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As drone sales soar, legal and regulatory atmosphere remains turbulent

January 27, 2016
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drone-factbox.jpgOne million drones were expected to be sold over the holidays, putting as many as 5 million in private hands worldwide, with the United States the top market.

Shortly after the federal government predicted a million sales late last year, the Federal Aviation Administration announced in December that all drones weighing a shade over half a pound must be registered. Later this year, the FAA expects to release comprehensive drone regulations.

Fort Wayne aviation attorney J. Michael Loomis said he’s surprised by the explosion in private-use drones over recent years. “I think the technology got pretty far ahead of the regulations,” he said.

Loomis is past president of the National Transportation Safety Board Bar Association, most recently in 2010. Drones never came up. “As recently as five years ago, those conversations were not happening among lawyers involved in aviation,” he said.

Can you shoot them?

Now, attorneys are at the horizon of what could be a new body of law, some of which may be rooted in the well-publicized case of a Kentucky incident. William Merideth shot down a drone owned by David Boggs as he flew it about 200 feet in the air over Merideth’s property.

Merideth initially was criminally charged, but a judge ruled he had a right to shoot a drone over his land. Boggs has sued in federal court, seeking a declaratory judgment in his favor, including a ruling that someone can’t shoot a drone out of the sky when flying it as he did, and perhaps some clarity for the burgeoning industry.

“This is an important enough issue we’re hoping the court will give us a little more guidance,” said James Mackler, who represents Boggs and leads Frost Brown Todd LLP’s unmanned aircraft systems practice from the firm’s office in Nashville, Tennessee. The lawsuit recognizes the tension between the need for national airspace and private property rights and asks the court to draw some lines.

“The ruling of the Kentucky District Court and assertions made by (Merideth) regarding his belief that his actions were justified because (Boggs) was engaged in trespass and invasion of privacy are in direct conflict with established federal law governing the regulation of manned aircraft and airways and cannot be resolved without addressing how this law applies to unmanned aircraft,” the complaint says. The suit, in the U.S. District Court for the Western District of Kentucky, is Boggs v. Merideth, 3:16-CV-6.

Merideth, who stands by his action and since has gained a modicum of notoriety billing himself “Droneslayer,” could not be reached for comment. At IL deadline, no attorney had entered an appearance on his behalf in the case filed Jan. 5.

Navigating a course

Indianapolis aviation lawyer Robert A. Duncan, of counsel at Norris Choplin Schroeder LLP, said the FAA has received thousands of comments regarding proposed drone rulemaking and has processed thousands of Section 333 exemptions. Those Section 333 exemptions are licenses that allow pilots in good standing to operate drones for commercial purposes within a set of strict regulations.

“It’s such a developing area. It’s kind of cliché, but it changes daily,” Duncan said of drone regulations. Congress charged the FAA with developing a regulatory framework, and the agency is working toward finalizing rules in June. Current rules generally stress a drone pilot must maintain line-of-sight visual contact, fly at limited altitudes and away from airports and stadiums.

“Some of the irresponsible operators have placed these things in close proximity to manned aircraft,” Duncan said. “There are numerous reports of pilots encountering drones at 2,000, 3,000 feet.”

The FAA hasn’t been shy about fines, he said, noting a recent case in which the agency leveled a $10,000 fine against an operator who flew a drone for a commercial purpose without a Section 333 exemption.

“The FAA is going to have the authority to impose a civil fine of up to $27,500 and criminal penalties of up to $250,000 in fines,” Loomis said. “Obviously what they’re trying to do is deter interference with the federal airspace system.”

Duncan said as the FAA figures out where and how drones can fly in a national framework, the seminal case regarding national airspace, United States v. Causby, 328 U.S. 256 (1946), likely will be a guide. That ruling gives owners control of the airspace on their property they can reasonably use, he said, but that’s a variable standard that will need further refinement as the use of unmanned craft expands.

“Your property rights end where navigable airspace begins,” Mackler said. In the Boggs case, “We’re asking the court to help us determine what is the navigable airspace as it applies to unmanned aircraft. … A foot off the ground is probably trespassing, and 1,000 feet off the ground is not, and interestingly, the court has never set a number. They leave it to the FAA to determine the navigable airspace.”

Sky’s the limit

In the Indianapolis Frost Brown Todd office, attorney A.J. Correale has teamed with Mackler and others in the firm’s unmanned aircraft systems practice to counsel clients. “James and I are focused on trying to get in front of this now, talking to several clients and potential clients in the entertainment space,” Correale said. He sees an inevitable widespread use of drones in the filming of movies, television and commercials, and in fields from law enforcement to agriculture.

“My biggest concern is that a client hires a third-party contractor to film a concert or a commercial or whatever and they do not have either their 333 exemption or they’re not compliant with all the restrictions under the 333 exemption,” he said. That would open a client to a chance their insurance would be void in the event of claims. By and large, he said clients have little knowledge of the requirements for using a drone for commercial purposes.

While the FAA is writing rules for drones, some states and municipalities aren’t waiting, and lawyers in the drone area must be aware of those, Correale said. Los Angeles, for instance, limits drone flights to 200 feet above ground, and Tennessee forbids drones from surveillance of private property or flying over events with more than 100 people without permission.

But as drones become more commonplace in situations such as monitoring and responding to hazardous spills, federal regulations are needed, Mackler said. “We will all benefit from this clarity. We all agree we don’t want someone shooting down a drone searching for a lost child or responding to an emergency.”

Beyond the horizon

Current regulations limit ambitious plans such as Amazon’s proposal to use drones as delivery vehicles. Those systems would require satellite controls that are not currently in the FAA’s designs. Nevertheless, Mackler envisions a day in the future when drones will be visibly zipping across the low-altitude sky and people won’t think much of it. He noted entities such as Google, Facebook and Wal-Mart are helping drive the industry.

Duncan’s not so sure drones ever will be ubiquitous. “The FAA is going to have to figure out how to regulate that so you don’t impact aviation safety.”

But as the courts have an opportunity to draw some lines concerning the use of drones and the rights of property owners, Mackler said the issues in the Boggs case aren’t all that unusual.

“We are at the infancy of the industry,” Mackler said. “Just like with manned aviation, a lot of questions were resolved when there were problems, and they work their way through the courts. ... I think we’ll reach a point where not everyone is happy, but where everyone pretty much agrees what the rules are.”•

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