Commercial Drones PilotsLegal skies overcast for drone businesses

October 31, 2021by helo-10

Learning to fly a drone is easy.

Learning to navigate the laws that govern where they can be flown, by whom and for what purposes is the hard part.

Even the experts on drones, also known as unmanned aerial systems (UAS), can’t agree on what’s legal and what’s not. They do largely agree on one thing, though: There needs to be some consistency before a patchwork of local laws and regulations stifle the UAS industry.

“I think it’s going to end up at the federal level and probably before the Supreme Court,” predicts Vic Moss, chief operating officer of Drone Service Providers Alliance in Denver and a member of the Federal Aviation Administration’s Drone Advisory committee. “It will get to the point where it’s just a matter of ‘where is the navigable airspace with respect to drones? But in the meantime, you’re going to have all of these little cities passing their own laws.”

That’s a potential nightmare for UAS operators ranging from big players like Amazon, which hopes to use drones for package delivery, to individual pilots who take photos for real estate clients or help farmers map and analyze their fields.

“I primarily do agriculture. That could be anywhere in the northern half of Ohio for me,” said Tom Taconet, owner of Avon UAS in Lorain County. “So, if every (local government) is doing their own thing, trying to figure out where I can fly and what I can fly, it’s just going to be impossible. It’s going to impact my drone business, but it’s also going to affect the farmers, because they’re calling me for a reason.”

The issue is becoming a bigger blip on the radar of UAS pilots locally, because drone laws are being passed by local governments in Northeast Ohio. Currently, the city of Brook Park is considering legislation that has some in the industry concerned.

“Last (month) social media started sparking up with comments about Brook Park kind of going off the rails and making an anti-drone ordinance that was very heavy handed,” said Chad Hankins, who operates Tamarack Aerial Services in Brook Park, a company that does inspections and modeling of cell-phone towers and other vertical structures.

“It’s comprised of things that are not in the realm of cities to control, such as the airspace,” Hankins said of the proposed Brook Park law.

Hankins knows his stuff. In addition to running a UAS business that must keep 35 pilots across the U.S. from running afoul of the law, he teaches pilots how to stay legal via classes at Cuyahoga Community College and offered by the Ohio Aerospace Institute.

Hankins is going by the reasoning — followed by many, perhaps even the majority of those in the UAS industry — that the regulation of airspace for drones is the sole purview of the FAA. So, they reckon, if a pilot is in compliance with FAA rules and the FAA says that pilot can fly in airspace that’s public domain, no local or state government can enforce a law that says otherwise.

Brook Park’s legislation is not unique. It’s patterned after a law put in place by Aurora in 2020, said Ward 1 Councilman Tom Troyer, who introduced the Brook Park measure.

That Aurora law states no one shall operate a drone within the city limits if the craft is within 1,000 feet of any school property, city-owned buildings, cell towers, utility sub stations or active crime and fire scenes. It also prohibits photography of anyone on private property, without the property owner’s permission, unless the person photographed could also be seen without a drone.

Troyer said he’s not trying to hurt anyone’s business or the industry as a whole, but that the city needs to protect its assets and people’s privacy.

“I’m just trying to get something going because I think we’re going to see more and more of them,” Troyer said, adding that he’d been asking for some sort of legislation for five years before he submitted his own. “It’s just basic legislation, basically stolen from Aurora. It’s the same legislation they have. … It will probably be amended a little bit, depending upon what council wants to use.”

While the law seems reasonable to Troyer, that’s not how UAS advocates see it.

“This is very disheartening,” said Jason Lorenzon, a commercial pilot and aviation law attorney who teaches at Kent State University, of the proposed legislation.

Lorenzon says such laws not only make it more difficult for commercial UAS operators to work here, but also make Ohio appear to be unfriendly to drone-based businesses.

“What Aurora is doing and what Brook Park is trying to do is going to chill some of those bigger companies away,” Lorenzon said. “Companies like Amazon, FedEx, the big players, even Google, they all have their people looking for legislation like this, so it really makes our area unattractive to business.”

But while Lorenzon thinks the Aurora law and Brook Park’s legislation likely overstep the cities’ authority to regulate drone flights, he differs from Moss, Hankins and others in the industry when it comes to what cities or other local governments can do.

Lorenzon disagrees with the FAA and many other in the drone industry when it comes to how much of the airspace is the FAA’s sole authority

“The FAA thinks they regulate airspace from the blade of grass up and that’s not true,” Lorenzon said.

He also asserts that private citizens have the right to say who can fly over their property, at least at the altitudes below 400 feet at which drones are allowed to fly.

“That’s 100% incorrect,” said Moss, of the Drone Service Providers Alliance. “If I couldn’t fly over private property, I couldn’t do my job.”

For its part, the FAA seems to side with Moss.

“Federal law gives the FAA sole jurisdiction over the nation’s airspace,” FAA spokeswoman Emma Duncan said via email. “A local law that bans people from taking off or landing drones on public property may not conflict with the FAA’s jurisdiction. … However, a local law that bans people from flying drones in certain airspace likely would conflict with the FAA’s jurisdiction.”

A chief issue that UAS advocates would like to see addressed at the federal level is the concept of “navigable airspace,” which is what the FAA is legally authorized to regulate. According to the FAA, navigable airspace is “the airspace at or above the minimum altitudes of flight” that an aircraft requires to operate safely.

But what aircraft? The court case that defines much of the matter is from 1946, when a North Carolina chicken farmer named Thomas Causby successfully sued the federal government for flying military aircraft below 100 feet over his farm and killing his chickens.

The U.S. Supreme Court ruled that Causby had a right to the air space immediately above his property, but also affirmed that navigable airspace was public domain. The government, via the FAA, ended up regulating airspace beginning in 1958 and settled on 500 feet as the lowest altitude for navigable airspace in most cases.

But UAS advocates point out that there were no compact drones in 1958 — and today’s drones certainly don’t need to be 500 feet in the air to maneuver. (Not to mention that drones are only allowed to fly to an altitude of 400 feet.)

What the UAS industry would like to see happen is for the FAA’s sole authority over navigable space made clear, and for that to include the airspace in which drones fly. That would mean they could fly pretty much anywhere but would be subject to the same laws regarding privacy and other matters as anyone else at the same time.

But until that happens, drone pilots are left not knowing who has jurisdiction, the FAA or cities like Aurora, Book Park or countless others that have passed local drone laws.

The problem, says Jonathan Rupprecht, a drone-law specialist in Florida who is well known in the industry, is that if pilots are arrested by the local police or sheriff, they’re on their own. They’ll probably win if they can afford to fight the matter long enough in court, he said, but they shouldn’t count on any help from the FAA, which has not come to the aid of pilots in such circumstances so far.

“I’ve never seen the FAA jump in once to defend someone, or the Department of Transportation. You’re on your own,” Rupprecht said.

He’s busy with federal cases involving the rights of drone pilots, but Rupprecht said he plans to later go after states and local governments. If he wins, he gets his attorney fees paid by the defendant, he said, but the point is to defend what he says are rights to the sky.

“It’s a federal right to fly in the navigable airways, so where do you as a city, state or county get off denying me my federal rights?” Rupprecht asks.

All well and good, but UAS operators aren’t looking for court fights or to be legal guinea pigs. They say they just want clear, uniform rules. While they wait for progress nationally, they say they hope cities will consult them before they write legislation affecting their industry, as happens with most other industries.

“We’d be glad to work with them if they’d ask,” Hankins said, noting that he was set to meet soon with Brook Park City Council on its legislation.

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There is more to being a drone pilot than just buying a machine and flying in your backyard. It can be that simple, but most of us will need to understand some drone laws before we try to take to the sky.


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