Rage Against the Machine: Quadcopters vs. the FAA

UPDATE7/24/2014: There has been a lot of important news over the last two months about UAVs and Drones, though nothing that changes what is on this blog entry. Let's review.

UPDATE 5/8/2014: Now that makes sense -- let manufacturers help with safety. Even though the FAA has no regulations on drones, new DJI Phantom quadcopter drones won't fly near major ICAO airports for safety (new firmware update prevents them from doing so). Problem solved.

UPDATE 5/5/2014: The FAA is now issuing a fine against a drone pilot, quoting Reg # 91.131(a)(1) which says that any "aircraft" flight is illegal without permission from local Air Traffic Control clearance. We already knew this (that's the "5-mile" rule I talked about below, though they clarify it's from 0-10,000 feet). But the person who was fined wasn't in Class B (according to this article). This could be interpreted as saying that flying any drone or RC plane in an unspecified distance from a major city (which essentially means everywhere) is illegal -- and that's probably news to RC operators!

UPDATE 4/22/2014: The FAA has been sued by Kramer-Levin so that they will rescind order (email) claiming drone use is illegal in case of Search & Rescue.

UPDATE 4/8/2014: AccuWeather announces Live DroneHD integration with our StoryTeller Interactive Touchscreen News Solution, meaning that if you are a TV station using a drone, you can transmit the video live to a touchscreen on-air.

UPDATE 3/6/2014: The commercial drone lawsuit has been dismissed, validating what I said below: The FAA has no control over radio-controlled aircraft. As the author of that link points out, however, your use could still be temporarily restricted by law enforcement, and observing the voluntary rules the FAA outlined below is a good idea.

UPDATE 2/6/14: Several Freedom of Information Act requests have been made to the FAA, to see what exactly their "sternly-worded letters" to amateur drone pilots say. You can read some of the 23 letters that the FAA has sent out here [PDF], and I agree with most of what Patrick McKay says in this blog (they mostly are targeting commercial use, and they are bending the law to sound threatening). He also says that there have been five visual reports from aircraft pilots who have seen drones. That's not good. Regardless of the (lack of) laws, I do recommend below that people not "do stupid stuff" and that certainly includes flying near planes!

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ORIGINAL BLOG (February 5, 2014):

After testing my own quadcopter for storm chasing purposes for a couple of months and delving more into the regulations over them, I've come up with some answers to frequently asked questions that people have asked (and often answered incorrectly), that I haven't seen covered a lot elsewhere in the media. I give the background on each question below, so please read further if you need more information.

UAV (Drone) Frequently Asked Questions:

Q: What FAA laws or regulations govern the flight of UAVs?

A: There are none. The FAA has admitted this. There is only a 33-year-old voluntary directive and a law that urges the creation of regulations in the future.

BUT: The FAA aims to put regulations in place by September 2015, a date which industry insiders say will slide further into the future and has already missed key deadlines. The future is very uncertain and the new regulations could do anything from "allowing everybody to fly drones" to "restricting drone and model airplane operation to require a pilot's license."

Is it illegal to fly a model airplane or quadcopter out of the box?

A: No. If it were, they would be regulated like drugs or weapons.

BUT: A representative of the FAA called me, off an internet tip about my 2,000-foot flight. Oddly enough, he declined to go on the record but said unequivocally "YES," it is illegal to fly a UAV out of the box. He said there is a federal law 112-95 "SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT" [PDF] that was put on the books in 2012, that says that you can't fly a UAV without obeying a set of community rules after joining a "nationwide organization" that has established flying rules.

What he neglected to mention is that the law's intent is to urge FAA to make those guidelines; the guidelines themselves are not law. He also admitted the FAA doesn't have the resources to prosecute cases involving UAVs. When they receive a complaint from the public (including anonymous internet complaints, regardless of proof of offense) they are required to call the person responsible and "educate" them. Brendan Schulman, a drone lawyer (see more below) says the point of Sec. 336 (mentioned in the FAA) is actually to make the FAA leave hobbyists alone and dictate government use instead -- and says being "in compliance" with an organization means you adhere to their guidelines, not that you have to join them.

Q: What is the height limit for UAVs?

A: There is none.

BUT: According to the representative from the FAA who called me, all of the organizations that are referenced in the 2012 FAA Modernization Act set a limit of 400 feet. However, there is no approval process for these organizations or their guidelines, and I can't confirm that every organization (past, current and future) has the 400-foot limit. UAVs are generally approved to fly in Class G airspace, which typically extends to 1,200 feet. UPDATE: Per Paul's comment, it can be as low as 700 feet.

Q: What other guidelines should UAV hobbyists adhere to?

A: Other suggestions in the 112-95 SEC. 336 [PDF] FAA Modernization act include: A weight limit of 55 pounds for the UAV; don't interfere with other aircraft, and don't fly within 5 miles of an airport without prior authorization. The latter two guidelines are more likely to get you in trouble than anything else, because they deal more with flight safety directly. Flying at a height or distance where you lose line-of-sight of the UAV (around 1,200 feet, in my experience) is one of those "stupid" ideas I mention above. In theory, aircraft could be flying at this height (I suppose, though if a large aircraft is flying 1,000 feet above my house, we've got other problems!) and if you down an aircraft with a UAV you can bet you're going to be in some trouble.

All said, as of this date, if you use common sense and don't do anything stupid, you're probably fine.

Q: Can UAVs be used for commercial purposes?

A: Yes. There are hundreds of companies currently doing this unabashedly, including famous television shows (such as "Gold Rush" and "Tornado Chasers") and many movie production companies. There are no federal laws or FAA regulations on the books.

BUT: There are some state laws, most notably in Texas. The FAA has scared at least one company into ceasing flights by inferring that what they are doing is illegal, but they have no authority to prevent this use, and it probably won't hold up in court (although there is no precedent yet). The FAA requested people not use drones for commercial purposes via a 2007 "Policy Statement." From what I understand, they did this because, if there is an accident and the FAA is asked, they will say that they don't support that activity, but their Policy Statements are not enforceable.

Q: Can UAVs be used for educational or journalistic purposes?

A: Yes. There are no federal laws or FAA regulations on the books regarding this use.

BUT: The FAA has scared at least two universities into ceasing flights via "sternly worded letters," but they have no authority to prevent this use, and it probably won't hold up in court (although there is no precedent yet). There is a process by which you can obtain a license for use if you are an educational institution, but it is a long process that results in a very restrictive use case, that will not work for journalists. The Poynter Institute did a recent webinar that stated that journalistic use was illegal, but failed to back it up with specific regulations or laws. I will say this: Unless you run your own journalistic company or university, it may cause more trouble than its worth.

Q: Can UAVs be used for government purposes?

A: Yes. 112-95 SEC. 336 [PDF] SEC. 334. PUBLIC UNMANNED AIRCRAFT SYSTEMS, subsection "C" says that government agencies can, as of June 2013, file paperwork to get authorization to fly a drone, under 400 feet, line-of-sight, and farther than 5 miles away from airports. The only problem is that this is only for one-time use, and could take up to 60 days to approve, so ideas like the one I had below about storm surveys is not doable.

BACKGROUND INFO:

(Photo: A DJI Phantom that I retrofitted with an ION Air Pro camera for Henry Margusity to go storm chasing)

The answers to the questions above came mainly from four places. First, the unsolicited and mysterious phone call mentioned above, from the unnamed FAA representative. I was disappointed that this government employee gave me false information and refused to go on the public record.

Second, my Skype interview with Colin Guinn (formerly) of DJI. For more information on the legalities of drone photography, watch this interview with Colin on YouTube, where he goes over many of the same things that he did in my interview. Colin was also recently interviewed by Fox Business, but it was brief).

UPDATE: Colin Guinn was reportedly fired by DJI on Dec. 18 but there's not much information online. Secondary reports say that a secretary confirmed this over the phone, said the company was reorganized and moved to L.A., and also said that he would be starting a new venture. This rambling YouTube video says that there is a rich tapestry of litigation between Colin & DJI, including a restriction that has halted sales and service for DJI quadcopters, which is a shame.

My third source was a phone interview with Brendan Schulman, from the law firm Kramer Levin Naftalis & Frankel, who is handling the now-famous case where the FAA has fined a model airplane operator (and, in fact, opened an entire practice for drone cases in December). Brendan argues in his case that the 2007 memo is a "Policy Statement" and is not enforceable by law. Brendan told me that the idea of regulating a five-pound foam toy is ludicrous. The FAA's claim (since there are no regulations that govern them) is that they were flying an aircraft recklessly, but the real reason the FAA tried to shut his client down was because they UAV was used for commercial purposes, something the FAA eschews.

The fourth source was this: On Nov. 4, I attended the Poynter Institute's webinar "Drones for Reporting and Newsgathering." The webinar featured Matt Waite from the University of Nebraska-Lincoln. Matt runs the Drone Journalism Lab and is the guy to talk to if you want to use (or cover in a news story) drones for journalism. Other highlights from the webinar I'll paraphrase in my own words (unfortunately, the webinar requires a Poynter login and fee to watch).

They started out by saying that drone journalism is "definitely illegal but coming soon" but this seemed to be tied only to a "sternly-worded" cease-and-desist they received after photographing (here comes the weather angle) the Plains drought last year from the air. They didn't quote any specific FAA regulations, but did mention the mysterious "400-foot rule" that was part of the 1981 memo. Other than that, hobbyists can do whatever they wish, they said. Poynter seemed to have built their own camera drone themselves, which absolutely floored me, giving the technology out there, but I suppose this might have been a year or two ago before DJI came into being.

They said flying UAVs is illegal for commercial purposes, even though there are dozens of companies springing up which offer commercial drone services, and no one - journalists and others - can even apply for a license from the FAA. An exception is employees of a public organization (for example, their state-funded journalism university), but even then, it's a royal pain and they still haven't obtained theirs.

Because of these restrictions, for now, they recommended that journalists should not fly drones, but rather write about the confusing regulations, which I hope I'm doing here.

FAA regulations don't violate the first amendment's "right to photograph" because journalists aren't being singled out and because there is a safety aspect involved, according to Poynter. The U.S. is behind on drones; Australia only has you fill out a web form to fly a drone less than five pounds.

By late 2013 or early 2014, Matt believes that UAV rules are coming for small drones (<55 pounds, as previously defined by the FAA). NOTE: Obviously this deadline has already passed, but the FAA did finally take the first step on Dec. 30, 2013: selecting test sites. He sounded more optimistic than Colin from DJI, but those regulations may only solve the problem for journalists, not commercial users. Worst case: It still could require a pilot's license or flight plan, and state regulations could muddy the waters further, making it impossible for anyone (perhaps even a hobbyist) to fly a UAV.

They also had brainstormed some use cases, many that were similar to what Colin and I listed in this blog. While drones seemed to be used successfully to cover the Colorado floods, media operations were restricted after the Joplin and Huntsville tornadoes.

Matt says he has flown in 30-mph winds at least (not something I've been brave enough to try); sustained winds less than 50 mph should be theoretically possible. Flying in snow or rain is a terrible idea due to exposed electronics. This by itself might be what ends up killing Amazon's idea about delivering packages by drones (aside from the obvious problem if they attempt to deliver to the door: people will grab the drones and resell them whole or in parts!)

A word about words: I originally included the phrase "Super-Secret" in the title of my first blog entry on drones, tongue-in-cheek, because the quadcopters are were getting a lot of bad press in October 2013. In the span of a week, the toys had crashed in both New York City, Syndey, Australia, and York, Pa. (unconfirmed report). The existence of these quadcopters is no secret to RC enthusiasts and many storm chasers - but the public and media have never heard of them, so they paint them as large, super-suspicious "drones" which are probably from the government, and call the police and the FAA, who has labeled them "unmanned aerial drones." These are scare tactics used by people who don't understand the technology (the Amazon announcement hopefully helped). I have since removed that phrase from the title, in favor of directing people to this blog entry.

*An alternative acronym, Unmanned Aerial System, used only by the FAA takes into account the transmitter as well as the receiver, as opposed to the more commonly used "UAV," Unmanned Aerial Vehicle, as explained by the Poynter seminar.

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