Legal Advice From on High
Pizza delivery by drones is not that far in the future. Yet also in the future are FAA rules for drones. While you wait, here’s some advice from Alabama attorneys flying their own enterprise drones.
When Ken Riley, a Birmingham liability lawyer, goes out to survey an automobile accident scene, he usually takes his camera-equipped drone with him.
“For example, in accident and injury type law, I like to use my drone to look at an accident site. It’s really good, up to 40 to 50 feet high. It’s better than Google Earth for getting a good vantage point,” says Riley.
Over the past few years, unmanned aerial systems (UAS) — drones — have become big business, and from all indications will continue to grow, especially in Alabama, with its concentration of aerospace industries.
The uses for UAS are well documented — accident investigations, pipeline inspection, electrical outages, real estate, agriculture, photography, infrastructure inspection.
But the rapidly increasing use of drones has far out-paced the regulatory process.
“In 2012, Congress directed the Federal Aviation Administration to integrate UAS into the National Airspace System by Sept. 30, 2015. That deadline has now come and gone, and the FAA has yet to complete the rules for small UAS, let alone facilitate the full integration of UAS that Congress contemplated three years earlier,” says Tom McMahon, vice president of advocacy and public affairs for the Association for Unmanned Vehicle Systems International.
“The FAA needs to swiftly finalize its small UAS rule and proceed with the full UAS integration, which will create a clear regulatory framework and allow companies that follow the rules to fly. Accelerating commercial UAS will not only help businesses harness its tremendous potential, it will also help unlock the economic impact and job creation potential of the technology. But the longer we take, the more our nation risks losing its innovation edge, along with billions in economic impact and thousands of jobs,” McMahon says.
As the FAA works to finish the UAS rules, operators must receive an exemption from the agency to fly commercially. So far, the FAA has granted nearly 3,400 exemptions. That’s compared to more than 700,000 drones the Consumer Technology Association had forecast to be sold in the U.S. just last year, primarily for recreational purposes, which don’t require an exemption to fly.
According to a study by AUVSI on the first 1,000 exemptions, McMahon says, Alabama received 11. Another AUVSI report found that the unmanned aircraft industry is poised to create more than 100,000 new American jobs and more than $82 billion in economic impact in the first decade following the integration of UAS into the national airspace. In Alabama alone, the study projects that in the first decade after UAS integration, the industry would create more than 2,200 jobs and $1.8 billion in economic impact.
“Under the right regulatory environment,” McMahon says, “there’s no question that these economic numbers could go even higher.”
Alabama’s lead agency in the drone regulation arena is the Alabama Aeronautics Bureau, part of the state department of transportation. The bureau is headed by John Eagerton, a long-time conventional pilot.
“Right now, we are taking a wait-and-see approach to it,” Eagerton says. “There are a lot of issues associated with unmanned aerial systems that the Federal Aviation Administration has control over, and there are some other things happening at the federal level that we are waiting on.
“I’ll give you two examples of that. The first is that last year, the FAA issued a set of proposed rules on small unmanned aerial systems. Those are the ones that basically weigh less than 55 pounds. The regulations will affect both the commercial utilization of drones as well as the recreational hobby user. We are waiting on the FAA’s final rules to take affect.
“The best information we have right now is that the FAA will set the final rules sometime in the late spring, sometime around June of this year. That will give us a much clearer picture of what the state may or may not need to do.
“The other thing we are waiting on has just started making its way through Congress.
“That is where Congress re-authorizes the FAA, and there will be some provisions in that bill on what states may or may not be able to do in regard to unmanned aerial systems.
“So the federal picture has to get a little clearer before we embark on any regulation of drones,” says Eagerton. “Because of the way the FAA is issuing exemptions to the commercial sector, we are kind of letting that process go forward without any real effort on the state’s part. We don’t feel like we have either the authority or the need to encroach on that area right now.”
According to the FAA, by law, any aircraft operation in the national airspace requires a certificated and registered aircraft, a licensed pilot and operational approval. The approval is being granted on a case-by-case authorization for certain unmanned aircraft to perform commercial operations prior to completion of the Small UAS Rule, which will be the primary method for authorizing small UAS operations once it is complete.
According to the FAA website, “The Section 333 Exemption process provides operators who wish to pursue safe and legal entry into the NAS (National Airspace System) a competitive advantage in the UAS marketplace, thus discouraging illegal operations and improving safety. It is anticipated that this activity will result in significant economic benefits, and the FAA Administrator has identified this as a high priority project to address demand for civil operation of UAS for commercial purposes.”
Riley, who also writes a blog about the legal issues surrounding drones, says, “Under the federal regulations, as it is right now, you can register your drone. It costs $5, and that can be done very simply on the Internet. You register with the FAA, and they make you commit to a number of things, such as don’t fly your drone over 400 feet, don’t fly near airports, and that sort of thing. But there are also FAA regulations, which kick in right now, where it is illegal to fly within five miles of an airport, or actually of a landing area, so it can be a helicopter landing area or it can be a very small air strip. They actually provide you with an app now that you can put on your phone that shows you, based on your location, when you are in that zone. If you are in that zone, it doesn’t mean that you can’t fly your drone, but, by law, you are supposed to call air traffic control or at least the airport, if there is not an air traffic control.”
James Johnson, another drone user and attorney, who lives in Irvington in south Alabama, operates Legal Drone Pro and does drone aerial work for television stations and “anybody who needs aerial photography or video.”
Johnson, who has the FAA 333 waiver and is a certified drone pilot, lives on a farm and raises cattle, which he checks on via drone from his back porch.
He says he finds the current state of drone regulation “too confusing.”
“It’s hard to get answers. I like the idea of regulation. Definitely, the industry needs to be regulated, but right now there are just too many confusing and conflicting opinions.”
The state has the right approach, he says.
“I like the idea that the Alabama drone control task force has adopted — a wait-and-see approach, as opposed to what some states have done, like Florida, that say if you fly over and capture an image of someone’s property, it could potentially give rise to some civil liability or invasion of privacy that didn’t previously exist under common law.”
Riley says that as drone use increases, more legal issues are going to crop up.
“You have the potential for people getting injured, and when these things fall out of the sky…you know, they are not infallible, they are going to cause wrecks when they fall on cars, and, right now, it’s not required that you have a pilot’s license, so you have amateurs out there who are flying these things. From my perspective, liability and insurance applications are becoming issues, and insurance companies are going to have to start writing endorsements.”
As for the invasion of privacy issue, Riley says, “If somebody flies into your airspace, your back yard, and peeps on you, the privacy laws of Alabama still apply, whether it is from an unmanned drone or you just sneaking on someone’s property.”
The problems with local laws on drone use are not lost on Eagerton.
“There is a real need out there for training law enforcement personnel on what they can and cannot do in the drone area,” he says.
“There are already laws on the books that address what people should or should not be doing, so we have an attorney that is working with us, and he is developing a training program for local law enforcement personnel, and we are looking at how we can begin training law enforcement so that, if they get a call about a drone interfering with somebody’s property rights or harassing them, they will know what to do.”
Eagerton says his office also is working on education programs for drone operators and hopes to have something in place by summer.
For those wanting to take up flying an unmanned aerial system, a battery-powered, medium sized drone complete with camera can be purchased for $500, and they come with instruction manuals. Tutorials are available online. Last April, Auburn University received the nation’s first FAA approval to operate a new Unmanned Aircraft Systems Flight School as part of the Auburn University Aviation Center.
If you think drones are a fad, ponder this from Riley:
“You are going to see pizza deliveries, all kind of package deliveries, in the future, and I think your house is probably going to have a designated landing pad for drones, and I think that is coming within the next five, six, seven years.”
Get ready — Riley predicts that in less than a decade, you’ll have a drone landing pad at your home for package deliveries.
Auburn Launches First U.S. Drone School
Auburn University’s Unmanned Aircraft Systems (UAS) training program, the first in the country, is about a year old and is in position to take advantage of the country’s increasing need for commercial operators of unmanned aircraft.
Bill Hutto, director of the Auburn University Aviation Center, says the UAS program, which is open to the public, has so far conducted five of the three-day, $1,800 courses. Participants have been private citizens or representatives of companies wanting to get into the UAS business.
“Two-thirds is classroom instruction where we teach about safety features of UAS, how to do a site survey, things to look for, check lists, current rules and regulations,” says Hutto, “and then we also take them out into the field and teach them how to properly fly.”
“Now, just because you go through this course does not mean you are authorized to fly,” Hutto says. “You still have to go through the FAA process, and we teach that process. And we offer our resources after the course.”
People who have taken the course so far have been generally familiar with aviation, says Hutto. Participants should hold an FAA Airman Certificate (ATP, Commercial, Private, Recreational, Sport) and associate medical certificate (Class I, II, III or valid driver’s license for the Sport Pilot’s License). Students who do not possess an FAA certificate should have completed and passed the FAA-approved ground school. Exceptions can be considered if the student can demonstrate a basic working knowledge of weather, the National Airspace System, navigational charts, communications and aerodynamics.
“We also offer a UAS one-day ground school, for people that don’t have an aviation background, teaching them about weather and air space, and things that we feel a UAS operator needs to know and understand. Once they finish the ground school, they will enter our normal three-day course,” Hutto says.
Hutto says Auburn will eventually offer the course to regular university students who “want to add another weapon to their hire-ability arsenal.”
“Some of our precision agriculture students can use the drones to fly over fields to see where more water or fertilizer is needed or where the crops are stressed, and that probably is going to be one of the main uses statewide,” he says.
So far, each of five classes has had four enrollees, but Hutto says each class can take up to eight people. “And we can take the class on the road for specific companies,” he says.
Auburn was the nation’s first university to receive FAA approval to operate the new Unmanned Aircraft Systems Flight School as part of the Auburn University Aviation Center.
Bill Gerdes and Art Meripol are freelance contributors to Business Alabama. Gerdes is based in McCalla and Meripol in Birmingham.