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Drones 101

I've noticed leaves starting to turn color (gasp!), and as much as I wish it weren't true, I know that fall is really coming. With that in mind, I've started my training for this year's Turkey Trot, a 5-mile race on Thanksgiving morning down Buffalo's main drag, Delaware Ave.

Last year, as I prepared to start my annual sprint downtown, I noticed a drone hovering over the starting line. "That's cool," I thought, as I battled my way to the finish. (My favorite moment of the race occurred about midway through when I saw the back of a woman's shirt that read "If you're behind me, you didn't train either." Right on, Sister! But I digress. )

Since then, I've seen bits and pieces of news about drone use from a variety of sources for a diversity of reasons. While I'm hardly an expert in this field (If you're looking for someone who is, try Joe Hanna at Goldberg Segalla, [email protected]), it seemed timely and certainly relevant to provide a high-level overview of the issue, as these devices and the technology they rely upon become increasingly present for recreational, public safety and commercial use.

The website has called 2015 "the year of the drone." Earlier this year, an Australian drone manufacturer, who had secured all of the requisite approvals from the FAA, test-delivered 24 packages totaling 30 pounds of medical supplies from Lonesome Pine Airport to a rural health clinic at the Wise County (VA) Fairgrounds in three separate 3-minute trips. As has been well-publicized, Amazon was given FAA approval to test drones for package delivery, although truthfully, these tests make a colleague of mine in the Seattle area very, very nervous. Facebook and Google have also been testing deliveries as well. Other entities that are potential and current (but unlicensed) drone users may be realtors who want to "see" a property from above, or even public safety officials who see HUGE advantages in identifying trouble spots from above without placing human lives at risk in the air.

Particularly because enterprises, from the neighborhood realtor to large corporate and governmental entities, are beginning to use drones to gather information in what's perceived to be a cost effective and efficient way, as well as to deliver merchandise, it's critical that those who are deploying drones have at least a primer on what the law requires. It's not simply a question of buying a drone from Amazon, and promptly putting it to work for your enterprise...Whoa Nellie!

The Federal Aviation Administration is the primary regulator of drones, whose more formal name could be an Unmanned Aircraft System (UAS), Unmanned Aerial Vehicle (UAV), or just UA. For purposes of clarification, this piece has nothing to do with the devices that are used for military activities.

Definitions are important. Under 49 U.S.C. 40102(a)(6), a United States Code document outlining definitions related to transportation, an "aircraft" is defined as "any contrivance invented, used, or designed to navigate, or fly in, the air." And an "unmanned aircraft" is defined as an "aircraft that is operated without the possibility of direct human intervention from within or on the aircraft." ( P.L. 112-95, Section 331(8)). Finally, one more bit of boilerplate from 14 C.F.R. Section 91.13(a), "No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another."

The FAA has identified 3 primary classifications for UASs, or drones: model, public, and civil. The FAA does not regulate aircraft in the model category so long as:

The important distinction in first item is that if a device is flown for any commercial purpose, the FAA has authority to regulate such operations -- and takes it. That's any commercial purpose!

There are two other important items to consider when using a drone for non-commercial purposes. The operator must maintain visual line of sight with the device from a fixed location (the back of a car is unacceptable, and, not kidding, there has not yet been a ruling about whether an operator sitting on a horse is acceptable for maintaining line of sight from the FAA's perspective, but the question has been raised). The second is that a model device cannot go more than 400 feet above the ground. The height restriction is simply based on the FAA's rulings. Municipalities may enforce lower flight limits. (For more information on rules for flying model aircraft, see the AMA Safety Code.)

The non-aeronautical issues that the presence of drones creates may be more "cocktail party worthy," but certainly no less, if not more, important than those of an aeronautical nature. Included in these issues are privacy rights, data collection, property rights, law enforcement uses and public safety.

As Edward Snowden (remember him?) made painfully clear to most Americans, the federal government has been keeping tabs on many citizens, much to the dismay of civil libertarians and others who are concerned that our privacy as individuals has been severely -- and potentially permanently -- compromised. The presence of drones in our daily lives (not to mention in our own backyards) certainly creates legal and personal challenges. While your neighbor's drone may violate your airspace and be generally annoying, it is a federal crime to shoot down a drone. (Remember, it is an aircraft, and for all sorts of good reasons, shooting down any aircraft is a bad move, any which way you look at it).

While the issues of property rights and nuisance caused by low flying drones are complex and important, in the interest of brevity, I'll leave those topics to the experts. However, it is critical to at least mention the issues of both law enforcement drone usage and the potential for interference with law enforcement operations by well-meaning (let's hope), but ill-informed, drone operators.

There have been several recently publicized incidents where drones have either interfered with, or almost interfered with, helicopters that were transporting critically ill or injured patients for immediate medical care. Within the past few weeks, a drone in California got in the way of a firefighting helicopter. Disaster was averted in that scenario, but not by much of a margin.

In these cases, because the drones were operating beyond the allowable altitude, and because they may not have been operated by someone complying with existing rules or using good judgment, public safety was threatened. The issue is with drone operators; regardless of how enamored with the technology operators are and what beneficial information can be captured through using one, operators simply must know how the devices should and should not be used. During this year's U.S. Open Tennis Tournament, one crashed in what had been a crowded stadium. No one was hurt, but it's not hard to imagine how the outcome could have been much worse.

Recreational users who have no interest in financial gain or commercial advantage have to meet a lower standard to comply with existing rules and good practice than do those who are using drones for anything that could even remotely be argued was for commercial gain. Drones offer access to an incredible array of information. But like any other sexy newish technology available in the open marketplace, they must be used with care.

[Author's note: As I put the finishing touches on this piece, I learned that on September 10, the House of Representatives will hold hearings to consider the safety and privacy issues raised by the presence of drones. There is Congressional interest in drone legislation that runs the gamut from insisting that manufacturers include collision avoidance technology to using "geo-fences" to keep drones clear from airports and other restricted areas. The recent drone crash at the U.S. Open, particularly when combined with the recent news that drones have interfered with firefighting and other public safety activities during this very busy fire season, has raised the profile of this technology to new heights (pardon the pun).]