Part 2: Is It Legal to Fly Drones for Mapping in the United States?

December 27, 2013  - By

After I published last month’s Is It Legal to Fly Drones for Mapping in the United States? article, I received a bit of reader feedback and attended a small conference focused on UASs for mapping. I learned and experienced a few new thoughts about UASs for mapping in the United States, so I thought I’d share them in a second installment.

In early December, I attended the UAS Precision Farming Forum, a local conference that was sponsored by Yamhill County (Oregon) and targeted at the agriculture market. Yamhill County covers 718 square miles (1,860 square kilometers) and contains a healthy number of agricultural and vineyard farms.

The conference was filled to capacity with 120 attendees, a complete lineup of speakers, and even a couple of exhibitors — not bad for a county-hosted local conference. This, and other such conferences around the United States, speaks volumes about the intense interest in UASs for agricultural uses in the U.S. For instance, the Association of Unmanned Vehicle Systems International (AUVSI) hosts an annual conference that attracts more than 8,000 attendees.

At the Yamhill conference, I was most interested in hearing what speakers, attendees and exhibitors were saying about the FAA rules on civilians flying UAVs. The FAA is pretty clear (at least when responding to me and others) about the rules for civilian use.

First of all, the most prolific user of UASs for mapping in Oregon seems to be Oregon State University, who possess eight Certificates of Authorization (CoA) from the FAA (Federal Aviation Administration) to operate UASs for research purposes, according to Dr. Michael Wing, associate professor of Geomatics. Dr. Wing explained that applying for a CoA from the FAA is an intense process requiring a lot of detail.

PROJECT SITE PLATFORM SENSOR PARTNERS
Forest Canopy/Structure McDonald Forest Prioria Maveric EO n-Link
Search and Rescue McDonald Forest Aerospace Vapor/VTOL EO/IR n-Link
Xmas Tree Research OSU No. Willamette Mikrokopter VTOL EO OSU, n-Link
Potato Research HAREC Lockheed/Procerus EO/IR Boeing, n-Link, USDA
Potato Research HAREC Tetracam HawkEye EO/IR Boeing, n-Link, USDA
Large Scale Potato Res. Boardman Lockheed/Procerus EO/IR Boeing, n-Link, USDA
Large Scale Potato Res. Boardman Tetracam HawkEye EO/IR Boeing, n-Link, USDA
Flight Research Olympia Tetracam HawkEye Boeing, n-Link

Dr. Wing also presented the bill of materials (BOM) for one of the UASs they are using, a Zephyr II.

RiteWing Zephyr II

RiteWing Zephyr II – 54″ Wingspan

Zephyr II components (per OSU):

2.4GHz Tx/Rx radio $360
4500mAh LiPo battery $30
Airspeed sensor $25
ArduPilot APM 2.5 $160
Canon S100 $300
RiteWing Zephyr II $325
TTC Radio $86
uBlox GPS module $76
Voltage regulator $15
Total: $1,377

When I asked Dr. Wing about the CoA restrictions, he said the CoAs require him to have an FAA-licensed pilot on site for each mission.

If you recall from last month’s article, the FAA was very clear in responding to my queries that civilian commercial operation of UASs in the U.S. are prohibited unless the operator possesses a CoA from the FAA. Furthermore, the FAA says that commercial operation of UASs in the U.S. airspace is not allowed. The FAA is working on rules to integrate commercial UAS operation into the U.S. NAS (National Airspace System). The local AUVSI president, in his keynote speech, essentially said the same thing.

I went to the exhibition area because I wanted to talk to the exhibitors and understand who their target market was, since commercial operations of UASs are prohibited. Their answers were interesting. Their first answer was that “farmers can fly UAS as hobbyists.” Recall that hobbyists (or modelers as the FAA refers to them) can operate UASs up to 400 feet above ground level (AGL). I asked the FAA specifically about this. They say that any commercial usage of UASs is prohibited. For example, you can take the same UAS that you fly for fun, and you are permitted to fly it below 400 feet AGL. However, once you use the same UAS for commercial purposes (such as mapping your farm), you are violating the FAA rules.

When I pushed the vendor about this, his next answer was “as long as the farmer only flies it above his or her farm, they are allowed.” While I can sort of understand the logic behind his first statement, this statement didn’t make sense to me. If he’s using it for a commercial purpose, what difference does it make if it is over his own property or not? The problem I have with the vendor’s attitude is that he has little risk. It’s not against the FAA rules to sell UASs for commercial purposes. FAA rules are only violated when someone uses a UAS for commercial purposes. The bottom line: caveat emptor (buyer beware). The FAA is likely not going to pursue the manufacturer or distributor of the UAS, only the operator (the farmer).

But, is it really against FAA rules to operate commercial UASs in the U.S.? The vendor claimed that he asked the FAA, and said that you will get a different answer from the FAA depending on who you speak to. To some extent, I understand the confusion. Furthermore, when I asked the FAA to cite examples of litigation, enforcement actions, etc., I was told I would need to file a Freedom of Information Act request (FOIA), which I did about November 12. Beyond acknowledging my request, the FAA has sent nothing. I’m told from others that they have made similar requests (months ago) and have still not received the FOIA information. This certainly casts a cloud of doubt over the confidence the FAA has in its position.

Has anyone actually tested the FAA’s position in court?

Thanks to Twitter, I linked up with an attorney who is representing a UAS operator who is being sued by the FAA for flying a UAS for commercial purposes in the United States. Attorney Brendan M. Schulman says his client’s case is the first to test the FAA rules in court. Mr. Schulman says that the FAA has no basis on which to enforce the rules. He’s arguing that the “FAA’s position is based on policy statement and not an enforceable regulation.”

Schulman’s client, Raphael Pirker, a Swiss citizen and resident, was assessed a $10,000 fine pursuant 49 U.S.C. §§46301(a)(1) and (d)(2) and 46301(a)(5). The FAA argues that Pirker:

1. On or about October 17, 2011, you were the pilot in command of a Ritewing Zephyr powered glider aircraft in the vicinity of the University of Virginia (UVA), Charlottesville,

2. The aircraft referenced above is an Unmanned Aircraft System (UAS).

3. At all times relevant herein you did not possess a Federal Aviation Administration pilot certificate.

4. The aircraft referenced above contained a camera mounted on the aircraft which sent real time video to you on the ground.

5. You operated the flight referenced above for compensation.

6. Specifically, you were being paid by Lewis Communications to supply aerial photographs and video of the UVA campus and medical center.

7. You deliberately operated the above-described aircraft at extremely low altitudes over vehicles, buildings, people, streets, and structures.

8. Specifically, you operated the above-described aircraft at altitudes of approximately 10 feet to approximately 400 feet over the University of Virginia in a careless or reckless manner so as to endanger the life or property of another.

9. For example, you deliberately operated the above-described aircraft in the following manner:

a. You operated the aircraft directly towards an individual standing on a UVA sidewalk causing the individual to take immediate evasive maneuvers so as to avoid being struck by your aircraft.
b. You operated the aircraft through a UVA tunnel containing moving vehicles.
c. You operated the aircraft under a crane.
d. You operated the aircraft below tree top level over a tree lined walkway.
e. You operated the aircraft within approximately 15 feet of a UVA statue.
f. You operated the aircraft within approximately 50 feet of railway tracks.
g. You operated the aircraft within approximately 50 feet of numerous individuals.
h. You operated the aircraft within approximately 20 feet of a UVA active street containing numerous pedestrians and cars.
i. You operated the aircraft within approximately 25 feet of numerous UVA buildings.
j. You operated the aircraft on at least three occasions under an elevated pedestrian walkway and above an active street.
k. You operated the aircraft directly towards a two story UVA building below rooftop level and made an abrupt climb in order to avoid hitting the building.
1. You operated the aircraft within approximately 100 feet of an active heliport at UVA.

10. Additionally, in a careless or reckless manner so as to endanger the life or property of another, you operated the above-described aircraft at altitudes between 10 and 1500 feet AGL when you failed to take precautions to prevent collision hazards with other aircraft that may have been flying within the vicinity of your aircraft.

11. By reason of the above, you operated an aircraft in a careless or reckless manner so as to endanger the life or property of another.

To view the entire complaint, click on FAA_Pirker_Complaint.

Schulman argues:

“In this proceeding, the FAA uses those same policy statements as a pretext for applying federal aviation regulations to the operation of model airplanes. This approach violates the most basic tenets of regulatory law and the Administrative Procedures Act which require a valid notice and comment rulemaking process before legislative rules are issued. Both at the time of Mr. Pirker’s model aircraft operation in 2011, and still today, there exist no enforceable federal aviation regulations concerning the operation of civilian “drones,” whether that operation is for commercial purposes or otherwise. For the reasons set out below, the Administrator’s civil penalty is improper as a matter of law and the Complaint must be dismissed in its entirety.”

To view Schulman’s entire brief, click on FAA-v-Pirker. Per Schulman’s brief, he has asked the court to dismiss the case for reasons he outlines. He is awaiting the judge’s response. If the case is not dismissed, Schulman says the next step is discovery and a hearing.

On a related note, Schulman’s law firm, Kramer Levin Naftalis & Frankel LLP, announced on December 18 that they launched a new practice group named Unmanned Aircraft Systems Practice Group. Following is the announcement:

In light of the increasing use of drones for commercial purposes, Kramer Levin Naftalis & Frankel LLP has launched a practice group dedicated to providing counsel to clients in this rapidly growing industry. The Unmanned Aircraft Systems Practice Group is a multidisciplinary team of Kramer Levin attorneys who are versed in the legal complexities of the nascent commercial drone revolution.

Emerging commercial drone technology presents a number of economic opportunities, as well as the prospect of enhanced worker safety in hazardous conditions, humanitarian benefits in search-and-rescue and disaster missions, and environmental advantages through improved agriculture, energy and infrastructure management. Kramer Levin’s new practice will provide sophisticated and creative problem-solving approaches in this uncharted legal territory.

“Unmanned aircraft technology will define the next century in countless industries in the United States and will present new legal challenges in a number of areas including regulatory policy, aviation law, property rights, and intellectual property law, to name a few,” said Paul S. Pearlman, Kramer Levin’s managing partner. “As the definitive leaders in this field, we saw an opportunity to formalize a practice area led by informed attorneys who can advise clients in a wide range of industries.”

The firm is currently representing Raphael Pirker, the world’s foremost civilian drone pilot, in the first federal case ever involving the operation of commercial drones in the United States. Kramer Levin attorneys also regularly advise individuals, corporations, venture capital firms, educational institutions and robotics developers worldwide on the use of unmanned aircraft technologies in commercial, educational, public interest and scientific applications.

“The landmark case we are litigating will have enormous regulatory and economic implications for the industry’s future,” said Brendan Schulman, special counsel at Kramer Levin who has two decades of hands-on experience with unmanned aircraft and understands how the technology works and how to apply it safely and effectively. “This is a game-changing moment for forward-thinking businesses, and we are here to assist our clients navigate legal issues so they can become the next decade’s pioneers in their industries.”

In addition to Mr. Schulman, the new practice area will include attorneys from a number of existing firm practice areas including corporate, environmental law, litigation, intellectual property, insurance, government relations, and regulatory issues.

I’ll keep you updated on the FAA v. Pirker case as it evolves.

Thanks, and see you next month. Happy Holidays!

Follow me on Twitter at https://twitter.com/GPSGIS_Eric

This article is tagged with and posted in GSS Monthly, Imagery, Mapping, Technology, UAS/UAV
Eric Gakstatter

About the Author:

Eric Gakstatter has been involved in the GPS/GNSS industry for more than 20 years. For 10 years, he held several product management positions in the GPS/GNSS industry, managing the development of several medium- and high-precision GNSS products along with associated data-collection and post-processing software. Since 2000, he's been a power user of GPS/GNSS technology as well as a consultant with capital management companies; federal, state and local government agencies; and private companies on the application and/or development of GPS technology. Since 2006, he's been a contributing editor to GPS World magazine and the Geospatial Solutions website. He is the editor of Geospatial Solutions Monthly, a weekly newsletter focused on geospatial technologies. Follow Eric on Twitter at @GPSGIS_Eric.

14 Comments on "Part 2: Is It Legal to Fly Drones for Mapping in the United States?"

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  1. I attended a Society of Petroleum Engineers International Technical Conference a couple of months ago where I learned that several Oil and Gas Production companies were using drones for inspection of difficult to reach equipment on offshore production platforms and on land based facilities. They fly them only over their own facilities and for their own use therefore it becomes a utilitarian tool and is not technically used commercially since no data or result derived by the drone is sold. I am told that this type of use is expanding rapidly and because of the wording of the rule in the CFR this type of use as is the same with hobby use is not in violation.

  2. Eric Gakstatter Eric Gakstatter says:

    The FAA has been pretty clear to me that any business use, whether its on your own property or someone else, and whether you charge a fee or not, is a violation of the FAA rules.

    A quote from the FAA response to me:

    “AC 91-57 only applies to modelers, and thus specifically excludes its use by persons or companies for business purposes.”

    You can read their policy statement here…http://www.faa.gov/about/initiatives/uas/reg/media/frnotice_uas.pdf

    Of course, Attorney Brendan Schulman would argue differently as spelled out above, but not for the same reasons you give.

    In the example you give, I assume offshore airspace is in the U.S. National Airspace System (NAS)is treated the same as onshore airspace. That could be an incorrect assumption, but I doubt it.

  3. I’m curious how movie makers, whether for documentaries or educational purposes, manage to use UAV’s for filming. Does anybody know?

    • Eric Gakstatter Eric Gakstatter says:

      I am too. My guess is that they are violating FAA rules like a lot of other people, and don’t know it (or don’t think they will be caught).

  4. Victor Villegas says:

    Hey Eric, I was at that same forum in Yamhill. Nice to see the interest, but you can tell people are frustrated with the current FAA stance.

    Some movie makers, as well as some realtors are using UAVs for irregardless of the FAA rules. Larger media companies take their filming to other countries without restrictions. The Amazon stunt about flying packages was filmed outside the US for that very reason. There hasn’t been any prosecution yet, so some are risking it. The court case you mention could have a major impact on the industry as a whole.

    • Eric Gakstatter Eric Gakstatter says:

      Hi Victor,

      It was a good event (and conveniently located for me). I agree with your statements.

      It’s going to be fascinating to see what operating rules the FAA comes up with in 2015.

      Eric

  5. Steve Kasten says:

    It is interesting that the FAA seems to think that the commercial use of a UAS makes it dangerous. The same device being flow as a RC hobby is legal/safe. Go figure.

    • Eric Gakstatter Eric Gakstatter says:

      Yes, for example I have an AR Drone 2.0 that I (or my kids) can fly all day long under 400 ft. However, as soon as I want to use the same AR Drone 2.0 on one of my golf course projects for generating video fly-throughs, it’s illegal even if I stay under 400 ft and follow the exact same rules as a hobbyist.

  6. B McClure says:

    I’m not against UAV flights. I’ve got a dozen missions I’d love to use one on today. However, just because you and I would be careful, prudent flyers doesn’t mean everyone else will be. FAA’s problem is that UAV hobbyists are a small number of flights. When these go commercial the number is going to explode.

    The general tone here and else where seems to be everyone is a responsible individual and will operate UAVs in a safe and prudent manner. This is obviously not the case. Given the list of violations in the FAA letter for the UVA flight I’d say the “pilot” got off lightly.

    Anyone even slightly familiar with flight protocals would be horrified to hear of any object, manned or unmanned, flying within 100 ft of an active helipad, under tree canopy, and through in use roadway tunnels.

    Activity of this sort, whether or not it actually happened in this case, demonstrates the irresponsibility of some individuals taking to the air. Without training in flight protocals and clearances it’s only a matter of time before a UAV is buzzing a commercial flight. Would you want to be on the airliner that sucked a UAV into its engine?

    Last example. Imagine everyone you see driving today as a UAV pilot. Some of the idiots on the road can’t drive a car. Would you let them pilot a UAV?

    This is everyone’s problem and not just FAA’s. Think about how you would keep idiots out of the sky, not just get yourself up there, and send those suggestions to FAA as well.

    Hopefully we’ll see commercial UAV’s soon. Boy, could I use them.

  7. David Shear says:

    Great job pointing some much needed light on the FAA legality side of using UASs. What the FAA decides is certainly of interest but in my mind the elephant in the corner is liability insurance.

    When I talk to those flying these devices about liability insurance they say they have it. If pressed, they will admit that there is nothing in their policy that specifically excludes it so they conclude they are covered. But when I ask if their policy, like all I have seen, has a clause where it will not provide coverage if you are doing something illegal, they have no response. Further, their lack of liability coverage could easily be extended to their customer as the customer is paying for the illegal operation.

    Before the liability risk is dismissed due to the small size of a sUAS, consider a driver getting distracted when they see one. That could result in a fender bender or someone on a bicycle getting killed. Either way it would be a mess and you would be fully exposed.

    I find it amazing that so many are willing to risk so much.

  8. Marcus UAV says:

    @David

    Liability insurance for someone being distracted by one? You are kidding right?

  9. David Shear says:

    @Marcus

    That is the question, are you covered or not? I don’t know. My insurance company does not think so. Basically I would be on my own. I find it hard to believe that such a case would not end up in court. When you have liability insurance, the insurance company goes to bat for you (up to your coverage limit). When you don’t, you are on your own.

    My point is that the insurance angle is rarely discussed in the UAS community. Are you willing to conduct business without liability coverage? Will your customers be willing to have you work without coverage?

    Yes it is a can of worms but it an important one.