DRONES: Landing In Your Community Soon

Introduction:

“Secret Service Arrests Man After Drone Flies Near White House,” NYTimes, Michael S. Schmidt, May 14, 2015. “Government Employee Piloted Drone That Crashed at the White House,” David Jackson and Bart Jansen, USA TODAY, Jan. 26, 2015. “A passenger jet approaching LaGuardia airport in New York was forced to swerve at 2,700 feet after it nearly collided with a drone.” (Telegraph, David Lawler, May 29, 2015, telegraph.co.uk/news)

These are just a few of the increasing number of headlines involving drones. The Washington Post reports that “since June 1, commercial airlines, private pilots and air-traffic controllers have alerted the FAA to 25 episodes in which small drones came within a few seconds or a few feet of crashing into much larger aircraft, the records show.” (Near-Collisions Between Drones, Airliners Surge, New FAA Reports Show, Craig Whitlock, Washingtonpost.com, Nov. 26, 2014)

Drones are not new. In various places around the world, drones have been in use for several years. They are being used to deliver packages, spray fertilizer and pesticides on crops, take images of real estate properties and for mapping purposes, searches, mining, law enforcement, and much more.  In Illinois the state police are now using drones to photograph traffic accident sites in order to clear traffic more quickly.  A spokesman for the State Police Depart said that they were “intentionally avoiding the word ‘drone’ because ‘it carries the perception of pre-programmed or automatic flight patterns and random, indiscriminate collection of images and information.’” (Illinois State Police Will Fly “Unmanned Aircraft” Not Drones, arstechnica.com/tech-policy/2015/05/).

According to Fortune online, the drone industry is currently a 2.5 billion dollar a year industry. Experts are predicting that the UA industry will grow to 25 billion dollars in just the next five years. The FAA estimates that within the next 20 years there will be 30,000 unmanned aircraft (drones) in operation around the country. The price of commercial drones is already dropping to very affordable rates. The Wall Street Journal reports that “SZ DJI Technology Co. has become the world’s biggest consumer drone maker by revenue, selling thousands of its 2.8-pound, square-foot devices (DJI Phantoms) for about $1,000 each . . . The DJI Phantom series is like the Model T.” (Who Builds the World’s Most Popular Drones? Jack Nicas and Colum Murphy, wsj.com, Nov. 10, 2014)

Regulations:

This new industry is also bringing with it a host of questions and disputes that will need to be regulated and litigated as federal, state, and local governments work to reconcile the growing use of drones by both government and private industries with the interests and responsibilities to maintain the health, safety, and privacy of citizens and residents.

The FAA defines an Unmanned Aircraft (UA) as the flying portion of an Unmanned Aircraft System (UAS). The system includes the control station, data links, telemetry, communications and navigation equipment, etc.  There are three different types of UAS in operation.

  1. Public (Government)
  2. Civil (Non Government), and
  3. Model Aircraft (hobby or recreation)             (https://www.faa.gov/uas)

How can drones be used? Where and when can they fly? How are they to be controlled?  Where should launching and landing areas be located?  What are the “rules of the road?  How high or low can they fly?  How loud can they be?  What information can they collect and what are the storage rules for that information?  These are just a few of the questions that require answers. But given the complexity of the issues involved and the creativity of the marketplace, it is clear that these answers cannot all come from the same single source.

In November of 2014, the National Transportation Safety Board held (in Huerta FAA Administrator V. Pirker, CP-217) that drones are “aircraft” as defined under federal statutes and regulations.  As such, Federal Aircraft Regulation 91.13 applies to drones. This regulation states that “no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”  Other than this one ruling and regulation, there appears to be no federal statute that applies to drones, which means the technology and market place is out pacing the federal government’s ability to keep pace.

Only about half the states have considered legislation regarding the operation of drones and only about ten had enacted some sort of legislation by the end of 2014.  Illinois was one of those. It enacted 725 ILCS 167, the “Freed from From Drone Surveillance Act.” This Act regulates the use of drones in law enforcement by regulating how and when they can be used and how long the data collected by the drones can be stored.

Chief among the concerns is the right of privacy.  When it comes to privacy there are three areas of law that can act as a foundation for drone regulation.

  1. Private Privacy Laws – non-governmental intrusions of trespass (e.g., flying into people’s backyards and snooping around);
  2. State privacy Laws – “Peeping Tom” laws, the recording of images, and privacy torts (e.g., using a drone to look into homes and record non public images);
  3. Civil and Criminal Laws that specifically block unwanted aerial surveillance from privately owned manned or unmanned aircraft. (e.g., using drones to conduct surveillance in places where people have a “reasonable expectation of privacy”)

(The Future of Drones: Sky-High Hopes vs. Regulatory Realities, Denise Chow, livescience.com, April, 14, 2014)

Traditional Local Government Tools:

“There have been relatively few legislative proposals to regulate the domestic use of unmanned aircraft systems (UAS) at the county or municipal levels. Almost all of the existing proposals have been drafted specifically to address privacy concerns regarding the use of UAS by public employees, and most of the existing proposals simply ban UAS from airspace above the regulated locality. Notably, the cities of Charlottesville, VA and St. Bonifacius, MN have each passed resolutions restricting the use of UAS.” (Domesticating the Drone, INSCT, Syracuse University, http://uavs.insct.org/local-regulation)  The City of Evanston Illinois likewise passed resolution 27-R-13 placing a moratorium on the use of unregulated drone technology within the city limits.

But local governments can and will do more than simply bar the use of drones within their jurisdictions.  They have powers to regulate certain aspects of the industry in order to insure the health, safety, and privacy of their residents and any prospective drone entrepreneur out there will need to be aware of the developing regulations at the federal, state, and local level.

Local governments can create drone-friendly zones to encourage commercial activity along those lines.

Local governments can regulate the use of drones in at least three ways:

  1. They can regulate their own municipal use.
  2. They can regulate the private use of drones and, where violations occur, prosecute violators in order to protect privacy and abate nuisance.
  3. Municipalities can also enact zoning ordinances in order to regulate businesses within their jurisdiction that operate drones, providing for and restricting where drones may be launched, landed, and operated.
  4. A municipality can regulate and issue licenses for occupations and business for the sake of fire protection and public health and safety. (Father Basil’s Lodge, Inc. v. Chicago, 393 Ill. 246, 253-254, 1946)

Conclusion:

In light of the many unresolved legal issues, some municipalities have begun to pass their own ordinances in order to protect the health, safety, privacy, and quality of life of their residents.  The industry and technology are advancing quickly. If local governments are going to benefit from this new industry and head off problems that pose a threat to the health, safety, and privacy of its residents, local governments need to enact reasonable regulations before the first commercial unmanned aircraft takes off and lands within the city limits.

On the other side of the issue, anyone seeking to start a drone business will need expert legal advice to help minimize risk and navigate the evolving regulatory landscape. Otherwise their new business venture may never get off the ground.

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