Don’t Slay the Drones – New FAA Guidance for Recreational and Commercial use of Unmanned Aerial Vehicles

Lately, it seems like drones are everywhere. From flying over crowds at concerts to monitoring pipelines for leaks, drones are here to stay. As popular as drones have become, however, there is little consistent regulation from state to state, causing confusion and potential legal consequences for users, casual and commercial alike.

For example, in early 2017, a man using a drone to film elk on the National Wildlife Refuge in Wyoming spooked the herd, causing a stampede of over 1,500 animals; he was fined by the U.S. Fish and Wildlife Service for disturbing wildlife.¹ Elsewhere, a suit filed in the Sixth Circuit against William Merideth, a/k/a the “Drone Slayer,” who shot down a recreational drone that was hovering over his backyard and invading his privacy, was dismissed for failing to raise a federal issue, not involving federal parties, and not being important to the federal system.² The drone’s owner brought the suit after charges of criminal mischief and wanton endangerment against Mr. Merideth were dismissed in state court. The Federal District Judge felt that the case was more appropriately a state tort case concerning trespass and invasion of privacy. Unfortunately for Mr. Boggs, the drone pilot, Kentucky is one of several states that currently lack enacted legislation concerning Unmanned Aerial Vehicles (UAVs).³ The absence of such legislation makes it difficult for those who use drones, whether for commercial or recreational purposes, as well as those who disapprove of drones, to understand their rights when it comes to where, when, and how they may operate their UAVs.

Colorado and Wyoming are similar to Kentucky. As of June 30, 2017, neither state had legislation governing the use of UAVs beyond that which prohibits the use of drones to look for wildlife to aid hunting⁴, although both states had proposed legislation in 2015. Despite the failure of some state legislatures to provide guidance to those who wish to use UAVs, the FAA has promulgated and enacted rules to govern the use of UAVs, both at the commercial and recreational levels.

For anyone wishing to use UAVs, whether they want to buy one for a child to use as a toy or whether they want to use it for business, it is important to understand how the FAA classifies and regulates different uses. If a person is using a drone just for their own personal use and for fun, it is “recreational.” Anything that is not recreational is commercial; i.e., if someone is using the UAV to make money in some way, the use is commercial.⁵ As one might expect, rules governing the recreational use of UAVs are much more relaxed than those governing commercial use. For recreational users, the FAA requires the following:

• UAVs may not be flown beyond the line of sight of the operator;
• UAVs may not be flown near airports or manned aircraft;
• UAVs cannot be flown near people or stadiums;
• UAVs cannot be flown in a careless or reckless manner
• Prior to flying a UAV within five miles of an airport, a recreational operator must give the airport operator and air traffic control tower prior notice of the planned flight
• Recreational UAVs do not need to be registered.⁶

Rules governing the commercial use of UAVs are much stricter. These include, but are not limited to:

• UAV operators must receive a Remote Pilot Airman Certificate, which requires a knowledge test;
• UAV operators must be at least 16 years old;
• UAV operators must pass TSA vetting;
• UAVs must weigh less than 55 pounds and must be registered if they weigh more than .55 pounds;
• UAVs must pass a preflight safety check;
• UAVS may not be flown beyond the line of sight of the operator;
• UAVs may only be flown during the daytime;
• UAVs must be flown below 400 feet;
• UAVs must be flown below 100 mph;
• UAVs must yield to manned aircraft;
• UAVs may not fly over people or from moving vehicles.⁷

These requirements are stringent and seem, at first glance, to prevent the use of drones in some industries that might benefit the most from their use. For example, a pipeline company using a drone to police its pipeline would be hard pressed to justify the expense of a drone if the operator could never let it out of his or her line of sight; why not just pay a person to drive the pipeline instead? Or, a rafting company that uses UAVs to take photographs of its clientele braving the whitewater would be precluded from flying the drone over the rafts themselves. Luckily, Congress recognized these issues and gave the FAA the authority to waive each requirement for commercial UAV upon approval of a waiver application by the FAA, especially for those industries involved in critical infrastructure, like oil, gas and mining.⁸ Currently, the FAA tries to respond to waiver applications within 90 days of submittal.

Drones are definitely here to stay. In addition to being used by weekend warriors and hobbyists, UAVs are popping up in industries as varied as tourism, oil and gas, mining, and professional sports. The somewhat slow response of state legislatures to regulate the appropriate use of UAVs, whether commercial or recreational, has put users in somewhat of a legal bind. The best approach is to follow FAA guidance to the letter, and, of course, to consult with an attorney to ensure that any operations do not fly in the face of existing regulations.

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¹http://www.jhnewsandguide.com/jackson_hole_daily/local/drone-spooks-refuge-elk/article_0005b7cb-cba9-5d5f-b31b-891f0583fd5f.html

²John David Boggs v. William Merideth, No. 3:16-cv-6 (W.D.Ky at Louisville).

³Kentucky does have proposed legislation in the works, but at the time of this post, no bills have yet been enacted.

⁴See 2 C.C.R. § 406-0:004(C); Wyo. Stat. § 23-2-306.

⁵14 C.F.R. 1.1

⁶https://www.faa.gov/uas/getting_started/registration_deletion;  Taylor v. Huerta, No. 15-1495 (DC Cir. May 19, 2017); FAA Advisory Circular No. 91-57A, “Model Aircraft Operating Standards”, https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_91-57A_Ch_1.pdf.

⁷14 C.F.R. Part 107; FAA Advisory Circular No: 107-2, “Small Unmanned Aircraft Systems”, https://www.faa.gov/uas/media/AC_107-2_AFS-1_Signed.pdf

⁸FAA Extension, Safety, and Security Act of 2016 § 2210; https://www.faa.gov/uas/request_waiver/.