Up in the air: Law concerning drone use still evolving

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– Photos by Frank Weir


By Frank Weir
Legal News

Before you head out with a child or grandchild to test out their new drone Christmas gift, be aware that you may be flying into some pretty choppy air.

After realizing the regulations involved, you may long for those halcyon days of playing catch with a baseball or football.

For starters, you are likely within 5 nautical miles of an airport so you’ll need to notify the authorities what you are doing as well as the airport’s control tower if it has one. Now that doesn’t sound like toy playtime does it?

These and other nuggets on the emerging law of drones were discussed recently by Matthew Berard, an associate at Bowman and Brooke in Detroit practicing product liability litigation with a strong focus on automotive, aviation, and drone law. He is a licensed private pilot and assists businesses with navigating FAA regulations for commercial drone operations and addressing drone insurance considerations.

The January 11 noon program was jointly sponsored by the Washtenaw County Bar Association’s Federal, Real Estate and Trial Practice sections.

True enough, Berard explained there are different regulations for hobby or recreational use of drones versus commercial usage, but, yes with some exceptions, there ARE
rules including:

• No license is required but it must truly be hobby or recreational use;

• Follow community-based safety guidelines which limit maximum altitude to 400 feet; the drone must remain in your line of sight; you cannot fly over people or sporting events; and of, course you have to “give way” to manned aircraft.

• Drones weighing over just 0.55 pounds and up to 55 pounds must be registered with the FAA, a task that can be completed online. Heavier drones weighing more than 55 pounds must be registered through FAA paperwork and are subject to greater regulation.

“Another area of great concern are the ‘line of sight’ flight rules,” Berard said. “This is crucial to commercial uses such as Amazon that has proposed automated delivery of purchases by drone. That’s currently not possible since the FAA requires that the drone operator maintain direct visual contact with the drone.

“You can use onboard visual systems like First Person View (FPV), but only as a supplement to direct visual contact,” Berard said. “Congress has been hinting to the FAA that it needs to develop guidelines around using drones for commercial delivery.”

Berard noted that the attitude of the FAA about drone regulation enforcement generally has been one of education rather than actively punishing violators. Given the volume of drones, the FAA must rely on local law enforcement to investigate most incidents, Berard said.

If someone has a concern about drone usage, they should call the local police who will then refer the matter to the FAA. If there is a violation, the agency will then follow up typically with a letter explaining the factual basis of it and the proposed fine or remedy, according to Berard.

However, there have been instances where fines were assessed for improper drone use, Berard indicated. In a highly publicized May 2015 case, a drunken government employee flew a drone onto the White House lawn. The 30-mile radius around Washington, D.C. is effectively a no-fly zone after 9/11.

In another case, a drone was flown over a hot dog eating contest in New York to obtain photos, Berard noted, resulting in a heavy fine.

The largest penalty so far – $1.9 million – was assessed for repeatedly flying a drone near Manhattan skyscrapers and in highly congested airspace, Berard said.

During his January 11 presentation, Berard cited a local example that illustrates the concern the FAA has about drone usage and why the regulations are “a big deal.”

“There was an example very close to the Oakland County Airport, the second busiest in the state for takeoffs and landings,” Berard said. “A realtor used a drone to take photos of a property for sale on a lake near the airport. Because it was a commercial use of a drone, the realtor was subject to more regulations than a hobbyist.  A Section 333 waiver was needed at that point in time to even fly commercially. And given where the realtor was flying, the airport and air traffic control tower should have been contacted.

“I’ve flown out of that airport many times,” Berard said,  “and when you are talking to the tower, descending to land, the last thing you want to have to worry about is a drone operated by a realtor.”

He noted further that there are more than 200 airports in the state so it’s likely that most drone operators are within 5 nautical miles of commercial airstrips.

“There isn’t a lot of traffic at these grass airstrips with no control tower, but there is a potential for tragedy if a farmer is using a drone to check crops not realizing he could be operating on the final approach to an airport,” Berard said.

Berard also noted that there can be sudden no-fly designations, known as Temporary Flight Restric-

tions (TFRs), around airports or cities. The TFRs are put in place when certain government leaders fly to the state and can stretch as far as 30 miles around an airport. TFRs also exist around certain sporting events or other large gatherings of people.

In a recent incident, the crew of an airliner in Mozambique reported that it collided with a drone. The aircraft’s nose cone reportedly suffered damage during the collision.

“I actually thought it would happen more often than it has, but it’s crucial that drone pilots follow the regulations,” Berard said. “Yet, there have been no shortage of close calls.”

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