In the first of its kind, we now have a decision rendered on a drone case in a Supreme Court. Granted, this case was in the Michigan Supreme Court, not the U.S. Supreme Court, but it is the first drone case to hit any state Supreme Court. Even better, it was a win for drones!!!
The Court of Appeals had a scathing opinion of drone operations
You may have heard of the Long Lake Township v Maxon case. The township hired a drone operator to take aerial images of the defendant’s property for suspected violation of junkyard ordinances. The defendant wished to have the drone images tossed from evidence due to lack of a warrant and made claims against the use of drones. Where his arguments didn’t prevail he appealed to the Court of Appeals and found a judge favorable to his argument. The Court of Appeals had a scathing opinion of drone operations and in deciding the case set a precedent that would have impacted drone operators across the State of Michigan.
An appeal to the Michigan State Supreme Court was the only way to undo the bad precedent. A handful of drone advocates made pleas and sought to support the Township’s legal counsel to press the Township board to make the appeal. Long Lake Township inevitably chose to appeal and retained additional legal counsel for the Supreme Court filing.
In what could be considered a somewhat surprising move, the Michigan State Supreme Court agreed to hear the case and had set a date for briefs and oral arguments. Drone operators made haste to ask state and national organizations to file amicus briefs on behalf of the Long Lake Township position that drone images were lawful. Then came the wait…
In a notice submitted late last week, the Michigan State Supreme Court cancelled oral arguments and remanded the case back to the Court of Appeals, vacating the ruling and precedent of the Court of Appeals. The drone images are now once again lawful evidence thanks to this ruling.
Currently there are no legal drone regulations in Oregon state parks. Oregon is like most states in that regard allowing drones to coexist with all other outdoor activities. It has previously viewed that drones are just another recreational item like a kite or hang glider. But suddenly the Oregon Parks and Recreation Department (OPRD) has picked up a virus – regulation for the sake of regulation – and is currently following the legal process of Open Rulemaking to place bans upon drones being launched, landed, or operated from unspecified areas in Oregon state parks.
So, what changed? Why now chase imposing drone regulations? And what can YOU do to help push back on their attempt to impose unnecessary ordinance?
“The Oregon Parks and Recreation Department cannot adopt rules related to drones unless the state legislature gives it permission to do so. The earliest that permission could come is 2021, and then there would be an open, public discussion about what those rules should be.”
OPRD had previously wanted to impose drone regulations. Their leadership had considered drones a possible annoyance to other park visitors, potential disturbance to some nesting birds, disruption to pristine natural areas, and maybe even a hazard to rock climbers. As such OPRD did put in place a set of illegal ordinances that banned drone use from two specific state parks. These ordinances were illegal in that they were imposed without following the State mandated process for proposing new ordinances which includes requesting Public Comment on the intent and language of the proposed ordinances and OPRD was also handcuffed from doing so without express authorization by the Oregon legislature.
Fast forward to current day and we now have Oregon’s lawmakers having passed a bill authorizing OPRD to consider regulations and OPRD having rulemaking committees to craft the proposed regulations for public comment. And right this moment the proposed rule is posted and available for public comment.
The majority of public comments to this point have NOT been favorable to the drone community. The most popular comments currently offer up that drones are either 1. Too Noisy, 2. A danger to predator birds that will either get hurt by the drones or scared off from their nests, or 3. Are an affront to privacy. There is even a rulemaking committee member that has offered up that drones will be the cause of horses breaking their necks at being spooked by the sound of a drone. This is the type of perception we in the drone community have been fighting since the inception of the hobby and industry.
The reality is that to push back on these regulations drone operators are best served by fully pushing back against regulation and offering up truth to counter the fallacies about noise, scaring birds, invading privacy in public, and, of course, noting that no horses were harmed in the making of this industry.
But let me go one bit deeper.
To prove the point that this rulemaking was nothing more that creating regulation for the sake of regulation a Freedom Of Information Act (FOIA) request was made to the OPRD seeking the following:
“Please provide all records of OPRD incidents or encounters where a drone was believed to have been used to harass, disturb, pursue, or injure wildlife. Please also provide a count of incidents where the OPRD was informed of personal injuries within Oregon state parks or beaches from the use of or by a drone” from 9/1/2016 to 2/18/2022.
One would expect that if drones were such an enormous problem the FOIA request would produce copious amounts of records. Almost a month later the following reply came from OPRD:
“A preliminary search has turned up no documents matching this request”
That is not quite the demonstratible need now is it? Could it be something else was driving this horse?
One day after receiving the “no documents matching this request” reply another email arrived from OPRD that offered up an incident with significant injuries that has a very interesting story to go along with it. If you’ve read this far, don’t stop now, this is just getting good.
In July of 2021 a visitor to Silver Falls State Park flew a DJI Mavic Mini drone to capture footage of the park’s namesake waterfall. The visitor had previously flown the drone in other Oregon parks and found everyone he encountered to be enamored with the drone and the perspective it could offer. There is Silver Falls he encountered no one during the flight, no one to complain. It was just he and his daughter enjoying a hike and the views that only the drone could capture. But with a bit too much eye to the screen and not enough to the tree branches near the flight path, the drone clipped the tip of a branch and fell to the ground.
The drone landed in a tuft of tall grass on the other side of a trail’s safety guard rail. Thinking he could safely retrieve the drone, the operator crossed over the railing to be able to reach and grab the drone. By his own report, he’d very well have done the same attempt if it had been his phone falling out of his pocket or a football inadvertently landing there – it didn’t matter to him that it was just a drone. Inevitably the worst happened. Reaching for the drone he slipped. The fall to the next flat ledge below was approximately 15 feet. Landing there he broke both ankles and leg only to fall backwards into yet another abyss. 35 feet later the drone operator landed on his back with only his backpack to cushion the fall. Vertebrae were compacted, three ribs broken, and he was unable to right himself to walk due to the leg injuries. His daughter phoned for assistance.
Multiple agencies arrived for rendering aid and inevitably an ATV was deployed to retrieve the drone operator from his precarious place on a steep slope clinging to roots to keep from falling further. Even more unfortunately a duffle of important rescue equipment had been forgotten by the ATV at the top of the ridge. Dark and looking to make the most expedient rescue one of the rescuers tossed down the bag. It’s landing point was further disaster as it hit the drone operator further injuring him. His pelvis shattered. It also injured one of the rescuers that had travelled down the embankment to assist.
Despite all the misfortune, the drone operator did get yet another flight in that evening – though it was one he wasn’t at the controls for. He was transported by ambulance to a helicopter for evacuation from the park and spent the next 3 months in the hospital recovering from his injuries.
It needs to be made clear that he doesn’t look at the drone as the source of his injuries, rather just doing something innocently dumb. And again, to him it wouldn’t have mattered if it were a drone, the latest iPhone, or even just simply a football. He doesn’t see that as excuse for Oregon attempting to impose regulations. His accident wasn’t related to drone operation and the drone wasn’t a danger or bother to anyone. Moreover, starting to finally be able to walk again, he’s looking forward to returning to work and at some point will buy another drone as he greatly enjoys the views they can get and loves being able to capture the incredible scenery throughout Oregon.
If anything is curious, the timing of OPRD’s incident ticket comes to the forefront.While the accident took place in July of 2021, OPRD didn’t initiate an incident ticket until January 5th, 2022 – almost 6 months later! The January date happens to coincide with legal action spinning up due to the unwise tossing of the equipment bag and resulting injuries.
This isn’t to say that OPRD is using this drone operator’s misfortune to push forward an anti-drone agenda. Silver Falls State Park where this incident took place is one of the locations that the OPRD rulemaking committee has specifically talked about prohibiting drones from launching in certain areas (the falls being one of those no drone zones). It is unknown what, if any, legal damages will come from the events surrounding that set of mistakes.
Neither the FAA or Department of Justice has, to date, made any attempt to prosecute an individual for the destruction of a drone using 18 USC 32. There have been plenty of instances of drones shot down and drone operators harassed and even physically assaulted. Yet the FAA has turned a blind eye towards using a very basic regulation written to ensure the safety of pilots and their aircraft. Seemingly then the only opportunity for drone operators faced with the destruction of their aircraft has been to engage in civil court claims with hopes of restitution. Cody Coppola recently encountered this very scenario when his drone was knocked out of the air due a basketball purposefully thrown at the aircraft with the intent to destroy it.
Coppola got into the hobby of drones about 4 years ago. He saved up to buy a Mavic Pro and had been enjoying flights as a hobbyist. The doomed flight was innocent enough. Looking to practice smooth video on manual orbits, Coppola found a house up for sale that was nearby and vacant. He made a request with the realtor if they and the owner wouldn’t mind him flying a drone around the place. He was granted permission to be on the property and began slow sweeping turns practicing with video settings and trying to improve muscle memory on the sticks. While standing a few hundred feet away in full sight of the drone, Coppola maneuvered the drone down and in towards the front entryway of the vacant home when the drone was abruptly struck and fell to the concrete sidewalk and was severely damaged. Video of the event here: https://youtu.be/vMlGo_HR5ag
The drone’s assailant was Michael Mannings, a neighbor across the street from the vacant home. Mannings suggested the drone flew over his house and near his kids who were playing outside. The drone (as is apparent in the video) flew over the street and was knocked from the sky while directly over the property of the vacant house being filmed. And rather than flying near Mannings’ children, it was Mannings’ son who made multiple attempts to down the drone before finally connected on the fatal throw. There was a confrontation thereafter between the two men. Mannings ranted at Coppola about the drone and Coppolas ultimately contacted the local police department and a report was filed. No action by officers was undertaken. Local police and local prosecutors have no jurisdiction to enforce FAA regulations, but local law enforcement also did not cite Mannings for destruction of property.
This left Coppola with a damaged drone – a rather expensive paperweight, and few options. Having neither the FAA nor DOJ take any previous interest in going after assailants who have shot down drones, there was little recourse. The one option available that remained was small claims court. Coppola was fortunate to know who had damaged the drone and was armed with a police report and Manning’s admission of the event. But Coppola was also rightly worried about the proceeding. Small claims court is never a sure bet. In addition to the actual loss of the drone, he could have had to eat the filing fees or any attorney fees if legal assistance was required. That, and a judge’s ruling for restitution, might still not be paid and invoke even further expenses trying to collect.
Day in court…
Getting to court also takes time. It took months to finally get a hearing date. But when the moment arrived, Coppola made the most of it. Having video of the event and being able to slow the footage to give a frame-by-frame accounting of the basketball being thrown by Mannings’ son was a hard piece of evidence for the defendant to overcome. It was even more so damning given that Manning (under oath) was claiming he had been the one to throw the ball, when video clearly pinpointed that his son was the one to do so. Coppola successfully argued that Mannings did not have a right to destroy someone’s personal property out of dislike or perceived trespass. He made it clear with the analogy that you can’t break a car’s window just because it is parked in front of your house and you don’t want it there. The evidence and argument provided legal reason for a favorable judgement. It just isn’t legal to be a vigilante and destroy another’s property based on your perceived rights.
Inevitably it took another two weeks for the judge’s ruling to be delivered. Mannings was ordered to pay roughly $1300 as restitution for the destroyed drone. He would do so in two installment payments over the course of the following month. Overall, it was roughly a year’s time from the incident to final resolution with awarded money in hand. Coppola was then able to use the funds to replace the Mavic Pro and now flies the Mavic 2 Pro after adding additional funds of his own for the replacement.
While this case did have a positive outcome of restitution paid that inevitably replaced the damaged drone, this type of incident isn’t going away any time soon without more serious consideration by the FAA and DOJ. We still do not have a precedent of FAA enforcement of 18 USC 32 or the DOJ prosecuting anyone for downing of our drones. Until we do would be shooters feel emboldened that they can make their own interpretation on trespass or legality of flight and knock our drones from the sky. Coppola reflected on such too by offering, “Not everyone thinks your drone is cool; not everyone is on the same board as you when it comes to drone stuff.” The misfortune is that his statement seems to readily apply to the FAA and DOJ as they pass over cases of drone shootings and threats upon drone operators.
What to do if it happens to you…
Coppola took the right steps in this incident.
Involving local law enforcement is a must. Where there is a dispute over property damage, trespass, or aggression, it is a good idea to engage the police. They can intervene to de-escalate, investigate, document the incident and take statements. The report they write can be valuable evidence in court and their peacemaking efforts can reduce the further chance of harm.
Retaining evidence is key. Having video and/or still images can be game changing for proving your side of the argument. Flight logs too can be extremely beneficial. Sometimes these items are even more valuable than witness testimony. Make sure to hang on to these materials and download copies and backup the files to ensure for safe keeping in the event you need to use them to either defend yourself or aid in your case against another party.
Knowing the regulations for flight as well as any local regulations are highly useful. Police aren’t often trained in drone regulations. Providing them with details like 18 USC 32 that makes it a Federal offense to damage or destroy an aircraft (or even threaten to do so) may have them take the crime more seriously. And if the drone was shot down, questioning them as to whether or not it is lawful to discharge a firearm at that location and in such a manner may trigger them to criminally cite the shooter.
Filing claim in a small claims court can seem daunting, but it is essential and mostly straightforward. Prepare with organizing your evidence, write out the full details of the incident as you remember it – be very detailed. Prepare yourself for the defendant’s attempts to discredit your evidence. Consult an attorney as needed.
Today there were protests at state capitol buildings around the nation. As protests draw crowds, they inevitably attract drone pilots looking to capture the aerial view of the situation. Thus, it was inevitable that a drone would be launched to see the sights from above. That, per se, isn’t much of a problem so long as the operators are following FAA regulations. But what happens when they don’t? Law enforcement agencies pressured Congress and the FAA to get some type of means in place to identify drones and their operators such that there would be opportunity to identify bad actors and take action. Obviously then a volatile protest environment where violence had been threatened seems like the exact situation for which Remote ID was intended, right?
The protest at the Michigan Capitol Building had a plethora of State Police, local officers, and National Guard on had to maintain order. Armored vehicles blocked the streets. In the skies above the State Police helicopter circled for hours monitoring the gathering. Snow was falling and visibility was just under 2 miles. The location also sits squarely within Class C airspace straddling a 200’ and 300’ LAANC grid. So, when a drone launched it was immediately questionable. As the drone rose up over the grounds of the capital to take in the scene the phone rang. The State Police were inquiring of the Part 107 pilots who coordinated with them if the drone was theirs. The answer was, “No.”
The drone, a Mavic Mini, was being flown by a newbie pilot. Being the Mini it was under the 0.55 lbs threshold for registration. And being a limited recreational flyer the operator wasn’t technically bound to the 3 mile visibility requirement that is a hard regulation in Part 107, though the broad careless and reckless restriction could be utilized. Obviously too the flight directly over persons also poses great difficulty in proving – sure, it can be perceived that the drone might have been over persons, but that is incredibly hard to prove and very well could have been offset and legal. The one issue that was very much a problem was airspace authorization. This individual didn’t have it, didn’t know what it was or that he needed it, and wasn’t interested in getting into the know.
Of course, Remote ID isn’t yet in place, but let’s assume it had been and test the scenario. The drone being under-weight would fall under both not needing registration and not requiring Remote ID broadcast. That would mean that, just like today, the aircraft would be visible in the sky, but would not be providing any information on the pilot, the pilot’s location, or offer any details about the pilot’s intentions via Remote ID when it does go into effect. Just like today the pilot could also have skirted LAANC authorization and been flying directly over persons while operating in visibility under 3 miles with a police helicopter circling about. Could the pilot be found and confronted? Potentially, yes, but likely, no. The operator was found today, but not by police and maybe that’s fortunate as the officers who were there didn’t have any understanding of airspace requirements or other FAA regulations and aren’t likely to either when Remote ID does go live.
So, the question becomes, what is the answer? How do we ensure that drone operators know and follow the regulations? Moreover how can threats be discerned and separate those individuals from the pilots legally operating who have no ill intent? There’s a great deal of debate over how to bring drone operators into the fold, but one thing is very clear – new regulation hasn’t done so previously and isn’t doing it now. It likely won’t do so in the future either. The latter issue of discerning intent is quite simple – you can’t, not with Remote ID, not with LAANC requests or lack of LAANC requests, and you can’t with just seeing a drone in the sky even when it is flying at a volatile protest. The question then remains unanswered.
What we do know is that without self-policing by the drone community, the problems will continue and will further solidify legislators is moving the needle towards more draconian legislation that could clamp down on the drone industry. There was already some finger wagging language in the 2018 FAA Modernization and Reform Act where legislators specifically added a “sense of Congress” clause that wasn’t keen on our community. And with the number of state and local criminal court cases starting to ramp up on drone operators it is becoming clear that as a community we’d better hear the message and take action.
After all these years you made the “Nice” list and Santa brought you a brand new drone, Congratulations!!! Seriously, give Santa a hug, high five Dad, kiss that adorable spouse, or pat yourself on the back (yes, we know you wrapped it and tucked it under the tree for a “surprise” even though you shopped long and hard to pick out just the right one for yourself). You are now one of the lucky hundreds of thousands getting a drone for the first time and we welcome you into the community of flyers. So, let’s help welcome you in a way that might keep you from watching that drone crash, fly away, or land you in hot water.
There are a few key things you need to know, rules to follows, and best practices to employ that will help you as you get started with this hobby.
Only fly on a freshly charged battery.
While you’ve excitedly unwrapped and unboxed this flying camera, a first thing to get at is the battery and charger. Plug in and let the battery fully charge prior to each flight. Flying on a battery fresh out of the packaging is an absolutely NO, and flying on a battery that has sat around a couple of days is equally as bad.
The owner’s manual isn’t poisonous.
I get it, we are intuitive creatures and tend to be able to figure things out on our own. But having seen years worse of videos of first flights abruptly ending with a smack of the wall, the catch of tree branches, the next door neighbor’s sedan, the pond out back, and the disappearing act far beyond the tree-line, I can tell you that the owner’s manual does have some key elements. Most drones will have compass and/or IMU calibrations to perform, need binding between the controller and the drone itself, and show the correct orientation in which to install the props. Take some time and do even a quick read.
It’s an aircraft – register it.
Congress in their infinite wisdom decided that it was important to have all drones weighing over 0.55 pounds (two sticks of butter) be registered with the FAA. We can debate all day about the importance, stupidity, nanny state, or value of this registration, but fact is that just like license plates are required for motorcycles so too are registration numbers required for drones. The cost is just $5.00 and covers you for three years. https://faadronezone.faa.gov/#/ Make sure to put the registration number on the outside of the drone – consider it a badge of honor (even if it is a disgrace that we have to but a license plate on a toy).
Don’t decorate the tree.
Sure, a nicely decorated tree with lights and ornaments is lovely, but when the lights and ornaments are your drone 50’ up in the Oak out back, well, it is more of an eyesore and will wretch at your heart. Instead, being new to drones or even it just being a new drone’s first flights please consider finding a wide open field or park void of trees or other aerial obstacles (electric wires, phone lines, etc.) in order to make maiden voyages.
Santa gets permission to fly and you need it too.
Yes, each year the FAA grants Santa airspace authorization to get his sleigh rooftop to rooftop. And while you don’t want to land on a rooftop or decorate the tree, you do need to get permission to fly your new aircraft in controlled airspace. Areas surrounding airports often have controlled airspace where authorization is a must in order to fly. You can get this authorization nearly instantly using an app on your phone. Kittyhawk or AirMap are the two most widely used. It is simple and quick and MUST be done before each flight in controlled airspace.
A watchful eye is needed to fly.
We share the sky with people who fly and that means needing to stay out of the way of passing planes and helicopters. As a result, the FAA requires that you must keep the drone within your visual line of sight at all times. If you cannot see the drone, know which direction it is facing or moving, then you are a risk to low flying airplanes and helicopters or the passing sleigh pulled by reindeer. So, you absolutely need to stay under 400’ and keep the drone within sight. If you want to see something a mile away from the air, drive closer and launch from there instead.
Hail hurts and drones are heavier.
Want to get hit by softball sized hail??? Of course not. Your new drone has the ability to do as much or even more damage falling from the sky. Thus, the requirement (FAA regulation) is that you MUST NOT ever fly over people and that includes people in moving vehicles. Sure, a Cessna or 747 can traverse the skies and not have to worry about being directly over people or cars on the ground, but our drones don’t yet have the respect to do the same. So, if you want a shot of cars moving along a roadway, fly off to the side of the street and not over the top of them. We don’t need a “Granddad got dropped on by a droner” being the new “Grandma got run over by a reindeer” headline.
Sink or swim, the choice is up to you.
Did you think this was about water? Oops, well, sort of. Drop your drone in the drink and it is gone forever, but if you buy a bit of insurance, it will be as if your drone knows how to swim. Yes, you can get insurance to cover your drone. Lost, stolen, or damaged can be fully covered by hull insurance or a Personal Articles Protection Policy. State Farm offers it for about $60 per year. Good idea to consider when you figure a fair number of new drones do become tree ornaments from those who don’t read or heed this article. You should even consider getting some liability insurance as your friendly neighbor isn’t going to be so happy if your drone ends up cracking a hole in their roof tile from a tumble in the sky.
And once again, welcome to the club. You’ll find the community of drone operators is almost always excited to fly together and share tips and secrets. A great number of social media groups are ready for your involvement. Here’s a few to consider:
We are in familiar territory once again as drones are sure to be a hot item as gifts this Christmas season. One can only expect that we’ll see an influx of new drone users take to the skies after the annual visit from Santa Claus. Five years ago, in 2015, the FAA determined that it would be incredibly important to require drones to be registered and rolled out a bribe offering free registration through February of 2016 else have to pay $5.00 for registration thereafter. Many did register at that time and since then industry leaders have tried diligently to spread the word that drones over 0.55 lbs (250 grams) must be registered. But now we are faced with registrations expiring and what we are seeing is suggests that drone operators may not be taking registrations as seriously any longer.
The FAA established drone registrations to lapse every 3 years. All drone operators (both Part 107 and hobbyists – now call limited recreational flyers) are to required to maintain valid registrations for their drones. Hobbyists actually got somewhat of a reprieve when a Federal court judge tossed out the registration requirement back in May of 2017. But while the Taylor v. Huerta case (as written about in this previous article) extended all hobbyist drone registrations to December 12th, 2020, the same cannot be said of Part 107 drone registrations. Part 107 regulations went into effect on August 29th, 2016 and included drone registration mandates. Thus, the first Part 107 operators who registered their drones saw expirations on their registrations throughout the last portion of last year and all throughout this year as well. Any Part 107 operator who started up their drone operations prior to this date three years ago has seen their drone registration expire already. Yet the FAA reports that only 25% of Part 107 registrations have been renewed. 75% non-compliance is a big number.
What does this mean?
Clearly, we know that the 25% who did renew remain compliant with §91.203(a)(2). But the 75% non-compliance becomes a bit more vague. As Part 107 requires each drone to be individually registered ($5.00 for each and every drone in the operator’s fleet) there is likelihood that the operators just aren’t keeping track of multiple expiration dates. For example, XYZ Drones has 5 different drones each purchased and registered 6 months apart and so it is conceivable that the first few drones in their fleet have expired registrations while the last couple are still valid. They may just not be tracking the expiration dates routinely and may notice the lapsed dates when they register their next new drone. After all, recurrent testing is every 2 years and registration every 3 years, so there isn’t a good alignment between the two. But the lack of renewal could also be yet another scenario of lapse by the way of attrition. In this example XYZ Drones may have had three drones back in late 2016 or early 2019 that were registered but are now no longer in service – i.e. they were crashed and disposed of or depreciated and either mothballed or sold off. In that situation there is legitimately not going to be a renewal and the FAA would have no way to account for it in the examination of expired renewals that landed them at the 75% non-compliance rate. But it is the third scenario that is more interesting – is there a trend that handing over $5.00 every three years for each and every drone seen as overreach and is being ignored?
We know from FAA enforcement actions that very few operators have ever been cited for failing to register their drone. In fact, to my knowledge at this time, it has not yet happened to a Part 107 certified operator. But there is real challenge for the FAA to do such anyway given that they do not have (and nor will they ever) the ability to be on every street corner policing drone operations. They are instead fully reliant upon local law enforcement to keep watch over any perceived illegal drone activity. And frankly most police departments have very little training on UAS regulations as well as having much more significant duties to attend to than chasing down Phantoms. Even if the officers were to engage a Part 107 operator flying a drone that had an expired registration what are the chances that they are only interested in seeing the Part 107 operator’s certificate which has no expiration date on it and leaving it at that? So we cannot ignore the real possibility that Part 107 operators just aren’t renewing registrations as there just isn’t enforcement or value and is more of an administrative hassle (and cost) that can be put aside with very low risk.
Am I in any way condoning ignoring the registration requirement? Absolutely not, don’t misconstrue the discussion here in that way. With Remote ID still slated for finalization by year’s end there are hints that registration is tied to the required signals that are proposed to help law enforcement determine friend or foe types of operations and pinpoint the identify of rogue operators. Yet we must consider that this 75% non-compliance could also be cracks in the support of the FAA’s UAS regulations, especially when the UAS community was resoundingly against certain provisions in the Remote ID NPRM that elicited over 55,000 public comments.
Two things are very much known in this evaluation of drone registration:
1. Any hobbyists who registered their drone prior to December 12th, 2017 will see their drone registration expire for the very first time on December 12th, 2020 – that’s less than two weeks away. Only a very small percentage of hobbyists have renewed at this point as well.
2. Any Part 107 operator who registered three years prior to yesterday’s date and hasn’t yet renewed is non-compliant.
If you are interested in renewing your drone registration or even just curious about when it expired or when it is set to expire, you can find the information by login to your account on the FAA DroneZone. If you, by chance, utilized a 3rd party to register your drone (where you paid more than $5 to get your drone registration) you may have to contact them to provide you with your FAA DroneZone login information. I highly recommend NOT using a 3rd party for drone registration. Stick to the FAA site.
All too often I see comments from drone operators expressing the DJI’s geofence prevents them from launching in No Fly Zone or restricted airspace. They have somehow seemingly bought into the idea that DJI’s geofence tells them when they are in controlled airspace or if the location is within the time period of a TFR (Temporary Flight Restriction). It gets tiresome as they incorrectly argue what they understand to be correct and trying to correctly point them to the FAA’s Arcgis map (https://www.arcgis.com/apps/webappviewer/index.html) and TFR listings. So today I wanted to give definitive proof. Here’s my admission: “As President Donald Trump spoke just a mere 5 miles away I flew a DJI drone during the Presidential TFR without the drone preventing take-off.”
Yes, that’s right, I flew in a No Fly Zone without doing anything special or hacking the drone. It didn’t know the difference and could have gotten me in significant trouble.
Here’s the disclaimer: I flew my DJI Mavic Mini quite legally as the flight was entirely indoors – where the FAA has no jurisdiction and the TFR doesn’t really apply. But that isn’t the point here.
The DJI Mavic Mini, just like any other DJI drone, has DJI’s proprietary geofencing technology that attempts to make drone operators give consideration for their surroundings by fencing off areas near some (not all) airports. The geofence doesn’t exactly mirror the FAA’s LAANC grids surrounding airports in controlled airspace, but it does attempt to demand unlock (self or custom) in areas nearest those locations. My Mavic Mini is no different. Had I travelled nearer to the airport where the President was holding a campaign rally I might have been in a self or custom unlock zone. But that still made no difference for this flight. The key here was that my drone (and the DJI Fly app that controls it) had absolutely no recognition of the TFR – No Fly Zone.
A Presidential TFR consists of two rings of restriction – an inner 10 mile radius and an outer 30 mile radius. No one within either radius is allowed to fly a drone without express permissions that are next to impossible to receive. I was soundly inside the 10 mile radius. https://tfr.faa.gov/save_pages/detail_0_8111.html
The DJI Fly app did not know that a TFR was in effect – and for good reason: it hadn’t been connected to the Internet in weeks. The safety database that the DJI geofence uses to put any restriction in place for the drone wasn’t up to date with the TFR and wouldn’t have been unless the app was specifically connected to the Internet within the past three days (when the TFR was first posted by the FAA). Without that data the app had no idea to impose any restriction. So, it wouldn’t have mattered if I were inside, outside, or even 2 miles from the airport, the drone still would have launch, flown, and been perfectly unaware of the No Fly restriction. Operators who have lulled themselves into believing otherwise need to pay attention.
Now, how do we know this is not a fluke? Simple. I repeated the process with yet two other drones – the DJI Mavic 2 Pro and a DJI Inspire. Same results. And no, I’m not surprised in the least as this was completely expected. And to further the experiment I connected the DJI Go 4 application to the Internet for the Mavic 2 Pro. After downloading the latest safety update (during the TFR) it recognized that there was a TFR in place.
Had I launched outdoors I’d have been in violation of the Presidential TFR. Such a violation would not have been good. And I can advise that Secret Service does take drones very seriously in such TFRs – a friend going to the Presidential rally turned his DJI drone on (props off and not flying, just using the camera) as he neared the rally location. An armor-clad truck stopped to pay him a visit with a Secret Service agent detaining him. All of that for a drone that was just turned on and not even flying!
So, the next time you think you can entirely rely upon DJI’s geofencing as the sole means of knowing airspace constraints, well, think again. It is incumbent upon you to check your airspace, check for TFRs, and check for local regulations / restrictions. Not doing so can invite big trouble to you and to the rest of the drone community.
A curious case regarding drone rights is awaiting a final verdict in Louisiana. It is a case that drone operators throughout the country are watching closely and wondering why prosecution was even considered let alone brought into the courtroom. And not only is this case about the rights of drone pilots both hobbyist and professional, but it is a frontal assault on the notion of Federal preemption. This case demands your attention and action.
James Benson of Ruston, Louisiana caught the drone bug back in early 2018 and bought a DJI Inspire 1 to fly for fun. His home and several acres of property are quite a distance outside the small city of Ruston. It is a location ideal for flying drones as the nearest airport with controlled airspace is a solid 30 minute drive away in Monroe, LA. From his yard Mr. Benson launched his Inspire on April 11th and elevated to over 300’ AGL. Staying under 400’ but always over 300’ he sped the Inspire out along his property line, passed briefly over a neighbor’s woods and turned around and came back after reaching about 1500 feet in distance. The entire flight was cruising at near top speed in the 40mph range. The flight followed the FAA’s Part 101 hobbyists regulations which were the rules at the time in April of 2018 – Section 336 of the 2012 FMRA that provides the aircraft is flown strictly for recreation, follows CBO safety guidelines, utilizes an aircraft that in 55 pounds or less, gives way to any manned aircraft, and notifies any airport within 5 miles of the flight.
That, however, didn’t stop the next door neighbor from bursting with ire. Benson’s neighbor, who happens to be a sheriff deputy for Lincoln Parish (Ruston’s county government), visited Benson to complain about the drone flying over his property. The two have had neighborly quarrels for some time and this confrontation was but another between the them, or so was thought at the time. On April 15th, four days later, it surprisingly was even more – James Benson was arrested by the Lincoln Parish Sheriff’s Department and tossed into jail for several hours. He was charged with flying a drone with the prosecution citing that there was an intent to surveil.
As drone operators you are certain to be rolling your eyes and shaking your heads at this claim. All too often we are accustomed to tinfoil hat wearing members of the public who have misnomers about drones. Dealing with these types is often tedious at best and downright scary at their worst. In this case we have the State of Louisiana wearing the tinfoil and holding up a provision in their state law that provides “that surveillance by an unmanned aircraft constitutes criminal trespass” and “the phrase ‘enter upon immovable property’ as using in this Subsection, in addition to its common meaning, signification, and connotation, shall include the operation of an unmanned aircraft system as defined by R.S. 14:337 in the air space over immovable property owned by another with the intent to conduct surveillance of the property or of any individual lawfully on the property.”
Whoa! Already legal scholars are contorting their faces with doubt understanding two significant problems with the provision of criminal trespass extending to drones. The first is the issue of preemption. Here the State of Louisiana is attempting to suggest control over airspace for a particular type of aircraft. They have broadly claimed jurisdiction over all airspace by extending trespass to the airspace above a property but only for drones. This is a direct attempt to usurp the will of the United States Congress who more passed legislation more than a half century ago designating the Federal Aviation Administration (FAA) sole jurisdiction of airspace. 49 U.S. Code § 40103(a)(1) expressly provides that “The United States Government has exclusive sovereignty of airspace of the United States”. Thus the field is already occupied. Landmark cases in the U.S. Supreme Court solidified such jurisdiction as well with Causby v. U.S. tossing out the long-held notion that a land owner owned up to the heavens, Florida v. Riley marking that airspace at 400’ was public domain, and Giancola v. West Virginia Department of Public Safety marking that airspace between 100 and 200’ was also still within the public domain. Moreover, in a case that most every drone owner knows well, Singer v. Newton City, MA found that attempts by local governments to regulate airspace were invalid due to the FAA’s occupancy of the field and Federal law preempting those agencies. Thus, the State of Louisiana is out of bounds lacking such jurisdiction. And, just in case you were wondering too, drones were already determined to be “aircraft” based on both a FAA determination and then backed by the decision of the NTSB Administrative Judicial board in the FAA v. Pirker case.
The second issue with Louisiana’s criminal trespass provision is their focus of surveillance. Flight logs from Mr. Benson’s DJI Inspire 1 with an X3 camera clearly show continuous one direction movement at nearly 400’ travelling at over 40 mph. And again, there are two problems with the argument of surveillance. The first of these issues is the speed and direction. 40 miles per hour is moving rather quickly to be considered surveillance. Afterall, can you imagine a police officer or private investigator accomplishing anything on a stakeout by zooming past a residence in their car at a speed of 40 mph? Such speed does not in any way suggest loitering. And surveillance itself isn’t even defined in the statute, but is often meant as close and continuous observation. Certainly, the high-speed singular transit suggests that continuous observation wasn’t taking place. And that leads us to the second problem of proximity. The DJI Inspire 1’s X3 camera is not quite a spy tool. With a 94 degree field of field it is definitely designed for wide visibility of sweeping landscapes.
It has no zoom functionality. And even at a height and distance of 40 feet there is no ability to see facial features of a person or even determine their physique – male or female. The Inspire flying at over 300’ is going to see a lot of acreage, easily dozens of square miles of land in fact, but it isn’t going to be able to discern people on the ground or even be able to figure out the make or model of a car or type of tree.
Finally we have to look more closely at Louisiana’s exemption clause that suggests that the Legislature knew all along that their law was preempted by Federal authority. “The provisions of Paragraph (1) of this Subsection shall not apply to any person operating an unmanned aircraft system in compliance with federal law or Federal Aviation Administration regulations or authorization.” This exemption is quite telling. It expressly is acknowledging that the FAA has sole jurisdiction over airspace by granting that operators who are complying with FAA regulations are exempted from violation of the Louisiana trespassing statue. But it is suggesting that the State can otherwise prosecute under their land use jurisdiction if there are violations of FAA regulations. This challenge to preemption then is both subtle yet direct. The prosecution of Mr. Benson made every attempt to hone in on this area and stretched the bounds of reality at times to do so.
Extraordinary lengths were attempted to make it appear as though Mr. Benson’s flights were not following FAA regulations. The prosecution attempted to make the case that Benson broke FAA regulations by flying beyond visual line of sight (VLOS) arguing that the DJI Inspire 1 could not be seen at a distance of more than a couple hundred feet, suggesting that the elevation at over 300 feet would place the aircraft outside of VLOS and that any distance of more than a few hundred feet would further push the Inspire to not be visible by the unaided eye. The flight logs from the DJI Inspire showed that Benson’s flight extended to roughly 3000’ at over 300’ in altitude. Prosecution witnesses claimed that such altitude and distance would make it impossible to see the aircraft. Certainly DJI Inspire operators would laugh at that notion. The DJI Inspire is of significant size and distinct shape to continue to be able to actually see the aircraft as well as be able to discern the orientation of the drone and its direction of flight. In fact, seasoned drone operators will teach that adding height as distance extends is important to maintaining VLOS as the angle helps by avoiding horizon and ground clutter distractions. And even at that height and distance it remains audible to the operator as the decibel level of the aircraft in flight. The average lawn mower emits approximately 85db and can easily be heard at distances of over 1/4 mile. The DJI Inspire at 79db is the same. And the prosecutions contention that the DJI Inspire couldn’t be seen at over 300’ defeats the notion that Mr. Benson’s neighbor could have seen the drone (which was what prompted the case in the first place).
But moreover, what is curious is that they pressed on the issue of VLOS at all given that the FAA regulations at the time of Mr. Benson’s flights did not have such restriction. In April of 2018 hobbyists were required to follow the Special Rule for Model Aircraft that was found in Section 336 of the Modernization and Reform Act (FMRA) of 2012. Congress had created a carve out for hobbyists that allowed them to operate these unmanned aircraft provided they met five criteria.
They were flown strictly for hobby or recreational use;
They were operated in accordance with a CBO’s set of safety guidelines;
They weighed less than 55 pounds;
They didn’t interfere with manned aircraft;
They notified any airport within 5 miles radius of their intent to fly.
You’ll note that these five requirements do not stipulate flying within VLOS. In fact, Congress themselves recognized this later in 2018 and would pass Section 349 in the 2018 FMRA to add VLOS and repeal the 2012 Section 336 carve out. But that new law wasn’t passed until October of 2018, long after Mr. Benson’s April flights. And where it might also be argued that the #2 requirement of operating within the safety guidelines of a CBO might have VLOS requirements, it should be noted that many CBOs did not have VLOS demands and that CBOs were never legally defined (they still aren’t – the 2018 FMRA demands the FAA to do so, but the FAA has yet to complete that task).
What we have is the State of Louisiana attempting to prosecute April 2018 flights using laws that weren’t created until October of 2018, and doing so despite the reality that the aircraft could easily be seen and heard at such a distance as was also proven by the complaintant, Mr. Benson’s neighbor, who spotted the drone and took offense to it being over his property. But additionally we have the State of Louisiana hinging their prosecution on the notion that they can hold a defendant accountable for violation of federal regulations which is its own can of worms and this is where the case really falls apart. The Louisiana trespassing statute is clearly attempting to pull airspace into land use jurisdiction and as noted earlier 49 U.S. Code § 40103(a)(1) gives clear delineation that the Federal government already occupies the field for such jurisdiction. The end around approach of the Louisiana law is to try subverting that jurisdiction by qualifying that if the Federal regulations aren’t met, then the State should have authority. Hmmm, where have we seen this argument play out before…, oh yes, immigration! You never thought immigration law would tie with flying hobbyists drones now did you?!? But here we are and another Supreme Court case to guide us is Arizona v. United States from 2012.
Immigration law, like aviation law, is solely with the Federal government. Louisiana, like any other state in the nation, isn’t able to grant U.S. citizenship. The State can’t just receive a boatload of immigrants from Costa Rica and anoint them as citizens. And the State also can’t go round up Costa Rican immigrants and process their deportations in State courts. Why? They lack the jurisdiction to do so. It does not matter that the immigrants are standing within the State’s boundaries or that they may have broken immigration and customs laws to arrive here. The Federal government is the only entity with that power and Arizona v. United States spelled that out. In 2010, Arizona passed a law intend on allowing the State to crack down on illegal immigration. Section 3 of S.B. 1070, made it a state crime to be unlawfully present in the United States providing that individuals failing to register with the federal government could be prosecuted by the state.
Section 5, of that law made it a misdemeanor state crime to seek work or to work without authorization to do so. Sound familiar – i.e. if you don’t meet FAA guidelines then we’ll hold you accountable to a state law? The Supreme Court’s decision in Arizona v. U.S. made clear that States were not allowed such prosecution, that Federal law could not be enforced by State authorities. This is why there are Immigration and Customs Enforcement (ICE) officers rounding up illegal immigrants and not Louisiana State Police or Lincoln Parish officers doing such. Illegal immigrants are processed by ICE and their cases heard in Federal court. SCOTUS tossed the provisions of the State law as being preempted by Federal authority. The very same applies in prosecution of FAA regulations. And the FAA made this very notion clear in their recent publication of a playbook to all law enforcement of the can and can’t do scenarios in dealing with drone operations. It can be found here: https://www.faa.gov/uas/public_safety_gov/public_safety_toolkit/media/Public_Safety_Drone_Playbook.pdf
The prosecution of the case is now complete. The outcome is awaited as the judge in this case offered that he would have a decision before mid April. But the echoes of the injustice continue to reverberate even without a decision yet rendered. Drone operations in Louisiana are now fully at risk as the State has proven with the prosecution of this case that they have their own interpretation of FAA regulations, that their trespass clause usurps Federal jurisdiction, and that they can use their local authorities to detain and arrest for supposed aviation infractions despite what the FAA themselves direct as appropriate intervention. It should be further noted that the FAA has not instituted any enforcement action on Mr. Benson for the flights in question – and for good reason as there was no violation.
What you can do:
Write letters to the editor, most especially to the newspaper in Ruston, LA.
Write to the elected officials in Louisiana demanding removal of aerial trespassing and explaining how ill conceived such statutes are and how they endanger legal operations.
Call the State Attorney General’s office and voice a complaint
Sign up to organizations like N.O.D.E. which will alert you of proposed laws or ordinances that need push back from the drone community
The FAA has come under pressure as of late to further figure out proper enforcement for UAS operations. Understandably they do not have the funding to staff an Aircraft Safety Inspector (ASI) on every street corner nor do they have tracking mechanisms like UTM and Remote ID in place. As a result, they have turned to local law enforcement to be their eyes and ears in the field – despite that local law enforcement are unable to enforce federal aviation regulations. This leaves the FAA in a precarious position where they need to train local officers on what they can and cannot do to be a partnering resource.
While the FAA has put out a couple of memos to local law enforcement previously there has been a call for them to give greater detail on what law enforcement should and should not do in responding to a perceived UAS violation. Yesterday the FAA put forward their latest effort – The Public Safety Drone Playbook. This new multi-page flier is a visually appealing document with lots of wonderful graphics. Unfortunately, the text of the document has some serious failings. Where this playbook is supposed to clarify UAS regulations, it both oversimplifies and provides completely inaccurate information that neither helps police, the drone community, or the FAA in several ways.
To start, the FAA attempts to inform officers of the stadium TFR. It fails miserably in doing so. The directions offer up that the “FAA issues Temporary Flight Restrictions” “at stadiums hosting large sporting events.” If you are not familiar with the world of aviation you’d be led to believe that aircraft and drones would not be allowed to fly at Denver’s mile high stadium for an NFL preseason game or at the Michigan State University Green and White game. After all, both stadiums have capacities of over 70,000 and these are large sporting events given that attendance is quite high for each. But as they are not regular or post-season games, the TFR does not apply. The playbook also doesn’t distinguish the type of sporting event.
When the National Hockey League has an event at Wrigley field in Chicago, the stadium TFR also does not apply as it doesn’t extend to NHL games even if the stadium is filled to capacity. This can lead to awkward encounters with UAS operators being confronted about restrictions that just don’t exist – encounters that can be liability concerns for the local police departments.
Similarly, the playbook is advising law enforcement to demand view of the operator’s Certificate of Authorization (COA) and provides a sample COA document. Of course, the vast majority of legal UAS operations within controlled airspace don’t have a COA document establishing the validity of the flight. Rather with the LAANC system, drone operators submit for airspace authorizations and receive SMS text replies with authorization codes that give them permission to fly within the specific area at the specific time. This documentation gives a false sense to an officer that a COA as expressed in the playbook is required.
But the most major gaffe in this playbook document comes in their overview of “What is my authority?” portion of the materials. Here the FAA recognizes that local law enforcement are partners but lack the ability to enforce federal aviation regulations. As a work around the FAA attempts to suggest measures that local law enforcement agencies can use to police suspected rogue UAS operations. They correctly offer that LEOs can ask to see the proof of aircraft registration and any waiver for the drone’s operation. These items are standard FAA ramp check details. UAS registration is required as it was signed into law on December 12th, 2018 after previously having been tossed out by the federal courts in the Taylor v. FAA case in early 2018. An officer can inspect the drone for external registration markings and get assurance that the drone is registered by seeing the proof of aircraft registration – a card printed out from the FAA DroneZone upon successful UAS registration. Likewise, any waiver (which includes the affixed application for waiver) can also be reviewed to ensure that the UAS flight has proper authorization from the FAA. But immediately after stating these two “CAN” options, the FAA puts forth, “While law enforcement can ask, a UAS or drone pilot is NOT required by federal regulation to make their UAS FAA Remote Pilot Certificate available.” Wait! What?!?!? This statement by the FAA is complete and utter hogwash and completely throws out their two previous “CAN” request statements. Here’s why…
The FAA stating that a UAS operator is not required to show their FAA Remote Pilot Certificate goes against §107.7(a)(1) which requires the Remote Pilot in Command (RPIC) to make their remote pilot certificate with a small UAS rating available to the Administrator.
According to 14 CFR §1.1 the definition of an Administor is “the Federal Aviation Administrator or any person to whom he has delegated his authority in the matter concerned.”
This becomes key in also mandating that the RPIC show proof of their registration and waiver documentation. If the FAA is contending (as they did with their statement on not requiring an RPIC to show their certification) that local police do not meet with the 14 CFR §1.1 definition of Administrator, then operators are also NOT required to show registration or waiver proof as those items are defined in §107.7(a)(2). You can’t have one without the other.
Inevitably though even getting to the point of officer intervention there is the challenge of suspecting a criminal action is taking place. Just as “stop and frisk” was found to be unconstitutional, a police office needs to have some reasonable suspicion that the operation is not within legal boundaries in order to detain and require the production of documents to prove the legality of the operation. That poses a great challenge where law enforcement need to know whether or not the airspace at the location is controlled airspace, have a keen eye to really figuring out if the drone is at 410’ AGL of 350’ AGL, and being able to determine whether the flyer is a hobbyists and fully allowed to fly at night with no waiver or a Part 107 RPIC that requires one. The best first response then of any drone operator to a police office that has approached them with questions is probably, “am I being detained?” – and that isn’t the most desired way to start an interaction.
Roughly one month after the initial preliminary injunction hearing for the MCDO v Genesee County case regarding the ability to fly drones in the Genesee County Public Parks, drone operators once again filed into a Flint, Michigan courtroom. MCDO, short for Michigan Coalition of Drone Operators, have been seeking for the District court to disallow Genesee County from enforcing an ordinance that effectively bans use in their county parks. They site that Michigan’s Public Act 436 of 2016 expressly disallows local governments (political subdivisions) from creating or enforcing their own drone ordinances per MCL 259.305 establishing state preemption. The county has attempted to defend that the State of Michigan’s law doesn’t apply to them and argues that drones are too noisy and startling and need to be excluded from their parks. Judge Joseph Farah is presiding over the arguments and tasked with what will be a landmark decision on Michigan’s UAS preemption law.
Today’s hearing at the Genesee County Courthouse focused on testimony and evidence provided by Jason Harrison, the President of MCDO who was detained by Genesee County Parks and Recreation officers in December of 2018 for flying a drone at one of the parks. Harrison, a Part 107 certified operator, walked though and detailed his detainment, the attempts to educate the Genesee County Parks Commission (GCPC) on drone use and the Michigan state preemption law, and offered up his understanding of how the GCPC changed the original manned aircraft ordinance to include “drones” after the county prosecutor refused to levy legal action after the detainment incident with the suggestion that flying a drone wasn’t against the original regulation. MCDO attorney Dean Greenblatt methodically walked through a binder full of exhibits offered for evidence with Mr. Harrison testifying as counsel for Genesee County routinely objected and most often overruled.
In defense, the attorney for Genesee County narrowed her focus upon three main concepts. In cross examination of Mr. Harrison she was keen to determine how loud drones were, asking about the noise levels of various sizes and styles of drones. She then turned towards a drone “fly-in” protest organized by Mr. Harrison and other members of MCDO. The fly-in, per her suggestions, was unlawful as it did not have a special group park use permit, making the argument that the roughly dozen attendees would constitute the need for a permit that was never sought. And counsel finally zeroed in on whether or not Mr. Harrison had ever flown with commercial intent in the Genesee County Parks offering up that any commercial use of the parks – even a photographer taking family or senior portraits in the parks – would require a $75 per day use permit.
With the approach of 5pm, Judge Farah noted that a final decision could not be made immediately but that no further oral arguments would be heard for the case. Instead a strict 10 day period for the filing of amended briefs would be tendered to both plaintiff and defense with a written court decision following shortly after. With that the court recessed and parties departed.
The hearing was well attended by drone operators. Fourteen drone operators from around the state came out to support the lawsuit, many donning identical drone ties. Mr. Harrison’s parents also were in attendance to listen to their son’s testimony. Michigan is one of 17 states that have state laws with the same or highly similar preemption language that disallow local governments from creating a patchwork of drone ordinances. The ruling in this case would set a precedent for the State of Michigan on the legality of the preemption clause. If affirmed, it is reasonable to assume that the 33 other states in the nation would be likely to pass similar state law, a move that many drone operators state is necessary to ensure a consistent framework of legal operation. The FAA themselves have publicly argued that localities should not create their own ordinances as doing such actually endangers the national airspace. In the end, while no final decision came through, drone operators felt confident in the legal arguments made and are anxiously awaiting the final word.