United States: Still A Bumpy Ride: Compliance Challenges Persist For Companies Looking To Get Commercial Drone Use Off The Ground

In the past several years, the wide-spread availability of reliable, affordable unmanned aerial vehicles — drones — has fueled massive public interest in the new technology, including in a diverse array of commercial applications. This is particularly true for photographers, and television or film productions companies, where drones have ability to deliver sweeping cinematic footage previously available only by using expensive, helicopter-mounted rigs. (Example 1) (Example 2)

But the promise of this technology comes with baggage: a complex web of regulations controlling virtually every aspect of how, when and where drones can fly. Recently-implemented federal regulations have finally brought some measure of legal certainty to the realm of commercial drone use, but not simplicity. Companies looking to use drones still face complicated regulatory and privacy issues, and risk significant fines or civil liability if they make a mistake.

Below, we review the need-to-know basics and flag the some more complex regulatory and privacy issues that might impact your plans to bring a drone online in your business.

Takeoff — Federal Regulation and Oversight

The Federal Aviation Administration considers drones to be a type of aircraft capable of flying in U.S. government airspace and, therefore, subject to federal regulation. After years of delay, August 2016, the FAA implemented regulations that, while onerous, have standardized the rules for authorized commercial drone use and ended the need for companies to apply for individual operational waivers.

Codified in 14 CR 107, FAA regulations govern the Who, What, Where and When of commercial drone flights:

  • Pilot. Must be at least 16 years old, hold a Remote Pilot Airman Certification (LINK to FAA Website) issued by the FAA, which involves studying a 400 page manual, passing a written standardized test, and passing a TSA background check.
  • Drone. Maximum operating weight of 55lbs, and each drone must be registered with the FAA.
  • Operational Zone. Maximum height of 400 ft. off the ground, always within visual line-of -sight of the pilot or an observer coordinating with the pilot. Cannot fly in controlled or restricted airspace without prior authorization, or over densely populated areas or crowds.
  • Operational Time. Daylight hours only, defined as 30 minutes prior to official sunrise through 30 minutes after official sunset.

While these rules appear simple, in practice they can be difficult to navigate and are enforced by hefty fines — failing to register a drone can be subject to up to $27,000 in civil penalties.

Particularly troublesome is determining whether given airspace is subject to air traffic control (ATC). FAA regulations break up controlled airspace into different classes, with Class B, C, and D generally relating to airspace surrounding major international, regional and local airports. Class E airspace is unhelpfully defined as "controlled airspace" not included in Classes B–D. Without the benefit of an obvious landmark like an airport, it can be difficult to know when you are in Class E airspace, or where to go for ATC authorization.

Knowing these distinctions is important because commercial drone flights cannot proceed in Class B–E airspace without first obtaining ATC authorization. Although it seems straightforward, many do not realize that a significant amount of urban airspace is subject to control. For example, given its proximity to three major airports, virtually all the airspace of New York City and surrounding suburbs are designated Class B–D. Technically, a professional photographer using a drone to shoot engagement photos in Central Park may first have to clear the flight with local ATC. Fines for unauthorized flights are serious, averaging between $1,100 and $2,200 per incident. Enforcement appears heaviest in the Northeast, in and round Boston, New York City, and Washington D.C.

FAA regulations, however, are just the start; depending on where the flight may occur, other federal agencies can have overlapping jurisdiction. For example, both the National Parks Service and National Oceanic and Atmospheric Administration currently ban drone flights over land or waters under their respective control. And, the Secret Service and other security agencies can designate "no-fly" zones near sensitive areas; much of Washington D.C. and surrounding suburbs are subject to additional restrictions in addition to FAA airspace rules. Recently, a 35-mile radius surrounding NRG Stadium in Houston was declared a "no drone zone" for the Super Bowl.

In an effort to alleviate operator confusion, the FAA has launched an app, B4UFLY, to help operators determine what airspace restrictions apply.

Unexpected Rough Air — State Privacy and Public Safety Laws

Even if an operator has complied with all of the federal requirements, legal pitfalls remain. State laws are a patchwork of restrictions that generally fall into two groups: statutes aimed at safeguarding individual privacy, and those intended to enhance public safety.

Privacy

The laws focus on extending privacy torts to drone-related conduct, and also attempt to reach the distribution of materials knowingly taken in violation of privacy rules. Enforcement likely occurs in the form of civil litigation brought by an individual captured in footage taken by a drone.

  • California. As it does in other areas, California has led the way in implementing comprehensive rules applicable to drones. This includes amending Cal. Civil Code § 1708.8, which deals with invasions of privacy, to prohibit (among other things) using a drone to capture pictures or video even if the drone did not physically trespass the property. Moreover, it is a violation for a person to transmit, publish or broadcast footage, if the person knows the content was created in violation of § 1708.8.
  • Texas. Under the Texas Privacy Act, it is an offense to use a drone to capture an image of an individual or privately owned real property "with the intent to conduct surveillance" unless the individual or the owner / occupant consents. See Gov't Code Ann. § 423.003. Similar laws exist in Florida. See Fla. Stat. Ann. § 934.50.

Public Safety

A variety of laws have been enacted by states that further restrict when and how drones can be operated with the aim of protecting emergency personnel or safeguarding sensitive infrastructure. Enforcement is more likely to take the form of government fines or criminal prosecution.

  • Utah. Misdemeanor for any drone to operate within the vicinity of a wildfire or interfere with emergency responders working in the area. See C.A. 1953 § 65A-3-2.5
  • Arizona. Unlawful for any person to fly a drone to photograph "critical facility" (such as power plant or other infrastructure) in furtherance of a crime, or to interfere with law enforcement, firefighters, or emergency services personnel. See R.S. § 13-3729; similar laws apply in Texas

Landing Safely

Despite this legal complexity, drones are likely to only increase in importance in particular industries. Like any other type of heavily-regulated equipment, successfully using a drone in commercial applications requires knowledge of the rules and the forethought to plan ahead. In addition to the issues outlined above, here are some additional points to consider before getting started:

  • Patience. Getting certified, registered and cleared to fly a drone takes time. Even if starting with a certified pilot, obtaining ATC authorizations can be a process. When planning for projects that involve drones, build in extra time to clear all of the additional hurdles. Resist the urge to lift-off before you have proper flight clearance, a qualified pilot, and any location or personal releases necessary to secure usable footage.
  • Protect Yourself. Does your insurance cover your new flying investment? Drones are still new to most businesses, and your existing policy may not cover claims arising from drone use. Make sure you are protected before operating fines or accidents rack up significant costs.
  • Partner-Up. For one-off projects or limited engagements, consider whether it makes more sense to retain experienced drone pilots who can deliver an all-in-one solution. Service-provider networks are already forming and advertising to the construction, real estate and media companies looking to use drones without handling everything in-house.

www.fkks.com

This post first appeared in Frankfurt Kurnit's Focus on the Data blog (www.focusonthedata.com). It provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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