The commercial, versus governmental, use of drones requires clarity

The commercial, versus governmental, use of drones requires clarity

America's New Neighborhood Watch - by Jeff Gates for Flickr CC -0
America's New Neighborhood Watch - by Jeff Gates for Flickr CC -0

WASHINGTON, February 23, 2014 – The use of commercial drones is in need of legal clarity. Widespread public conversation about drones peaked last year when Amazon announced that it would use them to deliver products to consumers’ doorsteps.  What can legally be done when profit and drone-use are hitched is a conversation that has been going on, nonetheless, for many years.

First, clearly, the technology is beyond amazing, it is getting better, and the application for drones is only limited to the imagination.  Adam Estes, writing for describes that analysts see drone use becoming a $10 billion dollar industry in the next few years.

He provides several examples of what drones can do for Americans:

Help farmers

Sell real estate

Enable Paparazzi

Make sports and other events look cool

Fight crime

Guard the border

Save the planet (by keeping track of the environment and more)

Put out wildfires

Monitor wildlife

Deliver pizza

Do journalism

Inspect oil rigs

Transport medicine

Save lives (a drone can deliver a defibrillator to a heart attack victim faster than an ambulance)

A lobby group, The Association for Unmanned Vehicle Systems International, set the monetization much higher than Mr. Estes. According to their March, 2013 report, “The Economic Impact of Unmanned Systems Integration in the United States,” drones would add 34,000 manufacturing jobs in the next three years and 70,000 new jobs overall in the same time period.

They say the value of drones to commerce is $82.1 billion between 2015-2025. The report details that a lack of regulatory structure is the main problem for deployment of this tremendous commerce.

Thus, enter the regulator, the Federal Aviation Administration. Actually, the FAA entered in 1958, after two planes flying over the Grand Canyon in 1956 collided. Crew and 128 passengers all died.  This was the first U.S. air disaster with more than 100 fatalities. President Eisenhower signed legislation creating the FAA, citing that the nation’s air-travel industry needed better safety oversight.

In 1981 the FAA, in an advisory opinion, suggested model aircraft operators fly below 400 feet. In fact, space above the ground, up to 1200 feet (called Class G airspace) is unregulated. This technically means that the FAA has no authority to control or dictate what anyone does, or what is flown in that airspace. Nonetheless, since 2007, FAA officials have relied on a ban they “enacted” on the commercial use of unmanned drones.

The FAA has thus attempted to control who does what and what is flown, including in the Class G airspace. The legality of the ban, however, is questionable, as the FAA never went through the prescribed rule making channels. A set of regulations is due in 2015.

The FAA maintains a significant illogical position regarding the use of drones. Nonetheless, they have permitted the use of the exact same drones if used in a non-commercial manner.

Charles Eide, who owns a Minnesota-based commercial filming business, says the FAA called him and demanded that he stop performing commercial services with unmanned aircraft and to pull his advertising.

He invested over $70,000 for 10 drones.  Eide says he will now charge for other services and that “instead of charging for the drone filming, we will simply include it as pro bono for working with us.”  FAA went away.

Raphael Pirker’s situation is now the focus of the entire industry’s attention. He is involved in litigation with the FAA which should be resolved very soon. In 2011, the FAA assessed Pirker with a $10,000 fine after he flew a drone around the University of Virginia to film an ad for the university’s medical school.

The FAA says that Pirker illegally operated the drone for commercial purposes and flew it in a “careless or reckless manner so as to endanger the life or property of another.” Pirker asked a judge with the National Transportation Safety Board to throw out the fine.  He is challenging the FAA’s claim that it has the power to regulate the use of unmanned commercial drones.

Pirker’s pushback places the commercial drone business in the U.S. into a grey area. The FAA has issued dozens of cease-and-desist letters to operators of commercial model aircraft, forcing some companies to shut down. Some companies continue their aerial filming and crop and real estate surveying businesses underground by eliminating their ads; others have opted to “fly” in the FAA’s face and continue right in the open.

Jason Koebler, writing for Politico, says he has asked the FAA numerous times whether flying a drone for profit is illegal, and he was finally, recently told that the agency was not prepared to answer that question. Koebler thus suggests that Pirker’s case will hinge on whether the FAA can prove that Pirker was flying in a “reckless manner endangering life or property.”

Koebler says the FAA must show that Pirker could have killed or seriously injured someone, or damaged a building with what was essentially a flying toy. Koebler says that if the FAA fails and the fine is eliminated, the ruling would mean that that the FAA lacks the authority to stop commercial drone operators.

It is highly likely Mr. Pirker will prevail.

The FAA’s plan, with regulations expected in 2015, is to gradually introduce commercial drone use into the airways with safety controls and privacy protections (to provide reassurance for concerns about allowing small flying cameras to operate with impunity).  A win for Pirker, says Koebler, “would open the skies immediately for a buzzing, whirring horde.”

Amazon, flying cameras, saving lives, protecting the environment and delivering pizzas, and much more, will be here soon. Use of the sky for entrepreneurial gain is coming before you can blink.

The already begun and soon to be exponentially ramped up legal questions will be those involving privacy issues.  In 2004, a couple making love on their secluded apartment rooftop believing they had complete privacy, was filmed by an unmanned drone with a camera for over four minutes.  Imagine a hovering drone with the ability to “see” through your shades…

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is available to speak to your group on numerous legal topics. 

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