Home / Legal News / Aerial drones fly state’s skies, go into legal gray area

Aerial drones fly state’s skies, go into legal gray area

A drone hovers over The Corners of Brookfield work site on Aug. 21 in Brookfield.

A drone hovers over The Corners of Brookfield construction work site on Aug. 21 in Brookfield. Electronics marketers forecast drone sales will reach 700,000 this year, and with it could come new legal quandaries. (Staff photo by Kevin Harnack)

The Capital Times

COTTAGE GROVE, Wis. (AP) — On a recent golden autumn morning, a half-dozen members of the Madison Area Radio Control Society basked in lawn chairs on a former cow pasture in Cottage Grove where they fly their planes when the quiet was interrupted by a buzzing sound.

“Mosquitoes!” shouted one of the retirees, setting the others to good-natured laughter. The faint, high-pitched buzzing wasn’t from an insect that survived the frost, but a pair of four-bladed flying drones zipping across the field on a demonstration flight.

Operated by a small, mostly younger, percentage of the club’s members, most of whom fly model fixed wing aircraft, the presence of drones flying at the MARCS field reflects the exploding popularity of the craft with hobbyists nationwide.

Using drones that are easy to fly and readily mounted with cameras that record the trip from a bird’s eye view, “we fly as if we are in the aircraft,” said Charlie Toms, 43, a hobbyist racer who counsels rural electric cooperatives on the potential of drones for power line inspection as part of his job.

It’s not just recreational use of drones — also known as unmanned aerial vehicles or UAVs — that is booming. Commercial use also is rapidly expanding, with photographers, farmers, insurance firms and power line companies getting on board with the technology. Search and rescue and emergency response agencies also use the vehicles to inspect broad areas and difficult terrain from the sky.

Electronics marketers forecast drone sales to reach 700,000 this year, an increase of two-thirds from 2014, according to the Consumer Electronics Association. Many of those drones will end up under Christmas trees next month.

And the aircraft are not just making business news. Incidents of drones crashing into the stands at the U.S. Open Tennis Championship, ferrying contraband to an Oklahoma prison and being taken down with a shotgun in Kentucky are making headlines, too. Chicago based SkyPan International is facing a $1.9 million fine from the FAA for buzzing the streets of major cities to capture photos and videos of real estate.

With more mishaps and hijinks — and potentially dangerous misuse — showing up on YouTube every week (just Google “drone crash”), the Federal Aviation Administration moved to step in and last month announced its plans to require registration of recreational drones.

Some hobbyists who fly traditional model airplanes worry that the relative ease of operating drones has made them too accessible to those who might abuse the technology.

“You can take it right out of the box and open it and take it off in the driveway if you want,” Bill Pritchett, educational director for the Academy of Model Aeronautics, said last month.

The AMA prefers education to regulation, Pritchett said, and has worked with the FAA on the “Know Before You Fly” educational campaign, as well as consulting with the agency on the proposed rules for recreational use. The 80-year-old organization has about 180,000 members, 30 percent of whom fly drones.

The proliferation of unmanned aircraft is going to change air traffic, said Jeff Baum, president of Wisconsin Aviation, which hosted a seminar on the FAA recreational drone registration proposal last month at the Dane County Regional Airport.

“If all the airplanes in the sky at any time were all put over the state of Texas, there’d still be a mile between each one,” Baum told The Capital Times. “That’s going to change pretty soon. We’re going to be sharing airspace with a lot of other objects.”

“None of us knows where it’s going, but drones are exploding. And the FAA is trying to get its arms around the issue,” Baum said.

When Performance Hobby Center in Monona first stocked model drones three years ago, not a single one sold, co-owner Blaine Tessmann said. Sales picked up the following year, and this year they have easily doubled from 2014, he said.

When quadcopters — four-rotor helicopters popular with hobbyists — were new, they were associated with military drones, Tessmann said.

“In the beginning all you heard were negative things — that they would be used for spying. But they’re just another flying apparatus. And they are fun.”

Today, drones in the shop — ranging in price from $80 to $2,000 — are popular with all kinds of hobbyists, adult and teenagers, he said. Some buyers are radio-control hobbyists who worked with cars or planes in the past, others are photographers who want to expand their portfolios.

Drones did not have a big season at his shop over the holidays last year, Tessmann said. But they could be a big hit this year, he said.

Attorney and pilot Russ Klingaman teaches an aviation law class every other year at Marquette University Law School. When he taught the class in 2013, “drones were a thing of the future. The focus was on how the U.S. military was using them,” Klingaman said.

First publicly acknowledged by the Obama administration in 2012, military use of drones remains a controversial practice and target of protests. The Wisconsin Coalition to Ground the Drones and End the War regularly holds vigils at Volk Field at Camp Douglas, the site of the Tactical Unmanned Aerial System facility, home to the RQ-7B Shadow Unmanned Aerial Vehicle. The Shadow, which is used for reconnaissance and surveillance, clears the way for the armed Predator drone that has been deployed in the Middle East, peace activists say.

Some commercial and recreational users of unmanned aerial vehicles wince at the word “drone” because of its associations with bombing and spying. But the development of increasingly affordable and easy to operate small drones over the past few years has brought them to your neighborhood.

The civilian use of the aircraft first came on the federal radar in 2012, when Congress passed the FAA Modernization and Reform Act. That law provides for exemptions from its requirements for conventional aircraft to allow for the commercial operation of drones, Klingaman said at the Wisconsin Air seminar in October.

A Section 333 exemption is needed to use a drone for any commercial or business purpose, which means pretty much any kind of compensation, Klingaman told the airport group, many of whom were pilots. The FAA’s online count of Section 333 exemptions granted stood at 2,213 nationally as of Nov. 6. Klingaman said more are being granted every day.

Drones in commercial use can be flown at heights of up to 400 feet and must be at least five miles from an airport, Klingaman said. Distance from persons not participating in the flight isn’t specifically regulated, but he advised commercial operators to stay at least 500 feet away.

Commercial operators currently are required to have a pilot’s license. That, Klingaman noted, gives the FAA a way to penalize those who break the rules — pull their licenses.

That prospect impressed a private pilot at the Wisconsin Aviation seminar, who had been hoping for a drone for Christmas, but said it wasn’t worth jeopardizing her pilot certification.

Legal footing for the FAA to regulate recreational drones grew from a case involving the reckless operation of a drone near the University of Virginia in which the National Transportation Safety Board last year ruled that unmanned aerial vehicles were “aircraft,” which the FAA concluded put them under its administration.

The FAA published proposed regulations for commercial and recreational use of drones early this year. When the agency fell behind schedule in finalizing the rules, it felt heat from a congressional subcommittee.

“Allowing anyone to fly a drone on or near the nation’s airways is like letting people drive remote-control model cars on the interstate,” Rep. Rick Larsen, D-Washington, said at an Oct. 7 hearing before the House Aviation Subcommittee. “Unless more is done, it’s not a matter of if something will happen, but when.”

But FAA officials said their hands are tied without a formal registration process. Despite more than 600 reports of “near misses” with commercial airliners so far this year, the lack of any registration database hampers the FAA’s ability to prosecute improper drone usage, even when pilots can see and hear the device from an airliner cabin, according to FAA Deputy Administrator Michael G. Whitaker.

On Oct. 19, the Department of Transportation announced a task force would be creating a process for registration of recreational drones, with a deadline to complete the task by the end of November.

Meanwhile the FAA rulemaking process continues, with retailers like Amazon and Walmart a part of the process, working to carve out provisions that will make their proposed delivery-by-drone systems possible.

“There’s incredible lobbying behind the scenes,” Klingaman said. “Your guess is as good as mine what the rules will look like a year from now.”

Meanwhile, some kind of registration is needed, he said.

“We’ve got to find a way to make sure that people who buy drones are educated.”

By providing an email address to the FAA, drone owners could be informed of rules and receive bulletins of special restrictions, such as when Air Force One flies into a nearby airport, he said.

“The other thing is finding the people who are perpetrators. If someone flies a drone into the windshield of a semi-tractor trailer that causes a back-up on the highway, it would be nice to find out who owns that,” Klingaman said. “Right now, there’s a lot of potential misconduct and actual mishaps and the people go undetected – that’s not fair to the rest of us.”

Madison freelance photographer Eric Tadsen got his private pilot’s license in 1999, so he was well-positioned to leverage that credential into an FAA waiver to fly a drone equipped with his camera.

Clients are increasingly demanding the bird’s-eye view of a drone, a perspective many people had not seen before proliferation of the devices changed the range of photography.

“I really enjoy it,” Tadsen said. “It’s reawakened my enthusiasm because it’s so much fun to do.”

He can’t imagine, though, that many photographers would go to the expense and effort of getting pilot certification – as the FAA now requires for commercial users – just to extend their range of offerings.

Tadsen is hoping for a big 2016 shooting photos from the drone, because he figures by the next year that FAA will have changed its regulations to require some kind of drone operation certificate with less training than is required of pilots. Key in such a certificate would be education in airspace regulations, or where aircraft can and can’t fly and why.

“Lay people just don’t have any understanding of air space,” Tadsen said.

Confusion about FAA rules governing drones is one reason the University of Wisconsin-Madison abruptly grounded unmanned flights days after the announcement of plans for a registration requirement.

Campus officials also pulled a five-month-old policy on drones, administered through the Office of Vice Chancellor for Finance and Administration, which had prohibited unauthorized drone use inside of buildings and above open-air events or public open-air spaces such as the Memorial Union Terrace. General liability coverage of $2 million per incident was required.

A link to the policy on the UW-Madison website now lands on a notice saying the operation of unmanned aircraft/drones by students, staff or outside entities is not permitted on campus, inside or out.

“This is due to both Federal Aviation Association requirements, and risk management/liability issues,” the notice states.

University officials won’t say anything more about how they may change the policy.

Chris Johnson, an associate lecturer in the College of Engineering, told the group at the Wisconsin Aviation seminar last month the that he was working with UW-Madison lawyers and the chancellor’s office to allow university scientists to fly as commercial users.

Several public universities — Idaho, Iowa, Oregon and Wyoming — have already applied for and received Section 333 exemptions for commercial use that allow them to fly drones for “aerial data collection” for educational and research purposes.

FAA rules provide a separate classification for drone use by public authorities and interest by those agencies is growing, said Brian Landers. Chairman of the Department of Criminal Justice at Madison Area Technical College, Landers provides training in drone operation and regulation to area public safety agencies.

“We’re the only technical college offering this kind of training in the U.S. that we’re aware of,” Landers said. The cost — $70 for two days — is a fraction of the cost for training from private companies, which can run thousands of dollars, Landers said.

Interest by law enforcement agencies has been primarily for search and rescue and investigation of crash scenes, Landers said. The American Civil Liberties Union, for one, has raised the alarm over potential privacy and due process violations with the use of drones for surveillance by law enforcement agencies.

But that’s not how local agencies are talking about using drones, Landers said. And besides, the battery life in the more affordable vehicles is too short to make them practical for surveillance.

Many governments are talking about sharing the devices and expertise needed to use them, Landers said. “They’re saying the frequency of use is going to be relatively rare — let’s just buy one.”

When a convenience store robber, believed to be armed, fled into a marshy area near Tiedemann’s Pond in Middleton last May, police used a drone to locate him. But it was the Middleton Fire District – not police – that flew a drone equipped with a camera over the cattails where he was apprehended, said Fire Chief Aaron Harris.

The DJI Phantom 3 his department operates, purchased for about $1,500 with a donation, “is fantastic for exactly what we are using it for,” Harris said.

“The technology shows us a 360-degree view to see if a fire is advancing on us or if now we have a victim on the backside of the structure,” he said. The drones obviate the need to use expensive and potentially dangerous equipment like aerial ladders, he said, and are effective in training as well.

Harris credits his fire commission, whose members “aren’t afraid of technology,” for readily approving purchase of the device. Further donations already in hand will finance the planned purchase of another drone to be equipped with a thermal imaging device to enable night-time searches for lost people.

The department is getting lots of calls asking about its drone, Harris said. “The fire services are steeped in tradition – changes like this do not come easy to most.”

Dane County Emergency Management bought a drone a year ago, but has not yet had opportunity to use it. “It’s a tool we have high expectations for,” said J. McLellan, population protection planner for the agency.

If the technology had been available in 2005, for example, when a tornado cut a 17-mile swath through Stoughton, emergency responders could have reacted more quickly.

“If you can fly over it, you can learn a lot more, faster,” McLellan said.

City of Madison police have not acquired drones, nor have the UW-Madison police.

“We have no plans to purchase one,” said UWPD public information officer Marc Lovicott. But his department does get calls about drones on campus every once in a while, he said.

“For us, it’s a safety issue. We don’t need a drone hovering over the Memorial Union come crashing down on people,” Lovicott said. “It’s also a nuisance … folks don’t come to the Union expecting they’re going to deal with a drone buzzing overhead.”

FAA rules were revised a year ago to specifically prohibit drones from flying over stadiums with capacity of 30,000 or more where professional baseball or football games — and NCAA Division I football — are being played.

That didn’t stop the pilots of the small drones spotted over games at Camp Randall Stadium last October or this September. They have not been identified, Lovicott said.

Federal law permits states and municipalities to pass their own laws governing drones.

A 2013 state of Wisconsin statute prohibits law enforcement agencies from using drones for surveillance anywhere an individual would have a reasonable expectation of privacy without a search warrant. The law specifically allows drones to be used for search and rescue, to locate an escaped prisoner, or where necessary for immediate safety reasons.

Green Bay this summer became the first Wisconsin city to pass a drone ordinance. Its law prohibits the use of drone over “special events.” City of Madison officials say there is no drone ordinance in the works.

Some of the earliest, and much of the growing use of drones is in agriculture, says Brian Luck, an assistant professor in the UW-Madison College of Agriculture and Life Science and educator with UW-Extension.

Interest in UAVs in the state is high, Luck wrote in September for a CALS news feature. They are the topic most requested by the groups he visits through UW-Extension, he said.

Luck gives a tour — and an on-campus spin — of an agriculture research drone in this video.

The devices let growers assess the health of their crops in near real time without spending the time or resources to physically scout the fields to identify issues that might impact growth or yield, Luck wrote.

Luck quoted UAV industry predictions that up to 80 percent of the commercial market for UAVs will eventually be for agricultural uses. Industry analysts expect more than 100,000 jobs to be created through drone use overall and nearly half a billion dollars in tax revenue, according to statistics quoted by Luck.

Insurance is another industry turning to drones to expand its reach.

American Family Insurance, headquartered in Madison, has obtained a Section 333 exemption and is preparing to put it to use, said innovation director Ryan Rist.

The two likely scenarios for drone use are catastrophe response — where the devices can help insurance workers on the scene assess damage and start assisting customers more quickly — and inspection for routine claims, Rist said.

Drones can save claims adjusters from having to climb up on roofs with steep slopes or in icy conditions, “allowing them to do their jobs faster, safer and possibly remotely,” he said.

Making customers aware of the tool, and getting them used to it, is a top priority, Rist said, as well as fine-tuning system for operating the devices and analyzing the information collected.

But after a laborious regulatory process that included getting specifications for drones made in China to the FAA, American Family is ready to fly, Rist said.

“We could fly today. We have three drones registered, our pilots are ready. The next step is to test it in the field and see how it works,” he said.

Hobbyists can get started with a build-it-yourself drone kit and goggles system for $250 and up – cameras are extra, said Toms as he prepared for a demonstration race at the MARCS flying field.

But most hobbyists don’t often stop with just one purchase, he said.

“Once you’ve got one, you want more,” said Grant Hones, who has been flying drones for three years and radio-controlled air craft for 15.

Hones says he’s intrigued by many of the prospective commercial uses of drones, but added: “Mostly it’s just really fun as a hobby.”

“That first-person view is just a whole new world,” Charlie Toms, the racer who advises electric cooperatives, agreed.

It sure is.

With the help of a set of goggles, a visitor to the MARCS field took a spin in a drone. Up above the rust-colored tree-tops, over the dry, golden fields, a soaring tour of the Dane County countryside filled the heart and dropped the stomach.

It must be what the birds see.

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