By Robert Zollna
After some spectacular mishaps, mass-media attention and public pressure, the Federal Aviation Administration has implemented new laws for all unmanned aircraft systems (or UAS), or drones, that took effect in December 2015.
Two months in, many grey areas and legal challenges have added to the confusion for the regulators, recreational and commercial UAS pilots and the public at large. How has that affected the local communities, operators, law enforcement and public facilities?
First, look at each governing body, their policies and what it means for each party involved.
The Federal government: They have taken a pretty much hands-off approach other than to reaffirm their sovereignty of air space and passed the issue to the FAA. The only real action they have taken is to ban UAS over national parks and monuments.
Thus, all national parks, monuments and military installations are a “no-fly zone” for UAS without prior written permission. All other airspace is legal for a UAS to fly unless otherwise stated by the FAA.
The FAA: Originally set up for civil aircraft, the FAA is challenged with the new technology. Before the end of 2015, the regulation was pretty much left in the hands of the Academy of Model Aeronautics (AMA) to “self regulate” unmanned aircraft. But the rapid explosion of smaller, cheaper UAS and public pressure has forced the FAA to implement its own rules.
The FAA rules and regulations currently set for recreational use are:
1. All UAS that weigh between 0.55 lbs. and 55 lbs. have a mandatory registration with the FAA. Registration numbers must be prominently displayed on the UAS and one must be at least 13 years old to register.
2. UAS cannot fly higher than 400 feet from the ground.
3. UAS must be flown in line-of-sight of the operator.
4. UAS cannot be flown within a five mile radius of a civil airport without prior approval.
5. UAS cannot be flown intentionally over large groups of people.
6. Cannot photograph or video persons in areas where there is a reasonable expectation of privacy.
The FAA rules for commercial users are:
1. Must obtain a FAA 333 exemption to operate commercially.
2. Must be a FAA-licensed pilot to legally fly a UAS for commercial use.
What does this mean? Most of the rules are self explanatory, until you get the definition of “sovereign airspace” — generally a property owner owns up to 80 feet of the air above their property. Zoning laws vary. It can be as high as 500 feet and as low as 25 feet depending on special zoning and location. A tall building will have more, whereas the end of a runway or helipad will have less.
Any public space, or even backyards, are not places that are legally considered a reasonable expectation of privacy. However, hovering outside a window would both violate private airspace and reasonable expectations of privacy; flying more than 100 feet would not.
By requiring a UAS to register with the FAA, a strange legal precedent has been set in place in that, now being a legally-registered aircraft with a federal agency, a licensed UAS and the operator now falls under the protection of the FAA. To destroy one in legal flight or to interfere with the operator while in flight could, in theory, carry the same legal action as with any other aircraft.
The AMA: The AMA is legally challenging many of the rules set forth by the FAA, mostly on the grounds that the FAA cannot legally make laws, but can only develop guidelines and regulations. The AMA’s primary dispute is over the authority of the FAA to regulate radio controlled aircraft.
Washington State government: Washington state has pretty much just followed the federal government’s lead.
In summary, no UAS may take off and land in any state park or monument. Why this applies to only take-offs and landings is another strange grey legal area. While the federal government can regulate airspace, the individual states cannot; the only authority they have is over what happens within its parks and monuments, not what’s over it. That said, many states have federally approved mandates for sensitive areas such as the capital building and other places for security.
Kitsap County: Like the state, Kitsap County has banned take-offs and landing within its parks. The same legalities are involved as with the state parks. In theory, UAS could legally fly into county park airspace from outside, then leave and not be in any violation.
City of Port Orchard: Once had banned UAS from city parks, but after much consideration now allows them. Then, realizing that with a national, state and county ban already in place, operators were being forced into residential and public areas, furthering conflicts. Their policy is to handle complaints on a case-by-case basis and report not-serious problems or complaints.
City of Bremerton: Upon my first contact with the parks department, I was told by the clerk that UAS were banned in Bremerton city parks. When asked for the rules and regulations in writing, no specific rule could be found. The closest regulation was a provision for flying objects, but seemed to be more geared for javelins or lawn darts. On my second contact, I was transferred to Jeff Elevado, the Bremerton interim Parks director, who said without any specific rule in writing, they cannot enforce a ban and will take any complaints on a case-by-case basis. To date, they have had no serious complaints or incidents.
Silverdale: Being unincorporated, Silverdale parks fall under Kitsap County parks department and as such has the same ban is in place for take-offs and landings.
City of Poulsbo: Mary McCluskey of the Poulsbo Parks Department said the city has no regulations other than the Poulsbo municipal code and that doesn’t address UAS directly. They do require that all UAS follow the FAA guidelines and be registered. They address any problems on a case-by-case basis. She says they have had no problems or complaints as to date.
Bainbridge Island: Dan Hanlin of the Bainbridge Island Parks department said they have no policy and have had no issues other than retrieving the occasional downed aircraft from trees, which they do as a courtesy and to prevent anybody from trying to climb a tree to retrieve one and get hurt.
Out of all the municipalities I have talked with, Bainbridge Island seemed to be the most receptive of UAS and even have local pilots shoot photographs of park property to help promote what the parks have to offer.
The UAS pilots: As Shawn Hinson of Port Orchard flew a D.G.I. and Yuneec Typhoon drone at Vanzee park, he explained his position: “Registration is merely punishing the safe, responsible hobbyist, while the cheaper, small ones that are mostly flown by kids are where most the complaints and problems arise. And they are below the weight limit and age to register anyway, so registration solves nothing”
Hinson said his drone cost nearly $2,000.
“It has high-end GPS in both the drone and the remote; they talk to each other constantly through a dedicated WiFi. It goes where I want it and doesn’t move regardless of wind till I want it to. If it would happen to lose a signal with the remote, it will automatically fly to where it took off and land automatically.”
Turns out that that particular aircraft also has what is called “pre-programmed geo fencing” written into the craft’s firmware so it will not fly into a restricted area or over the FAA-restricted 400 altitude limit. If it is already in a restricted area, it will not even turn on.
“That much money and time we spend tweaking our aircraft, we really don’t want to do anything to endanger our investment or any bystanders, but with the national, state and county bans, along with the five-mile airport ban, we are forced into small city parks or public areas,” Hinson said. “A new pilot needs space to practice safely, but with the best open spaces being in the Kitsap County parks, we are left with no option.”
The FAA has announced that they will be publishing a revision to the current rules in place in 2017. Hopefully, they can fill in many of the grey areas and clarify many of the current rules. Until then, the confusion will continue.
Robert Zollna is a recreational drone enthusiast.
