Puttering on about drones

Subsequent to the posting of this article, the U.S. Court of Appeals for the District of Columbia, in a case styled John A. Taylor v. Michael P. Huerta and the Federal Aviation Administration vacated the requirement that drones flown for recreational purposes must be registered with the FAA. Therefore, the new requirements referenced in the article requiring recreational users to register, to pay fees, to provide information, and to display identification are no longer of any force and effect.  Requirements as to commercial drone operators remain in place.  At the present, it is unknown if the FAA will pursue an appeal or if congress will move to modify the current legislation. But as of right now, if you are a recreational user, as Emily Litella would say: “Never mind.”

Spring showers are slowly evaporating, breezes are still slightly cool, and so in Texas many people find this the ideal time to engage in family outdoor activities. One traditional such activity during this time of year was the flying of kites in the still temperate winds.

But this is the 21st century.  Mary Poppins and outdoor flying activity find the kite an anachronism replaced by the sci-fi allure of scores of drones whizzing all around like deranged mutant mosquitoes.

Unlike kites, they are untethered, can move in infinitely more directions, and most importantly have a number of federal and state regulations that must be complied with before takeoff. Charlie Brown certainly did not need a legal consult as his greatest aeronautical adversary was a kite-eating tree, but the perils to an uninformed drone operator can be significantly worse.

This brief article seeks to acquaint the recreational user with some of the legal requirements of drone operation.

Federal Aviation Agency

First and foremost, the Federal Aviation Administration (FAA) considers even recreational drones (described in government-speak as Unmanned Aircraft Systems and usually referred to by the acronym UAS) to be aircraft falling within their jurisdiction.

Therefore, the first FAA requirement is encountered upon the initial purchase of a UAS. Most recreational users are most likely to purchase a UAS weighing between 0.55 and 55 pounds. UAS within this weight category must be registered. This may be done online at registermyuas.faa.gov. You will need to provide your name, address, email address, the make, model, and serial number of your new UAS and pay a fee of five dollars. In exchange, you will receive an FAA registration certificate and number. Your UAS, even though it may weigh only a couple of pounds, and to most people would be considered a toy, must nevertheless be registered and carry the registration number just as if it were the family Cessena, Beechcraft, or Southwest Airlines Boeing 737. Furthermore, the registered operator must be the one flying the UAS, and must carry the certificate of aircraft registration at all times while flying. Any federal, state, or local law enforcement officer is entitled to see the registration upon request.

Hobby and Recreational Use

Now you are ready for your first flight. There are specialized rules even for hobby or recreational use. The first rule, obviously, is that recreational use does not encompass any kind of remuneration for performance of any aspect of the flight and be solely for relaxation, refreshment, or diversion.

All flights must be in accordance with a set of community-based safety guidelines, such as those promulgated by the major model aircraft flight associations.

The operator must know and obey any restrictions to airspace contained in any Notice to Airman (NOTAM), whether or not temporary or permanent. To assist in learning of these restrictions, the FAA has established a mobile app called B4UFLY, which will assist in determining where flight restrictions are; however, certain areas such as within five miles of any airport are always restricted unless prior notification to the airport is provided.

Other regulations require all flights to be within visual line of sight, and should not be flown in a reckless manner. The minimum age for operating a drone is thirteen years of age, and if the owner is less than thirteen, someone thirteen or older must register the UAS.

Reckless Operations

The FAA may take the position that the following may be evidence of reckless UAS operations, and severe criminal penalties may result:

  • Flying higher than four hundred feet
  • Flying your UAS out of sight
  • Flying near other aircraft
  • Flying over groups of people, sports events, or scenes of disaster

In addition, Texas has certain state laws concerning protection of an individual’s privacy that prohibits surveillance of individuals without their permission for the purposes of photographing that individual.

Insurance

Additionally, operators should take into account that accidents may occur. Homeowners should check with their insurance agent or attorney to review their liability policies to determine if coverage is afforded for damages caused by the use of a UAS.

Conclusion

This article is only meant to highlight some of the basic issues involved in the operation of a UAS and is not intended to be, nor is it, legal advice. Nor does it cover all legal requirements and circumstances of UAS operation.

Now where did I put that ball of twine? It’s a bit breezy outside.


Henry Wehrmann | Farrow-Gillespie & Heath LLP Henry S. Wehrmann practices in the primary areas of employment litigation defense, trade secrets and other intellectual property litigation, personal injury litigation defense, and products liability litigation defense. He is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and is a former chair of the Sports & Entertainment Law section of the Dallas Bar Association.

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