Drone practices not up in the air, yet

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By Douglas Levy
Dolan Media Newswires

Until the Federal Aviation Administration releases regulations, unmanned aerial vehicles — more commonly called drones — won’t be sharing the same space as planes.

But some attorneys are preparing for the day when drones will be as routine a tool for everyday business as a smartphone.

Their clients already are visualizing it. Filmmakers and photographers want drones for getting high-ground shots without the expense of a crane or helicopter.

Farmers and road construction companies want them for land surveying.

Utility companies want them for safer inspection of utility lines and easements.

But the FAA in June announced that it won’t be able to meet a September 2015 deadline set by Congress for regulations to allow drones regular access to U.S. skies. The standards would include the safety of drone design and manufacture, procedures for air traffic controllers to guide them, and criteria for training on-the-ground “pilots.”

Only hobbyists can use drones. Commercial use, such as for deliveries or for monitoring a site, is prohibited.

That hasn’t stopped lawyers from making their clients aware of what they can and cannot do with, or for, drones. One Michigan law firm even has formed a practice for clients who manufacture and use drones; it’s believed to be the only one of its kind in the state.

“These startups need, right now, guidance as far as what is it the FAA is either proposing or has proposed, or what is it they’re saying either directly or implicitly,” said Christopher Baker, who chairs Varnum LLP’s UAV industry practice group, which launched in 2013. “There’s a significant amount of capital waiting for that guidance. For that reason, there is a current need for legal service in this area.”

Yet, other attorneys are approaching with caution, focusing on the specific drone-related details in their own practice instead of reaching for an all-encompassing one.

“I don’t know that there will emerge a boutique drone firm, but I’d agree that there are plenty of practice areas that have to pay attention now, and my practice certainly is,” said Joseph Voss, who heads Clark Hill PLC’s Entertainment Industry Team.

Conversation points

Drone use has ramped up as of late. In late 2013, Amazon made headlines when it announced it was testing a 30-minute delivery service via drone.

Meanwhile, in March a judge with the National Transportation Safety Board dismissed a case in which the FAA wanted to fine a drone operator $10,000 who was capturing aerial foot-age of the University of Virginia, as part of a campaign for the school’s medical school.

Judge Patrick Geraghty ruled that the FAA’s commercial drone prohibition is not actually federal law, and that the FAA has no authority over small unmanned aircraft.

Shortly after that, Metro Detroit florist Wesley Berry Flowers announced it would test delivery via drone, while Amazon asked the FAA to approve more extensive tests on company property (tests can only commence on one of six FAA-approved sites across the country).

Wisconsin is one of more than 30 states with pending or already adopted drone legislation. Wisconsin Senate Bill 196, the Drone Privacy Protection Act, became law effective April 10. It requires law enforcement agencies to obtain a warrant prior to using an unmanned aircraft system to collect evidence, when an individual has a reasonable expectation of privacy. The bill also prohibits individuals from using a UAS “with the intent to photograph, record, or otherwise observe another individual in a place or location where the individual has a reasonable expectation of privacy.”

Through it all, attorneys have been keeping aware of the progress.

“Suddenly it’s coming up in conversation, just in the sense that people are trying to get a feel for the capabilities,” said Nicholas Reister, who chairs the Agricultural and Agribusiness Industry Team at Smith Haughey Rice & Roegge. “With the recent groundings, that’s been more for a conversation, not necessarily from farmers but from companies who actually fly the drones for the farmers.”

He said that his agribusiness clients would use drones for everything from assessing irrigation needs and nutrient levels in soil, to determining whether crops need more or less fertilizer. In addition, wind turbines companies can monitor their towers more safely.

Reister said he is keeping an eye toward how firms can address clients’ questions on drones, but said he is uncertain whether it has reached the point whether any subspecialty is necessary.

“It’s more a new tool for farmers,” he said, “similar to a new, revolutionary implement. I don’t know that there’s a new legal field that emerges, maybe more the licensing and regulatory issues with the FAA than the farmers’ use of them.”

Aviation law

Stephen Tupper, who practices aviation law at Dykema Gossett PLLC, said that for all the drone hype, he sees the situation first and foremost as an extension of aviation law.

“I just don’t think it’s going to be as complicated as many folks make it out to be. … It’s going to be, apply, get certified, get approved by the FAA and you’re still not going to have a clear idea even after the FAA regs come out, because there’s still going to be an approval process,” said Tupper, who is chair-elect of the Aviation Law Section of the State Bar of Michigan.

“All the regs will give you broad strokes and probably say something about the FAA approval process. Aviation lawyers know a great deal about the FAA approval process because by the time somebody needs a lawyer, that’s usually what we get brought in to do.”

But he added that he hopes the FAA gives some clear and reasonable safe harbors that people can operate within, making it a growing area of the economy.

“I just don’t see it at the moment,” Tupper said. “But I hope I’m wrong and we look back three years from now and they say, ‘This stuff is a lot more exciting than we thought and Tupper was being a curmudgeon.’”

He explained that the FAA came up with two basic sources of law for drones. The first is a 1981 advisory circular that said drones cannot be higher than 400 feet above ground level; cannot operate within three miles of an airport unless the airport operator has been notified; and the UAV operator must give way to real aircraft operators

Then in 2012, the FAA put together a reauthorization bill, which included a safe harbor statute that said the FAA administrator can’t make rules for model aircraft under certain circumstances and gave a definition of model aircraft.

Voss said he sees this as unfair to businesses that can afford both drones and safety training.

“Most people think that’s really not the intent of the FAA, and not the intent of Congress that empowers the FAA, to completely shut down [unmanned] aviation. Nevertheless that’s what we’re sort of looking at,” he said.

“You can fly these for hobby purposes, and casting a wide net around commercial stuff, that really has no practical difference,” he said. “If I build a helicopter for a hobby, it’s OK, but if I charge $100 for some footage, we’ve violated [regulation]. It’s really related to safety.”

Wisconsin Law Journal staff also contributed to this report.