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Droning On:

by Catherine Mills | Mar 1, 2019 | Firm News |

A Brief Look Into Drone Law Past, Present, and FutureDroning On: A Brief Look Into Drone Law Past, Present, and Future

Whether we are ready for it or not, drones are coming. Amazon is in the testing phase of Prime Air drone delivery services. Aerial photography has been taken to all new heights. The laws we have in place are woefully inadequate to regulate drones, but they are changing by the minute.

With the increasing popularity and affordability of drones, there are also many interesting questions relating to the use of drones within a condominium or subdivision. These questions range from whether the Board of Directors can use drones to assist with restriction enforcement, to whether associations can prohibit the use of drones on its premises, and whether an association can impose restrictions on future commercial delivery drones.

Brief History of U.S. Federal Drone Laws

The first attempt to federally regulate drones was adopted on February 14, 2012, as part of the FAA Modernization and Reform Act of 2012.[1] Prior to 2012, the FAA only had internal policy guidelines relating to model aircraft.[2] The legislation was weak in regards to Unmanned Aircraft Systems (“UAS” or drones), and was primarily limited to directing the FAA to conduct studies on safety and promulgate further regulations by 2015. More problematic, the law contained a prohibition on the FAA regulating certain recreational model aircraft if they met a series of confusing criteria.[3] Chiefly, the exemption applied to hobby or recreational flights which operated within a community-based set of safety guidelines, within the programming of a nationwide community-based organization, and flown more than 5 miles away from any type of airport (unless prior notice was given and approved). The model aircraft exception is contained in Section 336 of the FAA Modernization and Reform Act of 2012 and often referred to as simply “Section 336.”

Pursuant to the FAA Modernization Act of 2012, the FAA promulgated 14 C.F.R. part 107 (“Part 107”), which “applies to the registration, airman certification, and operation of civil small unmanned aircraft systems within the United States.”[4] Part 107 requires that all UAS over 0.55 pounds (250 grams) be registered with the FAA,[5] pilots keep the aircraft within the visual line of sight of the operator or a designated visual observer,[6] and below an altitude of 400 feet above ground level or within a 400 foot radius of a structure.[7]

More regulations were proposed in 2015,[8] and the FAA subsequently published the final order in June 2016. The Operation and Certification of Small Unmanned Aircraft Systems[9] created regulations for certain classes of non-recreational small drone operations.[10] The FAA made it clear that safety, not privacy, was the chief concern.[11] The final order requires the operator of a UAS to maintain visual line-of-sight with the drone or keep it within the sight of a designated visual observer, to operate during daylight or twilight only, and to limit the speed and altitude of small drone operations, among other requirements.[12]

The FAA Extension, Safety, and Security Act of 2016[13] simply reiterated that flights which met the criteria or Section 336 were permitted, subject to future FAA regulations, “including requirements for the completion of any applicable airman test.”[14] No further clarification on the terms in Section 336 was provided.

On October 5, 2018, the FAA Reauthorization Act of 2018 was passed into law (H.R. 302). The new law repealed the Section 336 exemption,[15] revised the language, and replaced it with 49 U.S.C. § 44809. Previous requirements were officially codified, including that the UAS must be flown within the visual line of sight of the pilot or a visual observer directly in communication with the pilot. The UAS must not be flown over 400 feet above ground level. Additionally, all UAS users – even recreational users – are required to pass an Aeronautical Knowledge and Safety Test, which must be implemented by the FAA by April 3, 2019.[16] Upon passing the test, the FAA will issue a Remote Pilot Certificate, which must be renewed every 2 years. Further, all drones weighing over 0.55 pounds (250 grams) must be registered with the FAA (at a current cost of $5.00 per drone, valid for 3 years). Congress has given the FAA until October 5, 2019, to update the existing regulations to allow for the carriage of property by operators for compensation or hire (i.e. drone package delivery services).

Drone Laws in Michigan

Michigan currently has two laws which address unmanned aircraft systems. The first foray was Act No. 12, Public Acts of 2015 (April 14, 2015)[17], which only briefly mentions UAS to prohibit the use of an “unmanned device that uses aerodynamic forces to achieve flight or that operates on the surface of the water or underwater, to affect animal or fish behavior in order to hinder or prevent the lawful taking of an animal or a fish.”[18]

The second, and more comprehensive, piece of Michigan legislation that addresses drones is the Unmanned Aircraft Systems Act,[19] which: prohibits a political subdivision from regulating or enforcing ordinances regulating the ownership or operation of a UAS unless expressly authorized by statute; allows a person who is authorized by the FAA to operate a commercial UAS as long as they comply with federal law; allows a person to operate a UAS for recreational purposes if done in a manner consistent with federal law; prohibits interference with police officers, firefighters, paramedics, and search and rescue personnel; prohibits harassment (as defined in the Michigan Penal Code or “MPC”); prohibits use of a UAS to violate a restraining order or other judicial order; prohibits surveillance which is otherwise prohibited under the MPC; and prohibits use of a UAS by a registered sex offender to follow, contact, or capture images of an individual, if their sentence prohibited it. The Unmanned Aircraft Systems Act also directs the governor to create an unmanned aircraft systems task force to consider commercial and private use, landowner privacy rights, general safety regulations, and prepare comprehensive recommendations.

Important Case Law

In 2015, a model aircraft hobbyist named John Taylor challenged the FAA’s authority to require registration of all UAS over 0.55 pounds.[20] Mr. Taylor argued that Section 336 of the FAA Modernization and Reform Act of 2012 prohibited the FAA from regulating hobbyist or recreational uses of drones. By requiring a UAS to be registered, he argued that it constitutes an unlawful regulation on recreational drone use. The DC Federal Circuit Court agreed with Mr. Taylor. After Taylor v. Huerta, the FAA stopped requiring registration of model aircraft. If a person had already registered, the FAA allowed them to de-register and issued a refund of their $5. However, less than seven months later, the FAA reinstated the registration requirement by adding a provision in the National Defense Authorization Act for Fiscal Year 2018[21] which states:

The rules adopted by the Administrator of the Federal Aviation Administration in the matter of registration and marking requirements for small unmanned aircraft (FAA-2015-7396; published on December 16, 2015) that were vacated by the United States Court of Appeals for the District of Columbia Circuit in Taylor v. Huerta (No. 15-1495; decided on May 19, 2017) shall be restored to effect on the date of enactment of this Act.[22]

The first challenge to a local municipality’s authority to regulate UAS by ordinance occurred in Massachusetts in Singer v. City of Newton.[23] Michael Singer is a physician-inventor and FAA-certified small unmanned aircraft pilot. The City of Newton passed a local ordinance creating certain registration requirements,[24] a ban on the use of a pilotless aircraft below an altitude of 400 feet over private property without the express permission of the owner of the private property,[25] and a ban on conducting surveillance or invading any place where a person has a reasonable expectation of privacy.[26] Mr. Singer argued that the ordinance was preempted by federal law because it attempts to regulate an almost exclusively federal area of law. The Court agreed with Mr. Singer, because the ordinance effectively acted as a wholesale ban on flights below 400 feet, which is contrary to the FAA’s intentions. Congress granted the authority to the FAA to regulate the use of airspace for aircraft navigation and to protect property on the ground[27] and has specifically directed the FAA to integrate drones into the national airspace system.[28] Those sections of the Newton Ordinance were, therefore, struck down.

In Connecticut, a 23 year-old woman was enjoying a day on the beach at Hammonasset Beach State Park on May 12, 2014, when she noticed a drone with a camera flying above the beach. She followed the drone back to its owner, a 17-year-old hobbyist pilot, and physically attacked him while calling the police.[29] She videotaped the whole encounter, which went viral on social media shortly afterwards. She was subsequently arrested and charged with third degree assault and breach of the peace, and ultimately was found guilty and received accelerated rehabilitation. [30] The 17 year-old boy and his father went on to build drones that fired guns and activated flame throwers and posted video demonstrations on YouTube.[31] They ignored multiple inquiries and later subpoenas from the FAA about the operation and use of the drones, so the FAA petitioned the U.S. District Court for the District of Connecticut to enforce the subpoenas.[32] The Court ultimately granted the FAA’s petition to enforce the subpoenas, and gave the father and son 30 days to comply.[33] No charges were filed, but the case shows that courts are willing to support legitimate FAA safety concerns.

A Judge in Kentucky dismissed a case against a man who shot down a drone flying over his house when his children were playing outside.[34] Although the case was dismissed, it was not on the merits of the case – rather the Judge did not believe the case was federally significant enough to be brought in federal court. The borderline between what constitutes lawful operation of a UAS in navigable airspace, versus unlawful trespass over private property, remains largely undrawn.

Use of Drones for Enforcement of Restrictions

As discussed above, the FAA protects certain recreational uses of drones. It could be argued, however, that using a drone to enforce bylaws is use by a corporation (by an individual acting in the capacity of, or at the direction of, the association) to conduct business. It is unclear whether the model aircraft exception in 49 U.S.C. § 44809 would extend to protect such usage. Therefore, we look for guidance to what is expressly prohibited.

The FAA Reauthorization Act of 2018, Section 357, simply says, “It is the policy of the United States that the operation of any unmanned aircraft or unmanned aircraft system shall be carried out in a manner that respects and protects personal privacy consistent with the United States Constitution and Federal, State, and local law.”

In Michigan, the Unmanned Aircraft Systems Act ties privacy issues into whether a person, doing the same thing a drone is doing, would be guilty of harassment or unlawful surveillance under the MPC. Unlawful harassment is defined in the MPC as:

[C]onduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.”[35]

The MPC further prohibits a person from “us[ing] in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.”[36] Persons are also prohibited from surveilling another individual in their undergarments or nude,[37] or from photographing or recording another person in their undergarments or nude[38] in places where they would have a reasonable expectation of privacy.

The answer to the question about whether it is legal to use a drone for the purpose of enforcing restrictions in a condominium or subdivision is, therefore, dependent on whether it would be considered harassment or unlawful surveillance if a person was in the same place as the drone. If the drone is being used to record an image or video of a backyard which is either unfenced, or would be visible when walking around the perimeter of a fence, then I would argue that the owner does not have a reasonable expectation of privacy. If the drone is being used to record an image or video of the inside of a building, it may depend on other factors such as whether the window has an unobstructed view from an otherwise accessible place, whether there are window coverings, how close the drone is flying to the building, whether the image is zoomed or could be seen without magnification, and the location of the window.

Interestingly, there is no law or Michigan case law in regards to trespasses committed by UAS. We know from Singer v. City of Newton, supra, that any local ordinance requiring permission from the private land owner to fly a drone over the private land would be struck down as preempted by federal law. Even if the FAA promulgated its own similar rule, it would likely be struck down as a violation on the prohibition of regulations concerning certain recreational model aircraft (codified in 49 U.S.C. § 44809).

Prohibition of Use of Drones

Most condominium bylaws and HOA deed restrictions contain a prohibition on activities which are a nuisance to other owners. I have yet to see one specifically list drones as an annoyance, but, arguably, they could be if they are noisy, invasive, or obtrusive. (If it rises to the level of harassment or privacy violations of unlawful surveillance, the police should be involved.) If the governing documents allow the Board to implement rules and regulations concerning the use of common elements or common areas, then the Board can adopt a policy concerning the use of drones (i.e. restricting their use to only park areas or require them to be a number of feet away from buildings). This would add a layer of protection for the association if the use is later challenged, but does not guarantee it will ultimately be enforceable. An outright ban would likely be held unenforceable.

From the outset, Congress has specified that the federal laws are aimed to address safety concerns, and to otherwise be the least restrictive on recreational UAS flights. It appears that regulations by municipalities should only address privacy concerns. There is a lengthy discussion in Taylor v Huerta, supra, in regards to Congressional intent to promote and protect the use of recreational drones.

The Michigan Unmanned Aircraft Systems Act, supra, prohibits a county, city, village, or township from enacting or enforcing an ordinance or resolution that regulates the ownership or operation of unmanned aircraft unless expressly authorized by statute. The Court in Singer v. City of Newton, supra, surmised that states could regulate drone purpose and function — what drones can be used for and what types of things they can do. Michigan’s current laws prohibit certain uses where privacy is a concern. Any rule or regulation should be carefully crafted to restrict certain uses of drones and not interfere with the FAA’s exclusive authority to make safety regulations.

The current restrictions on flying drones apply only to government-protected locations and in the vicinity of airports. 14 C.F.R. § 107.39 prohibits use of “a small unmanned aircraft over a human being unless that human being is: (a) Directly participating in the operation of the small unmanned aircraft; or (b) Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.” The latter restriction focuses on safety as opposed to privacy.

Commercial Delivery Drones

Part 107 requires that a drone be within the pilot’s line of sight with vision that is unaided by any device other than corrective lenses or within the line of sight of a person in direct communication with the pilot in the same manner.[39] The maximum line of sight is a distance of no more than three miles.[40] Pilots can apply for a waiver under 14 C. F. R. § 107.205. Obviously, this presents a problem for commercial delivery drone usage. Until new laws are adopted in the U.S., Amazon’s Prime Air and similar services will not be practical. The idea is still in the testing phase, and Amazon claims it is “working with regulators and industry to design an air traffic management system that will recognize who is flying what drone, where they are flying, and whether they are adhering to operating requirements.”[41] Their first test flight delivery took place in Cambridge, England on December 7, 2016.

The Future of the Law

The FAA has recently announced a draft of a new amendment to Part 107 to allow for night flights and flights over people,[42] which it plans to publish in the Code of Federal Regulations for comments. Currently, such flights are allowed only with a special waiver or exemption. The amendment would also change the requirement for a remote pilot certification to be renewed every 2 years, and instead replace it with an online training course to be completed every two years, in which the pilot must achieve a score of 100%.[43]

The area of law concerning commercial delivery drones is very much in its legislative infancy. We anticipate many changes in the immediate future, especially as we see commercial drone use become more cost-effective (or consumers more willing to pay for it) and in higher demand. Specific areas which need to be addressed are whether commercial drones may record images or video, whether drones may cross state or municipal borders, whether local municipalities may establish designated landing zones, and whether there should be predetermined flight patterns (similar to a highway in the airspace).

If your association has questions about drone law and how it can affect it, please give us a call.

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[1] Public Law 112-95, 126 Stat. 72 (February 14, 2012) (codified at 49 U.S.C. § 40101 note).

[2] Advisory Circular 91-57, “Model Aircraft Operating Standards,” published on June 9, 1981; Memorandum AFS-400 UAS Policy 05-01, “Unmanned Aircraft Systems Operations in the U.S. National Airspace System – Interim Operational Approval Guidance,” September 16, 2005, and subsequently cancelled, revised, and re-issued on March 13, 2008 as Interim Operational Guidance 08-01, “Unmanned Aircraft Systems Operations in the U.S. National Airspace System.”

[3] P.L. 112-95, Section 336.

[4] 14 C.F.R. § 107.1(a).

[5] Id. at § 91.203 and § 107.31.

[6] Id. at § 107.3 and § 107.31.

[7] Id. at § 107.51(b).

[8] 80 Fed. Reg. 9544 (February 23, 2015).

[9] 81 Fed. Reg. 42,064 (June 28, 2016).

[10] Id. at 42,074.

[11] 80 Fed. Reg. at 9552; 81 Fed. Reg. at 42,191.

[12] 81 Fed. Reg. at 42,066-67.

[13] Public Law 114-190, 130 Stat. 630 (July 15, 2016).

[14] Id. at Section 2203(B)(2)(d)(i).

[15] H.R. 302-115, Section 349(b)(2).

[16] 49 U.S.C. § 44809(g)(1) and 124 C.F.R. §107.12.

[17] An act to protect the environment and natural resources of the state; to codify, revise, consolidate, and classify laws relating to the environment and natural resources of the state; to regulate the discharge of certain substances into the environment; to regulate the use of certain lands, waters, and other natural resources of the state; to protect the people’s right to hunt and fish; to prescribe the powers and duties of certain state and local agencies and officials; to provide for certain charges, fees, assessments, and donations; to provide certain appropriations; to prescribe penalties and provide remedies; and to repeal acts and parts of acts.

[18] M.C.L. § 324.40112(2)(c).

[19] Act No. 436, Public Acts of 2016 (January 3, 2017).

[20] Taylor v. Huerta, 856 F. 3d 1089 (DC Cir. May 19, 2017).

[21] Public Law 115-91, 131 Stat. 1611 (December 12, 2017).

[22] Id. at Section 1092(d); 49 U.S.C. 40101 Note.

[23] No. CV 17-10071, 2017 WL 4176477 (D. Mass. Sept. 21, 2017).

[24] Newton Ordinances § 20-64(b) (December 19, 2016).

[25] Id. at § 20-64(c)(1)(a).

[26] Id. at § 20-64(c)(1)(f)-(g).

[27] 49 U.S.C. § 40103(b)(2).

[28] Pub. L. No. 112-95 § 332.

[29] New Haven Register. “Drone at Hammonasset Beach leads to viral video, assault charge for Westbrook woman” (June 9, 2014).