By Steve Thorpe
Legal News
“Drones aren’t bad, it’s the bad things some people do with them,” says successful commercial drone operator Harry Arnold.
So, there are rules and laws to deal with that, right?
Ummm, kind of.
The Federal Aviation Administration has predicted that 2.5 million drones will be in use in the U.S. by the end of 2016 and that by 2020 the number may rise to 7 million.
The State Bar of Michigan’s Solo and Small Firm Section and Aviation Law Section co-hosted a seminar on Michigan drone law on Thursday, June 9, at the University of Detroit Mercy School of Law in Detroit.
The event’s speakers were attorney David R. Baxter of Gallagher Sharp LLP in Detroit and Harry C. Arnold of Detroit Drone, a leading aerial photography and videography service in Michigan.
Baxter’s practice focuses on aviation industry law. He has represented aircraft owners, airports and pilots in personal injury, wrongful death, property damage, product liability, premises liability, cargo and regulatory litigation. He has appeared before the National Transportation Safety Board and presented testimony about unmanned aerial vehicles to the Michigan House of Representatives Committee on Criminal Justice.
Arnold has a 40-year-long background in photography and videography and more than 25 years in computer programming and editing. His drones have been hired for commercial and firefighting purposes.
In addition to aviation law, drones raise legal issues in the areas of personal injury, property damage, real estate and privacy law. Attorneys may advise drone owners of their liability as well as the rules by which they can legally operate. Criminal defense attorneys may also be involved, as the Michigan legislature is currently advancing a bill to set misdemeanor penalties for misuse of drones.
Arnold pointed out that practical, affordable drones haven’t been around very long.
“Drones started to become popular seven or eight years ago after some breakthroughs in microprocessors, specifically T32 chips, that let gyroscopes be connected to motors for instantaneous stabilization,” he said. “The old gyrocopters, you were happy just to get it back on the ground in one piece.”
Arnold pointed out that the affordability and ease of acquiring a drone have both dramatically shortened the learning curve for drones, which can lead to problems.
“I come from a background in RC (radio-controlled) aircraft,” he said. “We would have old timers at the field who would take us under their wing and say ‘Do this, no, don’t do that.’ There were a lot of failures and you’d want the advice of those more experienced people. Now you can pull out your credit card and buy a drone that’s capable of distances and elevations of a mile — enough to get you into trouble. Just charge the battery and you’re off.”
If the new operators are facing challenges because of these rapid advances, imagine the poor Federal Aviation Administration.
“The FAA was supposed to be on top of this and last September they were supposed to come out with their rules,” Baxter said. “Unfortunately, the Administrator was unable to do that. The U.S. Senate called him to a hearing and read him the riot act about why he didn’t get it done on time.”
This has caused a lot of confusion and frustration for drone operators.
“It’s been ‘coming out’ every year for the last five years,” said Arnold. “It’s like Lucy holding that football for Charlie Brown.”
“Hopefully this year it will happen and provide solid rules, allowing hobbyists and drone businesses to flourish.”
Even as the FAA stumbles toward regulations, they go after drone operators for general rules that are already on the books regarding safe operation.
A Chicago drone photography company called SkyPan used drones for real estate clients.
“SkyPan made the mistake of declaring that the FAA couldn’t regulate them,” said Baxter. “The road to low places starts with the declaration that a federal authority doesn’t have jurisdiction over you.”
The FAA said that SkyPan couldn’t show that they had a certified pilot operating each flight. They went to SkyPan’s own web page to document the number of flights and assessed a penalty of $1.2 million. That is still being contested.
The states have responded to the demand for restrictions and regulations by producing a flurry of initiatives in state legislatures, some of it misguided and uninformed. At least 41 states have considered legislation related to drones in the 2016 legislative session. Twelve states — Arizona, Idaho, Indiana, Kansas, Louisiana, Oklahoma, Oregon, Tennessee, Utah, Vermont, Virginia and Wisconsin — have passed 16 pieces of legislation.
Michigan has taken a more subdued approach to the issue and already has an aeronautics code, Title 259 of the MCL, that mirrors much of the federal regulations on minimum altitudes and safe distances.
“There’s really no distinction between Michigan’s regulations on aircraft usage and the Feds,” said Baxter. “If there was a difference, the Michigan rule would be pre-empted by the federal code.”
Although the two speakers disagreed on some issues, like whether a small drone is actually, for legal purposes, an aircraft (Baxter — yes, Arnold — no), they agreed that the legal landscape for drones is changing rapidly and both attorneys and operators need to keep up.
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