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Here’s what you need to know before you fly a drone

CARLO ALLEGRI | REUTERS
CARLO ALLEGRI | REUTERS
An airplane flies over a drone during the Polar Bear Plunge on Coney Island in the Brooklyn borough of New York, Jan. 1, 2015.

Drones have skyrocketed in popularity over the last three years. The Consumer Technology Association predicts 2015 could go down as a defining year for the small aircraft and estimates that 700,000 drones will land under Christmas trees and will eventually take to the sky.

The proliferation of drones has upped the urgency for the Federal Aviation Administration to integrate the aircraft safely into the national airspace. As the FAA continues to finalize those rules, there are a few things drone operators, both commercial and recreational, ought to consider before flying.

Get permission first

From Amazon’s proposed drone delivery service to real estate marketing to construction site monitoring, many industries have been looking to find their own applications for drones. But they’d better let the FAA know first.

Until the FAA releases its final rule for drone operations (the deadline was Sept. 30, and the rule still isn’t out) in the national airspace, drones largely are not allowed to be flown for commercial purposes. Hobbyists and recreational operators, however, do not have to get permission.

In the meantime, businesses can apply for a Section 333 waiver to use drones commercially. The FAA considers these waiver requests on a case-by-case basis, and they often come with a set of rules for flying the drone, such as avoiding flights over populated areas and flying only during daytime.

The waiver also requires the operator to have a pilot’s license in order to fly a drone commercially, a requirement that will likely keep many small businesses from deploying drones.

“If you’re a company like Amazon, you just go hire a pilot. If you’re a small, four- or five-person business, that’s going to be a major obstacle if you don’t already have someone with a pilot’s license,” said Michael Bosse, the leader of the Portland-based law firm Bernstein Shur’s construction practice group and its newly formed drone law team.

He added that final regulations may relax that requirement and replace it with a less stringent drone certification training.

Even though commercial drone flights aren’t allowed without FAA authorization, many businesses fly drones anyway. But the FAA has cracked down on some violators. In October, the FAA levied a $1.9 million fine against the Chicago-based SkyPan International for 65 unauthorized aerial photography flights.

With a final rule overdue, Bosse said, for many people it may come down to whether they want to seek an FAA waiver or just wait for the regulations to change.

Don’t forget to register

Drone hobbyists and recreational operators have complicated FAA efforts to safely integrate drones into the national airspace. No official count exists for the number of drones already circling overhead, but industry officials wager it’s in the hundreds of thousands and will likely surpass a million this year if the Consumer Technology Association’s Christmas drone gift prediction pans out.

The FAA proposed basic rules in February for the flight of recreational drones, including that the aircraft weighs no more than 55 pounds, stays within sight of the operator and flies only during daytime. In addition, the rules proposed a requirement that operators first obtain permission before flying over someone’s property.

But the rule proposal remains just that — a proposal with no legal force.

As a result, many drone operators are unaccountable for safety violations. Between November 2014 and August 2015, the FAA recorded 764 incidents in which drones flew too close to aircraft, including one incident last March at the Portland International Jetport.

On Monday, the FAA’s drone task force, which included representatives from retailers Amazon and Wal-Mart and drone manufacturers Parrot and Precision Hawk, released its recommendation for a recreational drone registry.

Under the proposed policy, recreational drones weighing between half a pound and 55 pounds must be registered in a national database, operators must provide a name and address, and the drones must display a government-issued registration number. The policy, which is under review, could go into effect by the end of the year, separate from previous rule proposals.

“Now the FAA needs to decide whether they’re going to accept [the recommendations] as is or modify them,” Bosse said. “What will be interesting to see is which side of the holidays they will make the decision on — whether they do it on Dec. 20 or wait until after Christmas.”

So if you unwrap a drone this Christmas, you may need to let Uncle Sam know before you fly it.

Check local, state regulations

State and local governments have taken steps to prevent misuse of drones within their borders as the FAA dawdles. Drone operators should check state laws and local ordinances first to avoid unintentional violations, Bosse said.

According to the National Conference of State Legislatures, 45 states considered 168 bills related to drone use this year. So far, 26 states have related laws on the book.

These include a new Maine law requiring police to get a warrant before deploying a drone for an investigation, as well as a New Hampshire law that prohibits “PETA drones” from harassing hunters, fishers and trappers.

Some cities, such as New York, have considered ordinances to restrict drone use to protect residents from harassment and privacy violations. Bosse said Maine towns and cities could start considering their own ordinances to prohibit some drone uses much like they have with fireworks.

Respect people’s privacy

One issue that remains at the forefront of the drone debate is privacy. While people’s privacy in the home is already protected from aerial Peeping Toms, governments will likely work out other issues about drone surveillance in public places as they arise, Bosse said.

For instance, does a reasonable expectation of privacy exist if someone is walking down the street or driving in public? Bosse said it’s an experimental time as old case law will be tested as these cases arise.

“I don’t know how that’s going to flesh out. That will ultimately turn on what society decides is a reasonable expectation of privacy,” Bosse said.

 



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