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Regulations Could Ground Drones Before Takeoff

Rob Pegoraro
Tech Columnist
June 17, 2014

(Rob Pegoraro/Yahoo Tech)

Drones have a bit of an image problem.

Say “drone,” and many people think “CIA-operated killing machine in the skies.” They’re thinking of unmanned war machines like the General Atomics MQ-1 Predator, armed with Hellfire missiles. On the other hand, to many people a drone is a toy, a little four-rotor radio-controlled helicopter, and it brings to mind silly hipsters taking “dronie” self-portrait videos.

Watch: The Phantom 2 Vision+ Drone, Your Eye in the Sky

Between those extremes, there’s a wide range of practical applications of drones to extend our vision to places where in-person eyesight would be dangerous, expensive, or tedious. Unfortunately, almost all of them appear to be illegal under current Federal Aviation Administration regulations.

Drones = planes?
The FAA’s position, as articulated in announcements such as this March posting, is clear: Drones are aircraft, and for commercial use an aircraft must be certified and under the control of a certified pilot. That’s even if the drone flies no higher than 400 feet, the ceiling of the uncontrolled altitude the FAA calls “Class G airspace.”

Read more: 4 Ways to Use Drones for Good (None of Which Is Amazon Delivery)

In some regions, like Washington, D.C., the FAA’s rules are even stricter: Drone flights — along with hang gliding, model rocketry, and most anything outside of government, airline, and some charter operations — are prohibited within a roughly 17-mile radius of Reagan National Airport.

At least you can still fly a kite. For now.

So when real-estate agents used a drone to post an aerial tour of the District’s Brookland neighborhood last month, the FAA could not have been amused. The blog post by agents Shemaya Klar and Jake Abbott (who didn’t answer emails requesting comment) has since disappeared.

At least they got nothing worse than a nasty letter. In another case, the FAA socked drone operator Raphael Pirker with a $10,000 fine after he posted a drone-filmed promotional video of the University of Virginia’s grounds in Charlottesville.

A National Transportation Safety Board administrative law judge looked at Pirker’s case and held in March that the FAA’s historically relaxed treatment of model aircraft left it no authority to prohibit commercial drone use. But the FAA promptly appealed, and until the full NTSB decides, the current policy stands.

That leaves things in a problematic state, even as time dwindles before the September 30, 2015, deadline for the FAA to liberalize drone restrictions that Congress established in a 2012 law. The deadlines in that “FAA Modernization and Reform Act” already seem shot, and some of its assumptions look dated, too.

Drone laws: Up in the air
Here are some of the issues the FAA will have to address when it finally gets around to writing its rules on drones:

Safety: The drone operators I’ve talked to make a point of not having their aircraft touch anything but a designated landing spot and avoiding buildings and groups of people on the way. “We try not to be a nuisance or do anything unsafe,” said Christopher Vo, a George Mason University robotics researcher and director of education for the DC Area Drone User Group. For example, he said, he turned down an opportunity to photograph a marathon via drone.

But the FAA’s focus on the peril of commercial drone operation neglects how hobbyists can endanger others just as easily. Take Pirker’s UVA video: As you can see on YouTube, the drone buzzed buildings and people and even flew below some bridges.

The FAA is not planning to write safety rules for recreational drone use beyond the one-page set of 1981-vintage voluntary guidelines for model-aircraft flights that govern them today. It can’t: Section 336 of the 2012 bill essentially rules that out.

Define “commercial”: This money-changes-everything logic can easily break down in practice. If, for instance, a newspaper posts a clip taken by a hobbyist drone operator offered for publication at no charge, is that a business use? The Dayton Business Journal opted out of posting drone videos of an April fire after an FAA representative urged it to “err on the side of caution.”

A group of news organizations blasted the FAA in a filing: “News gathering is not a ‘business purpose.’ It is a First Amendment right.” (Disclosure: The parties behind the brief in the Pirker case include a former employer, The Washington Post, and a current freelance client, Gannett.)

Who gets permission? Getting an exemption from the FAA’s rule is an expensive and prolonged process that’s less than innovation-friendly. The two drones that got a provisional approval last summer are large and expensive models, while law-enforcement agencies looking to deploy drones for tasks like wilderness rescue must grind their way through a lengthy “certificate of authorization” process that’s good for only one make and model of drone at a time.

As a recent story in Air & Space magazine noted, the Mesa County, Colorado, sheriff’s department had to list all possible emergency landing sites in its 3,300 square miles of jurisdiction — among other checklist items — before getting a conditional approval for drone use.

What about privacy? One of the more common complaints about drones — what Vo calls the “Don’t point that camera at me” problem — falls outside the FAA’s rulemaking process. As Amie Stepanovich, senior policy counsel at the digital-rights group Access, put it, drones are “a relatively cheap platform for photo and video surveillance.” I suspect that more people would be comfortable with drones if a) privacy boundaries were a bigger part of the discussion and b) mass-media coverage like a certain Time cover illustration didn’t suggest that Predators would soon be overflying our backyards.

The drone business won’t slow down soon. Meanwhile, drones continue to take cameras and sensors to places that would be expensive or dangerous to inspect with human eyeballs: farm fields, bridges, tall structures of any sort. The feds have limited abilities to catch most of it — the FAA says it must rely on reports from other pilots, onlookers on the ground, or the news media.

The FAA can and should write some basic rules for commercial drone use, and it shouldn’t hesitate to make an example out of people who act like idiots. But we’re talking about things you can buy for $100 on the Internet. At some point, we may just have to count on most people not acting like idiots.

Email Rob at rob@robpegoraro.com; follow him on Twitter at @robpegoraro.