacy issues, whether in hobby or commercial use.
One factor that sets drone law apart is that it falls under the jurisdiction of the Federal Aviation Administration (FAA), which has broad authority over everything “up in the air.”
Created by the Federal Aviation Act of 1958, the national agency is charged with “develop[ing] plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace,” pre-empting the states’ rights to do so.
As Beard explained in his article, the 1958 act made no mention of unmanned aircraft and the FAA set up its policies and regulations without really considering them.
Then, in 1981, it issued “Advisory Circular 91-57” with voluntary standards for hobbyist use of model aircraft, recommending that UAVs be flown away from populated areas and noise-sensitive areas. It advised model aircraft operators not to fly higher than 400 feet nor within three miles of an airport unless the airport operator is notified.
Later, in 2003, the Century of Aviation Reauthorization Act specifically mentioned UAVs as falling under FAA authority, and in 2007 the FAA warned commercial entities using drones that they could not rely on Circular 91-57 as guidance for how to operate, as most had been doing.
Then came FMRA, the FAA Modernization and Reform Act of 2012, which included in its policy recommendations that the FAA integrate UAVs into the national airspace system, and mandated an integration plan and a final rule for civil operation of small drones. FMRA “simplified the exemption process for commercial use of drones,” according to Beard in his Michigan Bar Journal article, but set up a safe harbor for hobbyist use of model aircraft.
However, the U.S. Department of Transportation, which houses the FAA, declared in late 2015 that due to the proliferation of small drones, it would regulate hobbyist use to some degree by requiring operators to register and display the registration number on the vehicle. As Beard’s article left off, a task force was slated to make recommendations on this by Nov. 20.
That report has since been received, and on Dec. 21, the FAA started requiring such registrations. A Jan. 6 article reported that over 181,000 hobbyists had complied.
The agency is also conducting a public awareness campaign so hobbyists and others know they must register. “They’ve released a smart phone app, B4UFLY, that can tell you if it’s safe to fly based on your location, and that’s part of the campaign,” Beard says.
The requirement was not necessarily met with widespread approval. The AMA is instrumental in advocacy to exempt hobbyist model aircraft operators from the registration process, and has already won some concessions from the FAA, though unofficially. These include allowing AMA members to use their AMA number as the identification number on the vehicle, automatic renewal of registration if people maintain their AMA memberships, and some negotiations on the renewal fees.
(Registration is at no charge until January 19.) The AMA hopes that in the future federal registration will be automatic with AMA membership so hobbyists can avoid duplication of effort.
“The requirement for hobbyists to register is a bit contentious,” said Beard. “But it will be easier to control a lot of the other issues once drones are registered and display the number. People think more carefully when they know their drone is tied to them.”
Beard’s interest in the subject is primarily academic.
Though he has an indoor drone, he says he still sometimes crashes it.
“I practice aviation law and it’s a new exciting area. I’m interested because the new laws are just developing, so when the State Bar asked the Aviation Section to write an article for the journal, I claimed the topic,” he explained.
The article is part of the way Beard engages in his practice, which also includes lectures and leading workshops.
He is a member of the energy, litigation, and local government practice groups at Mika Meyers, and focuses on energy/oil and gas law as well as aviation law. He also does general civil litigation at the state and federal courts and property tax litigation before the Michigan Tax Tribunal.
Beard serves the community as president of the CDS (Child Development Services) Lakeshore Head Start, and he is also on the Legal and Legislative Committee for the Michigan Oil and Gas Association.
Beard, who represents buyers and sellers in aircraft sales transactions and advises on regulatory enforcement, has a strong interest in the commercial uses of drones.
This area of the law is still “foggy,” as Beard put it, but more certainty is in the offing for the near future.
The FAA released its rulemaking notice early last year. Though it is hard to predict how much time it will take to finalize them, it is likely that many of the proposed rules will not change.
The proposals cover drones less than 55 pounds with everything on board, and all drones over .55 pound must be registered. (Beard says that .55 pound, or 250 grams, is “about two sticks of butter,” and that drones weighing less than that are, as a rule, toys.)
They require that commercial drones operate at a maximum 87 knots (100 miles per hour), are used only during daylight hours, and that they not travel more than 500 feet above ground level. Registration and display of the registration number are musts.
As Beard pointed out, the commercial applications are limited only by the imagination of entrepreneurs and business people and already include such activities as fine art photography, surveillance of agricultural crops to see if they need watering or have visually-discernible problems, and “showing” all aspects of a home by real estate salespeople.
The sooner commercial activities can be reliably regulated, he said, the better the chances for creative ideas about what drones can do.
And what about the rest of the legal issues entailed in the growing use of drones, including with law enforcement?
“I think it’s safe to say that there are going to be traditional state laws that apply, for trespass, issues of warrants, privacy... The law is still really developing in this area, but I think a lot of this will fit into traditional law,” Beard said.
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