Overcast sky for drone companies

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Learning to fly a drone is easy.

Learning to navigate the laws that govern where they can be steered, by whom and for what purposes is the hardest part.

Even experts in drones, also known as unmanned aerial systems (UAS), cannot agree on what is legal and what is not. They largely agree on one thing, though: There needs to be some consistency before a patchwork of local laws and regulations stifles the UAS industry.

“I think it’s going to end at the federal level and probably in the Supreme Court,” predicts Vic Moss, director of operations for the Drone Service Providers Alliance in Denver and a member of the Drone Advisory Committee of the Federal Aviation Administration. “It will get to the point where it’s just ‘where is the navigable airspace in terms of drones? But in the meantime, you’re going to have all these little towns making their own laws. “

It’s a potential nightmare for UAS operators, ranging from big players like Amazon, which hopes to use drones for parcel delivery, to individual pilots who take photos for real estate clients or help farmers map and analyze. their fields.

“I mainly farm. It could be anywhere in the northern half of Ohio for me,” said Tom Taconet, owner of Avon UAS in Lorain County. “So if each (local government) does their own thing, trying to figure out where I can fly and what I can fly, it’s going to be impossible. It’s going to impact my drone business, but it’s also going to affect people. farmers, because they call me for a reason.

The problem is becoming an increasingly prominent spot on the radar of UAS pilots locally, as drone laws are passed by local governments in Northeast Ohio. Currently, the City of Brook Park is considering legislation that has some in the industry involved.

“Last (month) social media started to spark with comments of Brook Park derailing and taking a very heavy anti-drone order,” said Chad Hankins, who operates Tamarack Aerial Services in Brook. Park, a company that inspects and models cell phone towers and other vertical structures.

“It includes things that are beyond the purview of cities to control, like airspace,” Hankins said of the Brook Park bill.

Hankins knows his stuff. In addition to running a UAS company that must stop 35 pilots across the United States from breaking the law, he teaches pilots how to stay legal through courses at Cuyahoga Community College and offered by the Ohio Aerospace Institute.

Hankins starts from the reasoning – followed by many, perhaps even the majority of those in the UAS industry – that the regulation of airspace for drones is the exclusive purview of the FAA. So they believe that if a pilot is in compliance with FAA rules and the FAA says the pilot can fly in airspace that is in the public domain, no local or state government can enforce a law that says the contrary.

Brook Park’s legislation is not unique. It is modeled after a law put in place by Aurora in 2020, said Ward 1 Councilor Tom Troyer, who introduced the Brook Park measure.

This Aurora Law states that no one should operate a drone within city limits if the craft is within 1000 feet of any school property, city-owned buildings, cell phone towers, sub- utility stations or active crime and fire scenes. It also prohibits photographing anyone on private property, without the owner’s permission, unless the person photographed can also be seen without a drone.

Troyer said he’s not trying to harm anyone or the industry as a whole, but the city needs to protect its assets and people’s privacy.

“I’m just trying to get things done because I think we’re going to see more and more of it,” Troyer said, adding that he had been asking for some sort of legislation for five years before submitting his own. “It’s just basic legislation, basically stolen from Aurora. It’s the same legislation they have.… It will probably be changed a bit, depending on what the council wants to use.”

While the law seems reasonable to Troyer, this is not how UAS advocates see it.

“It’s very disheartening,” said Jason Lorenzon, a commercial pilot and aviation lawyer who teaches at Kent State University, of the proposed legislation.

Lorenzon says such laws not only make it harder for commercial UAS operators here, but also make Ohio appear hostile to drone-based companies.

“What Aurora is doing and what Brook Park is trying to do is going to chill some of these bigger companies,” Lorenzon said. “Companies like Amazon, FedEx, the big players, even Google all have their employees looking for legislation like this, so it really makes our region unattractive for business.”

But while Lorenzon believes the Aurora Law and Brook Park Law likely override the power of cities to regulate drone flights, he differs from Moss, Hankins, and others in the industry when it comes to what cities do. or other local governments can do.

Lorenzon disagrees with the FAA and many others in the drone industry regarding how much of the airspace falls under the sole authority of the FAA

“The FAA thinks it regulates airspace from the blade of grass and that’s not true,” Lorenzon said.

He also claims that private citizens have the right to say who can fly over their property, at least at altitudes below 400 feet at which drones are allowed to fly.

“This is 100% incorrect,” said Moss, of the Drone Service Providers Alliance. “If I couldn’t fly over private property, I couldn’t do my job.”

For its part, the FAA appears to be siding with Moss.

“Federal law gives the FAA exclusive jurisdiction over the country’s airspace,” FAA spokeswoman Emma Duncan said via email. “A local law that prohibits people from taking off or landing drones on public property may not conflict with the jurisdiction of the FAA. … However, a local law prohibiting people from flying drones in some airspaces would likely conflict with the jurisdiction of the FAA. “

One of the main issues UAS advocates would like to see addressed at the federal level is the concept of “navigable airspace,” which is what the FAA is legally authorized to regulate. According to the FAA, navigable airspace is “the airspace at or above minimum flight altitudes” that an aircraft needs to operate safely.

But which plane? The court case that defines much of the case dates back to 1946, when a North Carolina chicken farmer named Thomas Causby successfully sued the federal government for flying military planes within 100 feet of the sky. over his farm and killed his chickens.

The United States Supreme Court ruled that Causby was entitled to airspace immediately above his property, but also asserted that navigable airspace was in the public domain. The government, through the FAA, ended up regulating airspace starting in 1958 and set 500 feet as the lowest altitude for navigable airspace in most cases.

But UAS advocates point out that there were no compact drones in 1958 – and today’s drones certainly don’t need to be 500 feet in the air to maneuver. (Not to mention that drones are only allowed to fly at an altitude of 400 feet.)

What the UAS industry would like to see happen is for the FAA’s sole authority over airspace to be clearly established, and for that to include the airspace in which drones fly. This would mean that they could fly pretty much anywhere, but would be subject to the same privacy laws and other matters as anyone else at the same time.

But until that happens, drone pilots don’t know who has jurisdiction, the FAA, or cities like Aurora, Book Park, or countless others that have passed local drone laws.

The problem, says Jonathan Rupprecht, a specialist in Florida drone law well known in the industry, is that if pilots are pulled over by local police or the sheriff, they are on their own. They will likely win if they can afford to fight long enough in court, he said, but they should not rely on help from the FAA, which has not come to the aid of pilots in such circumstances so far.

“I have never seen the FAA intervene once to defend someone, or the Ministry of Transport. You are alone,” Rupprecht said.

He’s busy with federal matters involving the rights of drone pilots, but Rupprecht said he plans to attack states and local governments later. If he wins, he gets his legal fees paid by the defendant, he said, but the point is to defend what he says are rights in heaven.

“It’s a federal right to fly on waterways, so as a city, state or county, where are you in denying me my federal rights?” Rupprecht asks.

Very good, but UAS operators are not looking to fight in court or be legal guinea pigs. They say they just want clear, consistent rules. While waiting for progress at the national level, they say they hope cities will consult with them before writing legislation affecting their industry, as is the case with most other industries.

“We would be happy to work with them if they ask,” Hankins said, noting that he is due to meet with Brook Park City Council on its legislation soon.


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