Drone Law Blog


Texas Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other US drone laws by state.

 Current as of June 19, 2017

Texas Government Code Chapter 423. USE OF UNMANNED AIRCRAFT

Sec. 423.001. DEFINITION. In this chapter, “image” means any capturing of sound waves, thermal, infrared, ultraviolet, visible light, or other electromagnetic waves, odor, or other conditions existing on or about real property in this state or an individual located on that property.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.

Sec. 423.002. NONAPPLICABILITY.

(a) It is lawful to capture an image using an unmanned aircraft in this state:

(1) for the purpose of professional or scholarly research and development or for another academic purpose by a person acting on behalf of an institution of higher education or a private or independent institution of higher education, as those terms are defined by Section 61.003, Education Code, including a person who:

(A) is a professor, employee, or student of the institution; or

(B) is under contract with or otherwise acting under the direction or on behalf of the institution;

(2) in airspace designated as a test site or range authorized by the Federal Aviation Administration for the purpose of integrating unmanned aircraft systems into the national airspace;

(3) as part of an operation, exercise, or mission of any branch of the United States military;

(4) if the image is captured by a satellite for the purposes of mapping;

(5) if the image is captured by or for an electric or natural gas utility:

(A) for operations and maintenance of utility facilities for the purpose of maintaining utility system reliability and integrity;

(B) for inspecting utility facilities to determine repair, maintenance, or replacement needs during and after construction of such facilities;

(C) for assessing vegetation growth for the purpose of maintaining clearances on utility easements; and

(D) for utility facility routing and siting for the purpose of providing utility service;

(6) with the consent of the individual who owns or lawfully occupies the real property captured in the image;

(7) pursuant to a valid search or arrest warrant;

(8) if the image is captured by a law enforcement authority or a person who is under contract with or otherwise acting under the direction or on behalf of a law enforcement authority:

(A) in immediate pursuit of a person law enforcement officers have reasonable suspicion or probable cause to suspect has committed an offense, not including misdemeanors or offenses punishable by a fine only;

(B) for the purpose of documenting a crime scene where an offense, not including misdemeanors or offenses punishable by a fine only, has been committed;

(C) for the purpose of investigating the scene of:

(i) a human fatality;

(ii) a motor vehicle accident causing death or serious bodily injury to a person; or

(iii) any motor vehicle accident on a state highway or federal interstate or highway;

(D) in connection with the search for a missing person;

(E) for the purpose of conducting a high-risk tactical operation that poses a threat to human life; or

(F) of private property that is generally open to the public where the property owner consents to law enforcement public safety responsibilities;

(9) if the image is captured by state or local law enforcement authorities, or a person who is under contract with or otherwise acting under the direction or on behalf of state authorities, for the purpose of:

(A) surveying the scene of a catastrophe or other damage to determine whether a state of emergency should be declared;

(B) preserving public safety, protecting property, or surveying damage or contamination during a lawfully declared state of emergency; or

(C) conducting routine air quality sampling and monitoring, as provided by state or local law;

(10) at the scene of a spill, or a suspected spill, of hazardous materials;

(11) for the purpose of fire suppression;

(12) for the purpose of rescuing a person whose life or well-being is in imminent danger;

(13) if the image is captured by a Texas licensed real estate broker in connection with the marketing, sale, or financing of real property, provided that no individual is identifiable in the image;

(14) of real property or a person on real property that is within 25 miles of the United States border;

(15) from a height no more than eight feet above ground level in a public place, if the image was captured without using any electronic, mechanical, or other means to amplify the image beyond normal human perception;

(16) of public real property or a person on that property;

(17) if the image is captured by the owner or operator of an oil, gas, water, or other pipeline for the purpose of inspecting, maintaining, or repairing pipelines or other related facilities, and is captured without the intent to conduct surveillance on an individual or real property located in this state;

(18) in connection with oil pipeline safety and rig protection;

(19) in connection with port authority surveillance and security;

(20) if the image is captured by a registered professional land surveyor in connection with the practice of professional surveying, as those terms are defined by Section 1071.002, Occupations Code, provided that no individual is identifiable in the image; or

(21) if the image is captured by a professional engineer licensed under Subchapter G, Chapter 1001, Occupations Code, in connection with the practice of engineering, as defined by Section 1001.003, Occupations Code, provided that no individual is identifiable in the image.

(b) This chapter does not apply to the manufacture, assembly, distribution, or sale of an unmanned aircraft.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.

Amended by: Acts 2015, 84th Leg., R.S., Ch. 360 (H.B. 2167), Sec. 1, eff. September 1, 2015.

Sec. 423.003. OFFENSE: ILLEGAL USE OF UNMANNED AIRCRAFT TO CAPTURE IMAGE.

(a) A person commits an offense if the person uses an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image.

(b) An offense under this section is a Class C misdemeanor.

(c) It is a defense to prosecution under this section that the person destroyed the image:

(1) as soon as the person had knowledge that the image was captured in violation of this section; and

(2) without disclosing, displaying, or distributing the image to a third party.

(d) In this section, “intent” has the meaning assigned by Section 6.03, Penal Code.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.

Sec. 423.004. OFFENSE: POSSESSION, DISCLOSURE, DISPLAY, DISTRIBUTION, OR USE OF IMAGE.

(a) A person commits an offense if the person:

(1) captures an image in violation of Section 423.003; and

(2) possesses, discloses, displays, distributes, or otherwise uses that image.

(b) An offense under this section for the possession of an image is a Class C misdemeanor. An offense under this section for the disclosure, display, distribution, or other use of an image is a Class B misdemeanor.

(c) Each image a person possesses, discloses, displays, distributes, or otherwise uses in violation of this section is a separate offense.

(d) It is a defense to prosecution under this section for the possession of an image that the person destroyed the image as soon as the person had knowledge that the image was captured in violation of Section 423.003.

(e) It is a defense to prosecution under this section for the disclosure, display, distribution, or other use of an image that the person stopped disclosing, displaying, distributing, or otherwise using the image as soon as the person had knowledge that the image was captured in violation of Section 423.003.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.

Sec. 423.0045. OFFENSE: OPERATION OF UNMANNED AIRCRAFT OVER CRITICAL INFRASTRUCTURE FACILITY.

(a) In this section:

(1) “Critical infrastructure facility” means:

(A) one of the following, if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders, or if clearly marked with a sign or signs that are posted on the property, are reasonably likely to come to the attention of intruders, and indicate that entry is forbidden:

(i) a petroleum or alumina refinery;

(ii) an electrical power generating facility, substation, switching station, or electrical control center;

(iii) a chemical, polymer, or rubber manufacturing facility;

(iv) a water intake structure, water treatment facility, wastewater treatment plant, or pump station;

(v) a natural gas compressor station;

(vi) a liquid natural gas terminal or storage facility;

(vii) a telecommunications central switching office or any structure used as part of a system to provide wired or wireless telecommunications services;

(viii) a port, railroad switching yard, trucking terminal, or other freight transportation facility;

(ix) a gas processing plant, including a plant used in the processing, treatment, or fractionation of natural gas;

(x) a transmission facility used by a federally licensed radio or television station;

(xi) a steelmaking facility that uses an electric arc furnace to make steel; or

(xii) a dam that is classified as a high hazard by the Texas Commission on Environmental Quality; or

(xiii) a concentrated animal feeding operation, as defined by Section 26.048, Water Code; or

(B) if enclosed by a fence or other physical barrier obviously designed to exclude intruders:

(i) any portion of an aboveground oil, gas, or chemical pipeline;
(ii) an oil or gas drilling site;
(iii) a group of tanks used to store crude oil, such as a tank battery;
(iv) an oil, gas, or chemical production facility;
(v) an oil or gas wellhead; or
(vi) any oil and gas facility that has an active flare

(2) “Dam” means any barrier, including any appurtenant structures, that is constructed for the purpose of permanently or temporarily impounding water.

(b) A person commits an offense if the person intentionally or knowingly:

(1) operates an unmanned aircraft over a critical infrastructure facility and the unmanned aircraft is not higher than 400 feet above ground level;

(2) allows an unmanned aircraft to make contact with a critical infrastructure facility, including any person or object on the premises of or within the facility; or

(3) allows an unmanned aircraft to come within a distance of a critical infrastructure facility that is close enough to interfere with the operations of or cause a disturbance to the facility.

(c) This section does not apply to conduct described by Subsection (b) that is committed by:

(1) the federal government, the state, or a governmental entity;

(2) a person under contract with or otherwise acting under the direction or on behalf of the federal government, the state, or a governmental entity;

(3) a law enforcement agency;

(4) a person under contract with or otherwise acting under the direction or on behalf of a law enforcement agency;

(5) an owner or operator of the critical infrastructure facility;

(6) a person under contract with or otherwise acting under the direction or on behalf of an owner or operator of the critical infrastructure facility;

(7) a person who has the prior written consent of the owner or operator of the critical infrastructure facility;

(8) the owner or occupant of the property on which the critical infrastructure facility is located or a person who has the prior written consent of the owner or occupant of that property; or

(9) an operator of an unmanned aircraft that is being used for a commercial purpose, if the operation is conducted in compliance with:

(A) each applicable Federal Aviation Administration rule, restriction, or exemption; and
(B) all required Federal Aviation Administration authorizations

(d) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the actor has previously been convicted under this section.

Added by Acts 2015, 84th Leg., R.S., Ch. 1033 (H.B. 1481), Sec. 1, eff. September 1, 2015.

Sec. 423.005. ILLEGALLY OR INCIDENTALLY CAPTURED IMAGES NOT SUBJECT TO DISCLOSURE.

(a) Except as otherwise provided by Subsection (b), an image captured in violation of Section 423.003, or an image captured by an unmanned aircraft that was incidental to the lawful capturing of an image:

(1) may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding;

(2) is not subject to disclosure, inspection, or copying under Chapter 552; and

(3) is not subject to discovery, subpoena, or other means of legal compulsion for its release.

(b) An image described by Subsection (a) may be disclosed and used as evidence to prove a violation of this chapter and is subject to discovery, subpoena, or other means of legal compulsion for that purpose.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.

Sec. 423.006. CIVIL ACTION.

(a) An owner or tenant of privately owned real property located in this state may bring against a person who, in violation of Section 423.003, captured an image of the property or the owner or tenant while on the property an action to:

(1) enjoin a violation or imminent violation of Section 423.003 or 423.004;

(2) recover a civil penalty of:

(A) $5,000 for all images captured in a single episode in violation of Section 423.003; or

(B) $10,000 for disclosure, display, distribution, or other use of any images captured in a single episode in violation of Section 423.004; or

(3) recover actual damages if the person who captured the image in violation of Section 423.003 discloses, displays, or distributes the image with malice.

(b) For purposes of recovering the civil penalty or actual damages under Subsection (a), all owners of a parcel of real property are considered to be a single owner and all tenants of a parcel of real property are considered to be a single tenant.

(c) In this section, “malice” has the meaning assigned by Section 41.001, Civil Practice and Remedies Code.

(d) In addition to any civil penalties authorized under this section, the court shall award court costs and reasonable attorney’s fees to the prevailing party.

(e) Venue for an action under this section is governed by Chapter 15, Civil Practice and Remedies Code.

(f) An action brought under this section must be commenced within two years from the date the image was:

(1) captured in violation of Section 423.003; or

(2) initially disclosed, displayed, distributed, or otherwise used in violation of Section 423.004.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.

Sec. 423.007. RULES FOR USE BY LAW ENFORCEMENT.

The Department of Public Safety shall adopt rules and guidelines for use of an unmanned aircraft by a law enforcement authority in this state.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.

Sec. 423.008. REPORTING BY LAW ENFORCEMENT AGENCY.

(a) Not earlier than January 1 and not later than January 15 of each odd-numbered year, each state law enforcement agency and each county or municipal law enforcement agency located in a county or municipality, as applicable, with a population greater than 150,000, that used or operated an unmanned aircraft during the preceding 24 months shall issue a written report to the governor, the lieutenant governor, and each member of the legislature and shall:

(1) retain the report for public viewing; and

(2) post the report on the law enforcement agency’s publicly accessible website, if one exists.

(b) The report must include:

(1) the number of times an unmanned aircraft was used, organized by date, time, location, and the types of incidents and types of justification for the use;

(2) the number of criminal investigations aided by the use of an unmanned aircraft and a description of how the unmanned aircraft aided each investigation;

(3) the number of times an unmanned aircraft was used for a law enforcement operation other than a criminal investigation, the dates and locations of those operations, and a description of how the unmanned aircraft aided each operation;

(4) the type of information collected on an individual, residence, property, or area that was not the subject of a law enforcement operation and the frequency of the collection of this information; and

(5) the total cost of acquiring, maintaining, repairing, and operating or otherwise using each unmanned aircraft for the preceding 24 months.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.

Sec. 423.009. REGULATION OF UNMANNED AIRCRAFT BY POLITICAL SUBDIVISION.

(a) In this section:

(1) “Political subdivision” includes a county, a joint board created under Section 22.074, Transportation Code, and a municipality.
(2) “Special event” means a festival, celebration, or other gathering that:

(A) involves:

(i) the reservation and temporary use of all or a portion of a public park, road, or other property of a political subdivision; and
(ii) entertainment, the sale of merchandise, food, or beverages, or mass participation in a sports event; and

(B) requires a significant use or coordination of a political subdivision’s services.

(b) Except as provided by Subsection (c), a political subdivision may not adopt or enforce any ordinance, order, or other similar measure regarding the operation of an unmanned aircraft.
(c) A political subdivision may adopt and enforce an ordinance, order, or other similar measure regarding:

(1) the use of an unmanned aircraft during a special event;
(2) the political subdivision’s use of an unmanned aircraft; or
(3) the use of an unmanned aircraft near a facility or infrastructure owned by the political subdivision, if the political subdivision:

(A) applies for and receives authorization from the Federal Aviation Administration to adopt the regulation; and
(B) after providing reasonable notice, holds a public hearing on the political subdivision’s intent to apply for the authorization.

(d) An ordinance, order, or other similar measure that violates Subsection (b) is void and unenforceable.

 

 

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Michigan Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other US drone laws by state.

 Current as of February 21, 2017

 

Michigan Compiled Laws Section 259.301 Short title.

This act shall be known and may be cited as the “unmanned aircraft systems act”.

Michigan Compiled Laws Section 259.303 Definitions.

As used in this act:

(a) “Person” means an individual, partnership, corporation, association, governmental entity, or other legal entity.

(b) “Political subdivision” means a county, city, village, township, or other political subdivision, public corporation, authority, or district in this state.

(c) “Unmanned aircraft system” means an unmanned aircraft and all of the associated support equipment, control station, data links, telemetry, communications, navigation equipment, and other equipment necessary to operate the unmanned aircraft.

(d) “Unmanned aircraft” means an aircraft flown by a remote pilot via a ground control system, or autonomously through use of an on-board computer, communication links, and any additional equipment that is necessary for the unmanned aircraft to operate safely.

Michigan Compiled Laws Section 259.305 Political subdivision; limitations; powers; federal preemption; conflict with other sections of law.

 (1) Except as expressly authorized by statute, a political subdivision shall not enact or enforce an ordinance or resolution that regulates the ownership or operation of unmanned aircraft or otherwise engage in the regulation of the ownership or operation of unmanned aircraft.

(2) This act does not prohibit a political subdivision from promulgating rules, regulations, and ordinances for the use of unmanned aircraft systems by the political subdivision within the boundaries of the political subdivision.

(3) This act does not affect federal preemption of state law.

(4) If this act conflicts with section 40111c or 40112 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.40111c and 324.40112, those sections control.

Michigan Compiled Laws Section 259.311 Operation of unmanned aircraft system; person authorized by Federal Aviation Administration.

A person that is authorized by the Federal Aviation Administration to operate unmanned aircraft systems for commercial purposes may operate an unmanned aircraft system in this state if the unmanned aircraft system is operated in a manner consistent with federal law.

Michigan Compiled Laws Section  259.313 Operation of unmanned aircraft system; manner.

A person may operate an unmanned aircraft system in this state for recreational purposes if the unmanned aircraft system is operated in a manner consistent with federal law for the operation of a model aircraft.

Michigan Compiled Laws Section 259.321 Operation of unmanned aircraft system; interference with official duties prohibited.

An individual shall not knowingly and intentionally operate an unmanned aircraft system in a manner that interferes with the official duties of any of the following:

(a) A police officer.

(b) A firefighter.

(c) A paramedic.

(d) Search and rescue personnel.

Michigan Compiled Laws Section 259.322 Operation of unmanned aircraft system; harassment, violation of order, or invasion of privacy prohibited; definition; individual registered as sex offender.

(1) A person shall not knowingly and intentionally operate an unmanned aircraft system to subject an individual to harassment. As used in this subsection, “harassment” means that term as defined in section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i.

(2) A person shall not knowingly and intentionally operate an unmanned aircraft system within a distance that, if the person were to do so personally rather than through remote operation of an unmanned aircraft, would be a violation of a restraining order or other judicial order.

(3) A person shall not knowingly and intentionally operate an unmanned aircraft system to violate section 539j of the Michigan penal code, 1931 PA 328, MCL 750.539j, or to otherwise capture photographs, video, or audio recordings of an individual in a manner that would invade the individual’s reasonable expectation of privacy.

(4) An individual who is required to register as a sex offender under the sex offenders registration act, 1994 PA 295, MCL 28.721 to 28.736, shall not operate an unmanned aircraft system to knowingly and intentionally follow, contact, or capture images of another individual, if the individual’s sentence in a criminal case would prohibit the individual from following, contacting, or capturing the image of the other individual.

Michigan Compiled Laws Section 259.323 Violation as misdemeanor; penalty; other violation of law.

(1) An individual who violates section 21 or 22 is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.

(2) This section does not affect the ability to investigate or to arrest, prosecute, or convict an individual for any other violation of a law of this state.

Michigan Compiled Laws Section 259.331 Unmanned aircraft systems task force.

 (1) The unmanned aircraft systems task force is created to develop statewide policy recommendations on the operation, use, and regulation of unmanned aircraft systems in this state.

(2) Within 90 days after the effective date of this act, the governor shall appoint initial members of the unmanned aircraft systems task force. The individuals appointed to the unmanned aircraft systems task force by the governor, initially and subsequently, must comprise 1 member from each of the following agencies or interest groups:

(a) A member from the state transportation department nominated by the director of the state transportation department.

(b) A member from the division of the state transportation department that performs bridge inspections and road work, nominated by the director of the state transportation department.

(c) A member from the department of state police, nominated by the director of the department of state police.

(d) A member from the department of natural resources, nominated by the director of the department of natural resources.

(e) A member from the department of agriculture and rural development, nominated by the director of the department of agriculture and rural development.

(f) A member from the department of licensing and regulatory affairs nominated by the director of the department of licensing and regulatory affairs.

(g) A member from the department of corrections, nominated by the director of the department of corrections.

(h) An unmanned aircraft systems technical commercial representative.

(i) An unmanned aircraft systems manufacturing industry representative.

(j) A member who is licensed by the Federal Aviation Administration to operate unmanned aircraft that weigh less than 55 pounds.

(k) A member who represents airports in this state, nominated by the director of the state transportation department.

(l) A member from the Michigan Municipal League, nominated by the executive director of the Michigan Municipal League.

(m) A law enforcement official from a municipality, nominated by a statewide police chiefs association.

(n) A member who represents county sheriffs, nominated by the president of the Michigan Sheriffs’ Association.

(o) A member of a statewide agricultural association, nominated by the president of the association.

(p) A member of a statewide retail association, nominated by the president of the association.

(q) A member of a statewide manufacturing trade association, nominated by the president or chief executive officer of the association.

(r) A member of a statewide property and casualty insurance association, nominated by the president or chief executive officer of the association.

(s) A member of a statewide association that represents real estate brokers licensed in this state, nominated by the president of the association.

(t) A member of a statewide surveying association, nominated by the president of the association.

(u) A member of a statewide freight railroad association, nominated by the president of the association.

(v) A member of a statewide broadcasters association, nominated by the president of the association.

(w) A member who represents persons that operate key facilities, as that term is defined in section 552c of the Michigan penal code, 1931 PA 328, MCL 750.552c.

(x) A member who is knowledgeable about the operation of public utilities who represents public utilities in the Upper Peninsula, nominated by the chairman of the public service commission.

(y) A member who is knowledgeable about the operation of public utilities who represents public utilities in the Lower Peninsula, nominated by the chairman of the public service commission.

(z) A member who represents the Mackinac Bridge Authority, nominated by the authority.

(aa) A member who represents the city of Mackinac Island.

(3) Initial nominations to the unmanned aircraft systems task force must be submitted to the governor within 60 days after the effective date of this act. The governor shall make the initial appointments within 30 days after the close of nominations.

(4) Members of the unmanned aircraft systems task force shall serve for terms of 4 years or until a successor is appointed, whichever is later, except that of the initial members appointed, 6 members, as designated by the governor, shall serve for 1 year, 6 members, as designated by the governor, shall serve for 2 years, and 7 members, as designated by the governor, shall serve for 3 years.

(5) If a vacancy occurs on the unmanned aircraft systems task force, the governor shall make an appointment for the unexpired term in the same manner as the original appointment.

(6) The governor may remove a member of the unmanned aircraft systems task force for incompetence, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office, or any other good cause.

(7) The member from the state transportation department shall chair the unmanned aircraft systems task force and serve as a liaison to the governor and the standing committees in the house and senate that mainly deal with transportation issues. The unmanned aircraft systems task force shall meet as necessary to complete the duties of the task force. Meetings of the unmanned aircraft systems task force must be held in the central part of this state.

(8) A majority of the members of the unmanned aircraft systems task force constitute a quorum for the transaction of business at a meeting of the task force. A majority of the members present and serving are required for official action of the task force.

(9) The unmanned aircraft systems task force shall conduct its business at public meetings of the task force held in compliance with the open meetings act, 1976 PA 267, MCL 15.261 to 15.275.

(10) A writing prepared, owned, used, in the possession of, or retained by the unmanned aircraft systems task force in the performance of an official function is subject to the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

(11) The members of the unmanned aircraft systems task force must receive no compensation for serving as members of the task force.

(12) The unmanned aircraft systems task force shall consider commercial and private uses of unmanned aircraft systems, landowner and privacy rights, as well as general rules and regulations for safe operation of unmanned aircraft systems, and prepare comprehensive recommendations for the safe and lawful operation of unmanned aircraft systems in this state. The recommendations must include, but not be limited to, recommendations regarding the protection of public and private property interests and the use of unmanned aircraft systems over public property.

(13) The state transportation department shall provide administrative support to the unmanned aircraft systems task force.

(14) The unmanned aircraft systems task force shall submit a report with recommendations to the governor and the standing committees in the house and senate that mainly deal with transportation issues within 3 months after the first meeting of the task force.

(15) After submitting the report required under subsection (14), the unmanned aircraft systems task force shall meet not less than once every 18 months to consider any new developments or problems that may require further consideration and recommendations by the task force.

Michigan Compiled Laws Section  324.40111c Use of tranquilizer propelled from bow or firearm; use of unmanned vehicle or device; prohibitions.

(1) A person other than the department shall not take game using a tranquilizer propelled from a bow or firearm.

(2) An individual shall not take game or fish using an unmanned vehicle or unmanned device that uses aerodynamic forces to achieve flight or using an unmanned vehicle or unmanned device that operates on the surface of water or underwater.

 

Michigan Compiled Laws Section 324.40112 Obstructing or interfering in lawful taking of animals or fish; prohibited conduct; petition; injunction; violation as misdemeanor; penalties; section inapplicable to peace officer.

(1) An individual shall not obstruct or interfere in the lawful taking of animals or fish by another individual.

(2) An individual violates this section when the individual intentionally or knowingly does any of the following:

(a) Drives or disturbs animals or fish for the purpose of disrupting a lawful taking.

(b) Blocks, impedes, or harasses another individual who is engaged in the process of lawfully taking an animal or fish.

(c) Uses a natural or artificial visual, aural, olfactory, gustatory, or physical stimulus or an unmanned vehicle or 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.

(d) Erects barriers to deny ingress or egress to areas where the lawful taking of animals or fish may occur. This subdivision does not apply to an individual who erects barriers to prevent trespassing on his or her property.

(e) Interjects himself or herself into the line of fire of an individual lawfully taking wildlife.

(f) Affects the condition or placement of personal or public property intended for use in the lawful taking of an animal or a fish in order to impair the usefulness of the property or prevent the use of the property.

(g) Enters or remains upon private lands without the permission of the owner or the owner’s agent, for the purpose of violating this section.

(h) Engages in any other act or behavior for the purpose of violating this section.

(3) Upon petition of an aggrieved person or an individual who reasonably may be aggrieved by a violation of this section, a court of competent jurisdiction, upon a showing that an individual was engaged in and threatens to continue to engage in illegal conduct under this section, may enjoin that conduct.

(4) An individual who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not less than $500.00 or more than $1,000.00, or both, and the costs of prosecution. An individual who violates this section a second or subsequent time is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not less than $1,000.00 or more than $2,500.00, or both, and the costs of prosecution. In addition to the penalties provided for in this subsection, any permit or license issued by the department authorizing the individual to take animals or fish shall be revoked. A prosecution under this section does not preclude prosecution or other action under any other criminal or civil statute.

(5) This section does not apply to a peace officer while the peace officer performs his or her lawful duties.

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How high can a model aircraft fly?

 

The Academy of Model Aeronautics received a letter clarifying the issue that has been raised by many in the model aircraft community.2

How high can I fly my model aircraft and not get in trouble with the FAA?

Let’s look at Section 336 of the FAA Modernization and Reform Act of 2012 to set the context.

Section 336

(a) IN GENERAL.—Notwithstanding any other provision of law
relating to the incorporation of unmanned aircraft systems into
Federal Aviation Administration plans and policies, including this
subtitle, the Administrator of the Federal Aviation Administration
may not promulgate any rule or regulation regarding a model
aircraft, or an aircraft being developed as a model aircraft, if—

(1) the aircraft is flown strictly for hobby or recreational
use;

(2) the aircraft is operated in accordance with a community based
set of safety guidelines and within the programming
of a nationwide community-based organization;

(3) the aircraft is limited to not more than 55 pounds
unless otherwise certified through a design, construction,
inspection, flight test, and operational safety program administered
by a community-based organization;

(4) the aircraft is operated in a manner that does not
interfere with and gives way to any manned aircraft; and

(5) when flown within 5 miles of an airport, the operator
of the aircraft provides the airport operator and the airport
air traffic control tower (when an air traffic facility is located
at the airport) with prior notice of the operation (model aircraft
operators flying from a permanent location within 5 miles of
an airport should establish a mutually-agreed upon operating
procedure with the airport operator and the airport air traffic
control tower (when an air traffic facility is located at the
airport)).

(b) STATUTORY CONSTRUCTION.—Nothing in this section shall
be construed to limit the authority of the Administrator to pursue
enforcement action against persons operating model aircraft who
endanger the safety of the national airspace system.

(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model
aircraft’’ means an unmanned aircraft that is—

(1) capable of sustained flight in the atmosphere;

(2) flown within visual line of sight of the person operating
the aircraft; and
(3) flown for hobby or recreational purposes.

Important Points about Section 336

The first thing you should be aware of is that this section was specifically talking to the FAA, not model aircraft operators. The FAA acts in some regards like it was a section directed at model aircraft flyers. See my article Why the FAA’s Drone Registration Requirements Are ILLEGAL

Secondly, the section does NOT prohibit model aircraft flyers from doing anything else who fall into this category.

Thirdly, this section specifically lists out multiple requirements which ALL must be met. Many in the community are under the impression that flying recreationally automatically has them fall into the protections of 336 when that is NOT the case. I have a section explaining this in my Taylor v. FAA (drone registration lawsuit) article. Many recreational flyers are most likely Part 107 recreational flyers which has all sorts of requirements.

Fourthly, this section only applies to the FAA, not other federal agencies or state drone laws. To help comply with the state laws, I created a page listing out as many state drone laws as I could find.

With this in mind, let’s dive into the letter.

 

Text of the Letter from the FAA to the Academy of Model Aeronautics

Dear Mr. Mathewson:

 

This letter addresses whether unmanned aircraft flown under the model aircraft provisions of Section 336 of the 2012 FAA Modernization and Reform Act must be operated below 400 feet above ground level (AL). As stated in the FAA’s Interpretation of the Special Rule for Model Aircraft, and in historical references below, the 400ft may be flown consistently with Section 336 and agency guidance at altitudes above 400 feet when following a community-based organization’s safety guidelines.

The FAA has a long history of guidance advising model aircraft operators to fly below 400 feet AGL to minimize hazard to full-scale aircraft in flight. in 1981 the FAA published Advisory Circular (AC) 91–57 which “outline[d], and encourage[d] voluntary compliance with, safety standards for model aircraft operators” for the stated purpose of reducing the potential for model aircraft posing a hazard to full-scale aircraft in flight and people and property on the ground. In the AC the FAA cautioned: “Do not fly model aircraft higher than 400ft above the surface.”

The FAA reiterated these recommendations in a 2007 Federal Register notice discussing unmanned aircraft operations. The notice stated “[m]odel aircraft should be flown below 400 feet above the surface to avoid other aircraft in flight.” Finally, in a 2015 update to AC 91-57 the FAA advised model aircraft operators to “follow best practices including limiting operations to 400ft [AGL].”

Section 336, the provision specifically addressing model aircraft in the 2012 FAA Modernization and Reform Act, does not contain a definitive altitude limitation for model aircraft operations. Rather, it requires operation of model aircraft “in accordance with a community-based set of safety guidelines….” Community-based organizations, such as the Academy of Model Aeronautics, may establish altitude limitations in their safety guidelines that exceed the FAA’s 400ft AGL altitude recommendation.

Although such safety guidelines may provide for flight above 400 feet AGL, Section 336 also protects the safety of manned aircraft operations by requiring that model aircraft not interfere with and give way to manned aircraft. The state also explicitly affirms that the FAA may pursue enforcement action against model aircraft operators who endanger the safety of the NAS.

Sincerely,

Earl Lawrence

Director

Unmanned Aircraft Systems Integration Office

Part 107 Operators- How High Can They Go?

§107.51   Operating limitations for small unmanned aircraft.

A remote pilot in command and the person manipulating the flight controls of the small unmanned aircraft system must comply with all of the following operating limitations when operating a small unmanned aircraft system:

(a) The groundspeed of the small unmanned aircraft may not exceed 87 knots (100 miles per hour).

(b) The altitude of the small unmanned aircraft cannot be higher than 400 feet above ground level, unless the small unmanned aircraft:

(1) Is flown within a 400-foot radius of a structure; and

(2) Does not fly higher than 400 feet above the structure’s immediate uppermost limit.

This is what is looks like graphically. Keep in mind that when operating under Part 107 that you need to stay 500ft below and 2,000ft horizontally to any clouds.

Summary

Flying over 400ft AGL as a model aircraft flyer meeting all the requirements of 336 is not an automatic violation, but under certain facts, it could be considered to be endangering the safety of the national airspace (like when flying close to an airport traffic pattern).  Additionally, if you are a recreational flyer NOT meeting all the requirements of Section 336, you will fall under Part 107 and must meet all of its requirements (i.e. remote pilot certificate and registration).


Drone Federalism Act of 2017 (Senate Bill 1272)

 

Quick Summary of Important Facts of the Drone Federalism Act of 2017:

On May 25, Senator Feinstein introduced into the U.S. Senate the bill below. It is labeled Senate Bill 1272. It has been referred to the Senate’s Committee on Commerce, Science, and Transportation.

Track the current progress of the bill by clicking here.

The bill modifies Section 336 of the FAA Modernization and Reform Act of 2012 to require those model aircraft to have the permission of the land owner if they are within 200ft above ground level or 200ft above the structure, whichever is higher.

Any future rulemakings the FAA will do (like over people, night, or extended line of sight of operations) will have to define the preemptive effect of these laws. Additionally,  the FAA “shall ensure that the authority of a State, local, or tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted.”

The FAA will enter into agreements with no more than 10 State, local, or tribal governments to provide technical assistance to these participants regarding regulating drones and these participants in the pilot program are going to be consulted with by NASA.

This bill does NOT affect preemption for manned aircraft.

 

Problems with the Drone Federalism Act of 2017:

 

Who Supports It:

If you are interested in voicing your opinion to your elected official, you can find their contact information here.

 

Actual Text of the Drone Federalism Act with My Emphasis in Bold

 

SECTION 1.  SHORT TITLE.

This Act may be cited as the ‘‘Drone Federalism Act of 2017’’.

 

SEC. 2. PRESERVATION OF STATE, LOCAL, AND TRIBAL AUTHORITIES WITH RESPECT TO UNMANNED AIRCRAFT SYSTEMS.

(a) SCOPE OF PREEMPTION FOR CIVIL UNMANNED AIRCRAFT REGULATIONS.—In prescribing regulations or standards related to civil unmanned aircraft systems, the Administrator shall—

(1) define the scope of the preemptive effect of such regulations or standards pursuant to section 40103 or 41713 of title 49, United States Code, which shall be limited to the extent necessary to ensure the safety and efficiency of the national airspace system for interstate commerce; and

(2) preserve, to the greatest extent practicable, legitimate interests of State, local, and tribal governments, including—

(A) protecting public safety;

(B) protecting personal privacy;

(C) protecting property rights;

(D) managing land use; and

(E) restricting nuisances and noise pollution.

(b) RESERVED POWERS.—

(1) IN GENERAL.—In prescribing regulations or standards related to civil unmanned aircraft systems, the Administrator shall ensure that the authority of a State, local, or tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted.

(2) REASONABLE RESTRICTIONS.—For purposes of paragraph (1), reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system include the following:

(A) Limitations on speed.

(B) Prohibitions or limitations on operations in the vicinity of schools, parks, roadways, bridges, or other public or private property.

(C) Restrictions on operations at certain times of the day or week or on specific occasions such as during parades or sporting events.

(D) Prohibitions on operations while the operator is under the influence of drugs or alcohol.

(E) Prohibitions on careless or reckless operations.

(F) Other prohibitions that protect public safety, personal privacy, or property rights, or that manage land use or restrict noise pollution.

 

SEC. 3. PRESERVATION OF PRIVATE PROPERTY RIGHTS.

(a) AFFIRMATION OF APPLICABILITY OF CONSTITUTIONAL TAKINGS CLAUSE TO FEDERAL AVIATION ADMINISTRATION  REGULATIONS.—In prescribing regulations or standards related to civil unmanned aircraft systems, the Administrator shall not authorize the operation of a civil unmanned aircraft in the immediate reaches of the airspace above property without permission of the property owner.

(b) AFFIRMATION OF APPLICABILITY OF CONSTITUTIONAL TAKINGS CLAUSE ABSENT FEDERAL AVIATION ADMINISTRATION REGULATIONS.—Section 336(a) of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note) is amended—

(1) in paragraph (4), by striking ‘‘; and’’ and inserting a semicolon;

(2) in paragraph (5), by striking the period at the end and inserting ‘‘; and’’; and

(3) by adding at the end the following: ‘‘(6) when flown in the immediate reaches of the airspace above property (as defined in section 3(c) of the Drone Federalism Act of 2017), the operator has the permission of the property owner.’’. (c) DEFINITION.—In this section, the term ‘‘immediate reaches of the airspace above property’’, with respect to the operation of a civil unmanned aircraft system, includes—

(1) any area within 200 feet above the ground level of the property;

(2) any area within 200 feet above any structure on the property; and

(3) any area where operation of the aircraft system could interfere with the enjoyment or use of the property.

SEC. 4. PILOT PROGRAM ON FEDERAL PARTNERSHIPS.

(a) IN GENERAL.—Not later than one year after the date of the enactment of this Act, the Administrator shall enter into agreements with not more than 10 State, local, or tribal governments to establish pilot programs under which—

(1) the Administrator shall provide technical assistance to such governments in regulating the operation of civil unmanned aircraft systems, including through the use of the latest available technologies; and

(2) the Administrator and such governments shall coordinate efforts with respect to the enforcement of regulations relating to the operation of civil unmanned aircraft systems.

(b) SELECTION.—In selecting among State, local, and tribal governments for purposes of establishing pilot programs under subsection (a), the Administrator shall seek to enter into agreements with—

(1) governments that vary in their size and intended approach to regulation of civil unmanned aircraft systems; and

(2) not less than one State government, not less than one county government, not less than one city government, and not less than one tribal government.

(c) UNMANNED AIRCRAFT SYSTEMS TRAFFIC MANAGEMENT SYSTEM.—The Administrator shall coordinate with Administrator of the National Aeronautics and Space Administration to ensure that participants in pilot programs established under subsection (a) are consulted in the development of the unmanned aircraft systems traffic management system under subsection (a) section 2208 of the FAA Extension, Safety, and Security Act of 2016 (Public Law 114–190; 49 U.S.C. 40101 note) and the pilot program under subsection (b) of that section.

(d) REPORT REQUIRED.—Not later than 2 years after establishing the pilot programs required by subsection (a), the Administrator shall submit to Congress, and make available to the public, a report identifying best practices for State, local, and tribal governments to regulate the operation of civil unmanned aircraft systems and to collaborate with the Federal Aviation Administration with respect to the regulation of such systems.

 

SEC. 5. RULE OF CONSTRUCTION.

Nothing in this Act shall be construed—

(1) to diminish or expand the preemptive effect of the authority of the Federal Aviation Administration with respect to manned aviation; or

(2) to affect the civil or criminal jurisdiction of—

(A) any Indian tribe relative to any State or local government; or

(B) any State or local government relative to any Indian tribe.

 

SEC. 6. DEFINITIONS.

In this Act:

(1) ADMINISTRATOR.—The term ‘‘Administrator’’ means the Administrator of the Federal Aviation Administration.

(2) CIVIL.—The term ‘‘civil’’, with respect to an unmanned aircraft system, means that the unmanned aircraft is not a public aircraft (as defined in section 40102 of title 49, United States Code).

(3) INDIAN TRIBE.—The term ‘‘Indian tribe’’ has the meaning given that term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).

(4) LOCAL GOVERNMENT.—The term ‘‘local’’, with respect to a government, means the government of a subdivision of a State.

(5) STATE.—The term ‘‘State’’ means each of the several States, the District of Columbia, and the territories and possessions of the United States.

(6) TRIBAL GOVERNMENT.—The term ‘‘tribal’’, with respect to a government, means the governing body of an Indian tribe.

(7) UNMANNED AIRCRAFT; UNMANNED AIRCRAFT SYSTEM.—The terms ‘‘unmanned aircraft’’ and ‘‘unmanned aircraft system’’ have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).


Complete Guide to Taylor v. FAA (Drone Registration Lawsuit)

Summary of the Drone Registration Lawsuit

drone-registration-lawsuitJohn Taylor and some other attorneys (myself being one of them) challenged the FAA. There were three cases initially filed and consolidated. The basic way to understand the issues in all three cases is Section 336 of the FAA Modernization and Reform Act of  2012 which says the “Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft.”

  • The FAA switching interpretations from model aircraft not being required to be registered to now being required to be registered was a prohibited interpretive rule. (No rule or regulation).
  • The creation of Part 48 was a regulation “regarding model aircraft[;]” thus, it is illegal.
  • The switching interpretations to apply the Special Flight Rules Area around D.C. to model aircraft is an interpretive rule in violation of 336.

 

Table of Contents

Note: the FAA created a program to get your $5 registration refund and also your data deleted from the registry. 

Why This Drone Registration Lawsuit Was Important

The reason why this case is important is that this is the first real high-level court with a substantive ruling.

This is a federal circuit court – right below the United States Supreme Court.

This was a short unanimous decision with no concurring or dissenting opinions. That is sending a big message to the FAA that this is settled law.

 

 

Who Is Affected By This Ruling?

This ruling is only for those flying their aircraft in accord with Section 336. This ruling does NOT apply to commercial or public aircraft.  This means the model aircraft being flown must be:

(1) capable of sustained flight in the atmosphere;

(2) flown within visual line of sight of the person operating the aircraft; and

(3) flown for hobby or recreational purposes.

AND

(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

 

Keep in mind that just because you are flying recreationally does NOT mean you are in this protected category. A great example is people flying recreationally but not in accord with a community-based organization’s safety guidelines. These people are really recreational flyers who are operating under Part 107.  See below in the myths and misconceptions area for more info.

Also, the ruling was regarding the application of a NEW regulation towards model aircraft, but the court never ruled on whether the FAA could apply Part 47 (the already created paper based form of registration) to Section 336 model aircraft.

Where Are We Going from Here?

The FAA can choose to ask for a rehearing, but the D.C. Circuit Handbook of Practice says, “[v]ery few petitions for rehearing are granted. Sanctions may be imposed as a penalty for filing a petition for rehearing found to be wholly without merit.”

Another option is to file a petition to the United States Supreme Court. Something like 1-2% of the cases appealed to the Supreme Court are granted certiorari to be argued at the U.S. Supreme Court. This means that there is a high chance this is the final stop for this case.

Additionally, this is NOT the only case. There are two other cases out there!

Taylor v. FAA – Part 2

There is a fourth case Taylor filed that was consolidated with Electronic Privacy Information Center‘s challenge. The fourth case can be summed up as Part 101 is a regulation created “regarding model aircraft.” Part 101 was literally a copy-paste of Part 336 which makes it a per se violation.

 

Why was this 4th lawsuit filed?

 

The big reason why is the FAA can cause a lot of problems by creating interpretations of the different portions of Part 101 and if challenged in court, they would have a high chance of winning under Chevron deference. 

 

The FAA could create some interpretation saying a community-based organization must meet such-n-such standards for it to be recognized or they could say within line of sight means no first person view flying but only using your eyeballs.

 

Based upon the court’s ruling, there is a chance Part 101 will be struck down. The FAA will likely lose a second time.

The Academy of Model Aeronautics Lawsuit

The Academy of Model Aeronautics filed a lawsuit in August 2014 challenging the FAA’s model aircraft interpretation. The case has sat in abeyance but recently, the AMA has indicated they will move forward with the case. I’m not sure why it has just lingered in the D.C. Circuit for 16 months.

 

How the Court Ruled:

Taylor’s Arguments

Court’s Ruling

The creation of Part 48 was a regulation.“[T]he 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. …. In short, the Registration Rule is a rule regarding model aircraft.”
The FAA switching interpretation from model aircraft not being required to be registered to now being required to be registered was a prohibited interpretive rule.Footnote 1. “Taylor also purports to challenge the FAA’s October 2015 announcement that it was reviewing its registration requirements for model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is subsumed by Taylor’s challenge to the Registration Rule. We therefore do not separately consider it here.”
The interpretation regarding the Special Flight Rules Area around D.C. is an interpretation in violation of 336.“We need not consider that question because Taylor’s challenge is untimely.”

Issues Raised in the Drone Registration Lawsuit the Court did NOT Rule On.

  • Whether the FAA has jurisdiction to regulate the lower portions of the sky?
  • Whether the interpretation now requiring registration under Part 47 is in violation of 336?
  • Whether the interpretation applying the special flight rules around D.C. apply to model aircraft in violation of 336?
  • Whether the FAA has jurisdiction to register people, not aircraft, under their enabling statutes in Title 49?
  • Whether Part 48, as applied to non-recreational operators, was created in violation of the Administrative Procedures Act?

To see very in-depth discussions on the issues NOT answered, see my articles:

 Here is the audio recording of the oral arguments before the judges.

 

Questions Left Unanswered

  • Does anyone get their $5 back?
  • What is the FAA going to do with the all the registration data?
  • Can the FAA still regulate model aircraft flyers under Part 47?

 

John Taylor and I talking about the Case on SUASNEWS:

Who Has Taken What Side In The Drone Registration Case Ruling

Favorable to Drone Registration:

  • AUVSI – “AUVSI is disappointed with the decision today by the U.S. Court of Appeals to reject the FAA’s rule for registering recreational unmanned aircraft systems (UAS). A UAS registration system is important to promote accountability and responsibility by users of the national airspace, and helps create a culture of safety that deters careless and reckless behavior. We plan to work with Congress on a legislative solution that will ensure continued accountability across the entire aviation community, both manned and unmanned.” from AUVSI STATEMENT ON U.S. COURT OF APPEALS DECISION ON UAS REGISTRATION
  • Small UAV Coalition – “The viability and growth of the UAS industry is contingent on the safe and responsible integration of UAS technology. This is only possible if all operators – commercial and recreational alike – understand their responsibilities and remain informed of the evolving standards around UAS technology. Today’s ruling generates uncertainty by eliminating a tool developed to maintain accountability and enable streamlined communication between the FAA and recreational UAS operators.The FAA must have appropriate authority to maintain reasonable oversight of UAS operations, including management of a national UAS registry, which is the first step to identifying UAS operating in the national airspace. A lack of reasonable authority will inhibit safe integration and ultimately obstruct commercial UAS operations, putting the United States at risk of falling behind global competitors who are increasingly embracing the benefits of UAS. The Small UAV Coalition looks forward to working with lawmakers and regulators to ensure that the FAA has the authority necessary to facilitate the safe, widespread, and expeditious integration of UAS into the national airspace (NAS).” – Press Release on Small UAV Coalition Website
  • Commercial UAV Alliance – The Commercial Drone Alliance is committed to promoting the safety and security of the National Airspace System (NAS). We believe registering drones and having reliable identification of all operators is critically important to holding operators accountable, and enhances the safety of the NAS. The registration requirement also provided much-needed education around the rules for safe hobbyist drone flight. As a policy matter, we believe the lack of a registration requirement could ultimately jeopardize the safety and security of the NAS. The Alliance looks forward to working with Congress to ensure that the FAA has clear authority to require registration of all drones, including hobbyist drones. –Press Release
  • Drone Manufacturer’s Alliance – “DMA is studying the implications of today’s registration-related court ruling, but believes the existing system has worked well to protect the interests of safe and responsible pilots as well as the interests of society at large. As we wait for word on whether the FAA will appeal this ruling, we hope all sides see the benefit of a reasonable and minimally restrictive form of basic regulation that has helped make drone operations in America overwhelmingly safe. We look forward to working with policymakers on a long-term legislative solution.” –Press Release
  • Helicopter Association International – “Helicopter Association International (HAI) strongly disagrees with the decision by the U.S. Court of Appeals to halt the registration of drones deemed to be “model aircraft.” Helicopters routinely operate at the same low altitudes as drones, and we in the helicopter industry are deeply concerned about our ability to fly safely in air space where pilots could encounter any unmanned aircraft, be it commercial or otherwise. One valuable component of the FAA’s drone registration program is the opportunity to educate the general population about the hazards of careless drone operation, and we believe that the FAA’s drone registration program serves to protect everyone in the air and on land. HAI strongly urges Congress to allow the FAA to do what the FAA does best; to provide safe and efficient use of our national airspace. We request that the FAA be given the governance and oversight over all forms of aircraft in order to ensure the safety of the National Airspace System.” – Press Release
  • (Ret.) Major General Poss who Founded ASSURE poss-tweet

In favor of the Court’s Ruling:

  • Drone Users Group – A statement that DUG supports the ruling is not needed. DUG has been the only organization that has helped the Taylor case by helping organize a fund to reimburse for court costs. DUG has been with Tayor right from the begining.
  • Academy of Model Aeronautics – “AMA is encouraged to see the Court affirm the strength of the Special Rule for Model Aircraft, otherwise known as Section 336, under which our members operate. For decades, AMA members have registered their aircraft with AMA and have followed our community-based safety programming. It is our belief that a community-based program works better than a federally mandated program to manage the recreational community.” – SUAS News

Other Interesting Quotes:

  • Federal Aviation Administration – “We are carefully reviewing the U.S. Court of Appeals decision as it relates to drone registrations. The FAA put registration and operational regulations in place to ensure that drones are operated in a way that is safe and does not pose security and privacy threats. We are in the process of considering our options and response to the decision.” from Press Release – FAA Statement Regarding US Court of Appeals Decision
  • Brendan Schulman – ‘”The FAA’s innovative approach to drone registration was very reasonable, and registration provides for accountability and education to drone pilots,’ the company’s VP of Policy & Legal Affairs Brendan Schulman said in a statement offered to TechCrunch.’  ‘I expect the legal issue that impedes this program will be addressed by cooperative work between the industry and policymakers.'”  -Tech Crunch
  • Lisa Ellman – “‘The goal of the registration rule was to assist law enforcement and others to enforce the law against unauthorized drone flights, and to educate hobbyists that a drone is not just a toy and operators need to follow the rules,’ said Lisa Ellman, an attorney and specialist on the drone regulation with the law firm Hogan Lovells. ‘These are worthy goals, so if this ruling stands it wouldn’t surprise us to see a legislative response here.'” – Recode

 

Myths and Misconceptions Surround this Ruling

 

faa-drone-prosecution-336-model-aircraftMyth 1 – Recreational Drones Are Now Completely Unregulated. 

This is not true. The FAA already regulates recreational flying that does NOT fall into the Section 336 protected bubble -it’s called Part 107.

Section 336 says the FAA cannot create a rule or regulation regarding model aircraft if: …..

“(2) the aircraft is operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization; …….

…….

(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft[.]”

The bad actors we see on the news are not flying in accord with community-based organization SAFETY guidelines. (AMA safety code says,  model aircraft cannot be flown in a careless or reckless manner.) This means those recreational flyers do NOT even fall into the Section 336 protected category (big green circle to the left) and would be surprised to learn they fall into Part 107 which requires registration!

 

Myth 2 – The FAA CANNOT Do Anything to Model Aircraft Flyers

What might come as a shock to many, Congress gave the FAA the ability to prosecute Section 336 model aircraft flyers who “endanger the safety of the national airspace system.” (Small green circle inside the red circle to the left).  Section 336(b) says, “Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”

The FAA can regulate and prosecute non-336 recreational flyers and only prosecute model aircraft endangering the safety of the national airspace. The FAA has tools in their toolbox for both scenarios!

 

Myth 3 – You Took Away a Good Tool for Finding the Bad Guys!

Was registration a tool that could be helpful? Yes. Was the way the FAA did it good? Definitely no.

1. History Repeating Itself. 

The next part sounds like history repeating itself. Let’s go back in time to 1988 where the U.S. Congress passed the Federal Aviation Administration Drug Enforcement Assistance Act of 1988 (‘‘DEA Act’’). Because the following text was so good, I just copied-pasted the following text from the FAA’s own Federal Register post from January 2007:

On March 12, 1990, the FAA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (55 FR 9270). The NPRM proposed changes to certain requirements concerning registration of aircraft, certification of pilots, and penalties for registration and certification violations. The NPRM also announced non-rulemaking procedural changes. We intended the changes to correct deficiencies in our systems and procedures identified in the FAA Drug Enforcement Assistance Act of 1988 (Pub. L. 100-690) (hereafter, “the Act”). The Act amended FAA’s authorizing legislation (49 U.S.C. 40101 et seq.) to-

……..

Modify the aircraft registration system to more  effectively serve the needs of buyers and sellers of aircraft, drug  enforcement officials, and other users of the system;

……..

The comment period closed on May 11, 1990. We received 373  comments, very few of which expressed support for the proposed changes. For the most part, commenters believed that the proposed changes would impose burdens only on law-abiding citizens, while criminals would simply circumvent them. As a result, FAA decided to delay the rulemaking process to assess whether specific technological improvements to the FAA Civil Aviation Registry (the Registry) could meet the intent of the Act. We believe we have now fulfilled most requirements of the Act through changes to systems and procedures used by the Registry. For this reason, we have withdrawn the 1990 NPRM in its entirety. Readers interested in the specific actions we have taken to fulfill the requirements of the Act should refer to the notice withdrawing the 1990 NPRM (70 FR 72403, Dec. 5, 2005).

To complete our obligations under the Act, we are proposing to address two deficiencies noted in the Act and not fully addressed through changes made to the Registry. The first issue concerns the proper identification of pilots. Law enforcement agencies must be able to establish the true identity of those who hold pilot certificates.  The second issue concerns the timely reporting of aircraft sales or other transfers of ownership. Law enforcement agencies must be able to determine who is the owner of an aircraft, particularly when ownership of the aircraft has recently been transferred.

Wow. The FAA admitted they had deficiencies. And what could those be?

2. Aircraft Registration Deficiencies Identified by Congress and the FAA

Congress told us what some of the deficiencies were in the DEA Act in Section 7205:

“[The FAA] shall assure positive and verifiable identification of each person applying for or holding such a certificate and shall address, at a minimum, each of the following deficiencies in and abuses of the existing system:

(1) The use of fictitious names and addresses by applicants for such certificates.

(2) The use of stolen or fraudulent identification in applying for such certificates.

(3) The use by a person applying for such a certificate of a post office box or ‘mail drop’ as a return address for the purpose of evading identification of such person’s address.

(4) The use of counterfeit and stolen airman’s certificates by pilots.

(5) The absence of information concerning physical characteristics of holders of such certificates.”

 

3. Comparison of Registry Deficiencies from the DEA ACT to Part 48

Let’s now compare these 5 points from the DEA ACT to the Part 48 registry as applied to model aircraft.

DEA ACT

Part 48

(1) The use of fictitious names and addresses by applicants for such certificates.Section 48.100(b) asks for name, physical address (unless you can’t receive mail there, then a mailing address also), email address.   THE BIG PROBLEM IS NO ONE CHECKS HOW ACCURATE IT IS! THIS IS ON THE HONOR SYSTEM.
(2) The use of stolen or fraudulent identification in applying for such certificates.Once again, a person could just steal a person’s identity and register the drone. Furthermore, they don’t really need to even steal it. All you need to know is a person’s name, their address, and have a disposable email address.
(3) The use by a person applying for such a certificate of a post office box or ‘mail drop’ as a return address for the purpose of evading identification of such person’s address.No one checks the address against a government issued ID when registering so how does anyone know where anyone lives?! Furthermore, you don’t have to have a government ID with you when you fly the drone for law enforcement to compare names and addresses.
(4) The use of counterfeit and stolen airman’s certificates by pilots.Part 48 was only registration and not an airmen certificate, but subsection 4 raises a good point about how does anyone know if the registration is stolen or if the registration (sharpied on or taped on) was counterfeit of a legitimate registration!
(5) The absence of information concerning physical characteristics of holders of such certificates.The model aircraft registration only asked for a name, an address that can receive mail, and an email address. Nothing about the person.

In short, Part 48 fails on the points Congress brought up which were designed to make things more secure with the Part 47 paper-based registry.

4. Not All Drones Are Registered

Below I graphed out actual registrations versus the FAA’s projection of hobby model aircraft using data from the FAA’s 2017 Aerospace Forecast and multiple speeches Administrator Huerta gave as archived on the FAA’s website.

part-48-registration-vs-projected-hobby-drones

You can see that there is a gap between what the FAA has estimated and what has actually been registered.

The only way registration makes sense is when it is done at the point of sale, with the seller responsible for reporting, as opposed to this “honor system” which the FAA has been operating under.

The graph above proves what everyone knew, that people would NOT register.

 

 

5. Many Reasons Why This Part 48 Registration Would Not Work.

I raised many issues when the registration ARC was first formed. I’m going to list below some of the big problems that I pointed out (all the way back in the fall of 2015) in my article 11 Big Problems with the FAA’s Mandatory Drone Registration.

What happens when the person does NOT want to fly anymore?

So the citizen has to register his drone. The drone registration last for 3 years under the current regulations. Are you going to force people to re-register their drones? Must they always have the drone registered? I can see a large group of people just letting the registration lapse and then selling their drones off on Amazon, Ebay, Craiglist, flea markets, and garage sales. Are the sellers required to keep paperwork of who they sold the drone to?

How are you going to identify the aircraft after the incident/crime/accident?

The pieces of a drone sucked into a jet engine are going to be all over the place. Are you going to require metal placards attached to the drone? Furthermore, it is easy to scratch off a serial number. Is possession of a drone with a scratched-off serial number going to become illegal?

The two main groups that are causing problems are the (1) “how high can it fly” group and the (2) “I will fly wherever I want” group. Both of these groups can be countered with geo-fencing far better than registration. Registration points you to who might have caused the incident, geo-fencing can help prevent it.

Mandatory drone registration does not help identify drones being seen by pilots but only if they are captured.

Manned aircraft N-numbers are hard enough to see. I can’t even see the logo on my Cheerson CX-10 from 10 feet. If there is a crash, do you really think you are going to find the small piece of plastic that had the “Sharpie-drawn” N-number on it, the mailbox number stickers, or the serial barcode sticker under the gimbal? The only counter to this is taglets mixed in the plastic matched up with laser etched numbers on the critical parts that would most likely survive a crash (motors, etc.). Simple registration is useless unless this is a comprehensive manufacturer backed plan. What happens if DJI requires registration but Yuneec does not?

Myth 4 –  This was necessary for security!

Do you know who owns the drones in the gapart-48-registration-vs-projected-hobby-dronesp between estimated and actually registered? I don’t – and neither does the FAA.

There was no point of sale requirement for registration.

Security has the word “secure” in it. How was this system secure?

Part 48 “Security” = A system where citizens voluntarily type in whatever information honestly, without 3rd party verification, and then tape on the registration to their drone.

The FAA should have looked to the DEA Act and Part 47 if they were really interested in security.

 

 

 

Myth 5 – This was necessary for safety!

HOW? A taped-on registration number brought about accountability? Tape can be easily removed, serial numbers scraped, or Sharpie-drawn marks marked over.

The follow-up response is that the registration checkout provided education which increased safety.

 

 

Myth 6 – Any substantial education that could have been received by those registering is now gone!

This is simply not true because (1) the FAA’s website with all its literature is still up and (2) the information provided in the checkout process was minuscule and legally wrong.

When you go through the registration process it takes you to one page where you have to acknowledge safety guidelines and under penalty of perjury, have to click a box that says, “I have read, understand and intend to follow the safety guidance.”

The Safety Guidance says:

Safety Guidance

My Commentary

I will fly below 400ft.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will fly within visual line of sight.Section 336 lists this.
I will be aware of FAA airspace requirements.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly directly over people.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly over stadiums and sports events.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly near emergency response efforts such as  fires.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly near aircraft, especially near airports.Just wrong.
I will not fly under the influence.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.

 

part 48 registration

The “safety guidelines” on the certificate of registration do not completely match the safety guidelines in the checkout process!  It was as easy as copy-paste, but the FAA failed to make them match or include all the safety points.

So I do admit that there was education that went on through the registration process but it was (1) minuscule, (2) legally inaccurate, (3) not complete, and (4) not the ONLY way the public could be educated.

Myth 7  – We needed registration to help prosecute the bad actors. 

A reporter I was working on a story with  kindly shared this information with me that he obtained from Les Dorr, the official FAA spokesperson.

Since 2014, the FAA has only prosecuted 48 drone operators. Let that sink in. Only 48.

The FAA does not need any more tools in their toolbox. The FAA has many regulations to nab the bad guys. The FAA’s enforcement philosophy is education rather than enforcement which results in many investigations and cases being dropped. The enforcement philosophy and understaffed legal department are the problems, not the lack of regulations.

If FAA really wanted to crack down on bad actors, they need to ask Congress for more money to beef up their legal department to focus on UAS prosecutions. They also need to change their enforcement philosophy.

This whole thing strikes me as crazy. Many are upset at this ruling but seem to be silent when it comes to commercial drone operators losing business to illegal operators.Law abiding people are losing work right now to illegal operators and the FAA has only 48 prosecutions to show for it? All across this country legal operators are losing work because the FAA fails to prosecute.

On top of this, John Taylor requested information under the Freedom of Information Act “seeking all records of requests by law enforcement authorities or others to identify registrants of specific small unmanned aircraft based on the registration number located on such aircraft.”  Here is the response.

taylor-foia-registation

 

How this Ruling is a Good Thing

This ruling is very important because it stands for the rule of law. The government we live under is a government of laws, not people.  We are not governed by arbitrary decisions of government officials but by the law. Everyone must follow the law – drone flyers as well as the FAA.

This case set the broken bone that was Part 48. The FAA has the opportunity to regulate lawfully and to now be an example to the unlawful. It is extremely damaging to safety to declare to the unsafe flyers that they must follow the laws created while the FAA is completely ignoring what Congress said in Section 336 and the Administrative Procedures Act. The unsafe flyer will say to himself, “The FAA isn’t following the law, why should I?”

 

Suggestions for the FAA:

My helping with the case was not to just troll the FAA but to uphold the rule of law. I’m very much for safety. I’m a FAA-certificated flight instructor who drilled into the heads of my students -safety -safety- safety. One of my flight instructors died in a plane wreck. I have a dead man’s signature in my logbook who left a wife and baby behind. I can appreciate the importance of safety.

In light of my love for safety and the rule of law, I provide these suggestions to the FAA to increase safety, lawfully:

  • Create regulations that are compliant with Section 336. If you don’t like Section 336, ask Congress to change, but don’t just ignore it. Everyone should follow the law, right?
    • This most likely means requiring remote ID-related regulations will need to be crafted as to not encompass 336 model aircraft, or you should get Congress to repeal or change 336.
  • There is a second Taylor v. FAA case coming down the pike shortly. I estimate it will be ruled upon in 3-4 months. Based upon my reading of the latest ruling the FAA stands to lose a second time. Additionally, with the Trump 2 for 1 deal that happened, the FAA needs sacrifical regulations to repeal to create pro business drone regulations. I suggest the FAA use Part 101 as a sacrificial regulation to get out the over people regulations. This upholds the rule of law and promotes business!
  • Change your enforcement philosophy against drone operators. The current system is so lenient that very few cases reach prosecution.
  • Leverage the commercial operators out there who would be more than willing to turn in all their illegal competitors. There is an army of people out there willing to give the FAA info, but many have stopped because the FAA does very little.
  • Hold accountable large companies who hire illegal operators. I think there is some possibility here, depending on the facts, to prosecute companies who choose the illegal operators rather than safe operators. Some companies hire illegals as sub-contractors.  If there are any objections, the safe operator loses the job and the company finds a person who is willing to do whatever the company wants. Speak to some of the attorneys in the general counsel’s office. I’m sure some of them will agree that the definition of “operator” and “person” in the regulations is sufficiently broad, under certain facts, to capture large companies.
  • Ask Congress for more funding for legal staff to prosecute drone operators.
  • Maybe create a donation process where people can opt-in easily to donate their $5 from the registration back to the FAA to hire attorneys to prosecute illegal and unsafe drone flyers.

Suggestions for Industry

  • Stop pitting commercial versus recreational. What it should be is safe vs unsafe. People who fall into the 336 category are going to have to be SAFE to be protected; otherwise, they are not in this category and can be required under Part 107 to be registered.
  • Actively working to undue 336 is a waste of political influence. 336 protected flyers are by definition having to fly according to CBO safety guidelines. Commercial industry should focus on getting the FAA to prosecute the illegal and unsafe operators. There are commercial operators right now losing thousands of jobs across the US because the FAA won’t crack down on the illegal operators. Only a total of 48 drone enforcement actions have happened since 2014. Stop focusing on undoing 336 and focus on stopping those that take food off the table of your constituents or buyers of your products!

Suggestions for Flyers:

  • Call your federal congressman and senator and tell them how you are following the law and are losing business to illegal operators. The FAA needs more money to increase their legal man power and they need to change their enforcement philosophy.
  • The organizations you are a member of, ask them what they are doing to help YOU.  Find out if they are actually doing something or cancel your membership and use those funds to help yourself.
  • Report illegal and unsafe flyers to your local FAA flight standards district office. You can find you local one here.

 

Helpful Graph for Understanding the Overall Situation

taylor-v-faa-drone-registration-lawsuit

 

Actual Text of the Court’s Opinion with my Emphasis

 

Below is the opinion of the court. I bolded text below which was interesting.

 

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2017 Decided May 19, 2017
No. 15-1495

JOHN A. TAYLOR,
PETITIONER
v.
MICHAEL P. HUERTA, AS ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,
RESPONDENT

Consolidated with 16-1008, 16-1011
On Petitions for Review of Orders
of the Federal Aviation Administration
John A. Taylor, pro se, argued the cause and filed the briefs for petitioner.
R. Ben Sperry was on the brief for amicus curiae TechFreedom in support of petitioner.
Abby C. Wright, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General at the time the brief was filed, Michael S. Raab, Attorney, and Paul M. Geier, Assistant General Counsel for Litigation, Federal Aviation Administration. Richard H. Saltsman, Attorney, Federal Aviation Administration, entered an appearance.

 

 

 

Before: KAVANAUGH and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH.

 

 

 

KAVANAUGH, Circuit Judge: Congress has charged the Federal Aviation Administration with maintaining the safety of the Nation’s air traffic. As small unmanned aircraft (sometimes known as drones) have become more popular, the number of unmanned aircraft-related safety incidents has increased. In 2015, in an effort to address that trend, the FAA promulgated a rule known as the Registration Rule. That Rule requires the owners of small unmanned aircraft operated for recreational purposes to register with the FAA. Unmanned aircraft operated for recreational purposes are known as “model aircraft,” and we will use that term throughout this opinion. Separately, the FAA published a notice, known as Advisory Circular 91-57A, announcing that model aircraft would be subject to certain flight restrictions in the Washington, D.C., area.

 

 

 

Petitioner John Taylor is a model aircraft hobbyist who is now required to register with the FAA. He has operated model aircraft from his home in the Washington, D.C., area, and he wants to continue to do so without registering or complying with the new flight restrictions. Taylor filed petitions in this Court to challenge the FAA’s Registration Rule and the Advisory Circular.

 

 

 

To begin, Taylor does not think that the FAA had the statutory authority to issue the Registration Rule and require him to register. Taylor is right. In 2012, Congress passed and President Obama signed the FAA Modernization and Reform Act. Section 336(a) of that Act states that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition. We therefore grant Taylor’s petition and vacate the Registration Rule to the extent it applies to model aircraft.

 

Taylor challenges Advisory Circular 91-57A on the ground that the Circular likewise violates Section 336(a). That Circular prohibits the operation of model aircraft in various restricted areas, including the Flight Restricted Zone around Washington, D.C. But Taylor’s petition challenging the Advisory Circular is untimely. By statute, a petitioner must challenge an FAA order within 60 days of the order’s issuance unless there are reasonable grounds for delay. 49 U.S.C. § 46110(a). Taylor acknowledges that he filed his petition challenging the Advisory Circular outside the 60-day window. He did not have reasonable grounds for the late filing. His petition for review of Advisory Circular 91-57A is therefore denied.

 

 

I

 

 

Congress has directed the FAA to “promote safe flight of civil aircraft” and to set standards governing the operation of aircraft in the United States. 49 U.S.C. § 44701(a). Congress has also required “aircraft” to be registered before operation. See id. §§ 44101, 44103. To register, aircraft owners must complete a registration process that is quite extensive, as one would imagine for airplanes.

 

 

But the FAA has not previously interpreted the general registration statute to apply to model aircraft. Instead, the FAA has issued an optional set of operational guidelines for model aircraft. The FAA’s Advisory Circular 91-57, titled Model Aircraft Operating Standards and published in 1981, provided suggestions for the safe operation of model aircraft. Under that Advisory Circular, compliance with the Circular by operators of model aircraft was voluntary. See J.A. 1.

 

 

As unmanned aircraft technology has advanced, small unmanned aircraft have become increasingly popular. In response, the FAA has taken a more active regulatory role. In 2007, the FAA promulgated a notice announcing a new regulatory approach to unmanned aircraft. See Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6689 (Feb. 13, 2007). In the notice, the FAA distinguished between commercial and recreational unmanned aircraft. Under the new regulatory approach, commercial unmanned aircraft are subject to mandatory FAA regulations. Those regulations require operators to report the aircraft’s intended use, time or number of flights, and area of operation, among other things. Id. at 6690. By contrast, this notice did not alter the longstanding voluntary regulatory approach for model aircraft. Id.

 

 

 

In 2012, Congress weighed in on the debate over regulation of unmanned aircraft. Congress passed and President Obama signed the FAA Modernization and Reform Act of 2012, Pub. L. No. 112–95, 126 Stat. 11 (codified at 49 U.S.C. § 40101 note). The Act codified the FAA’s longstanding hands-off approach to the regulation of model aircraft. Specifically, Section 336 of the Act, called the “Special Rule for Model Aircraft,” provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Id. § 336(a). The Act defines “model aircraft” as “an unmanned aircraft that is — (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.” Id. § 336(c).

 

 

Notwithstanding that clear statutory restriction on FAA regulation of model aircraft, in December 2015 the FAA issued a final rule requiring owners of all small unmanned aircraft, including model aircraft, to register with the FAA. See Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015). The Registration Rule requires model aircraft owners to provide their names; physical, mailing, and email addresses; and any other information the FAA chooses to require. Id. at 78,595-96. The Registration Rule also creates an online platform for registration, establishes a $5 per-individual registration fee, sets compliance deadlines, and requires all small unmanned aircraft to display a unique identifier number issued by the FAA. Id. Model aircraft owners who do not register face civil or criminal monetary penalties and up to three years’ imprisonment. Id. at 78,630.

 

 

Also in 2015, the FAA withdrew Advisory Circular 91-57 and replaced it with Advisory Circular 91-57A. See J.A. 3-5. Among other things, the revised Circular provided that model aircraft could not fly within the Flight Restricted Zone covering Washington, D.C., and the surrounding areas without specific authorization. See id. at 5.
Petitioner Taylor is a model aircraft hobbyist living in the Washington, D.C., area. Taylor argues that Section 336 of the FAA Modernization and Reform Act bars both the FAA’s Registration Rule and Advisory Circular 91-57A.1

 

 

II

 

 

We first consider Taylor’s challenge to the Registration Rule.  Section 336 of the FAA Modernization and Reform Act of 2012 provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule is undoubtedly a rule. By requiring the prospective registration of all model aircraft, the Registration Rule announces an FAA “statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4) (defining “rule” for purposes of the Administrative Procedure Act). In addition, the Registration Rule is a rule “regarding a model aircraft.” FAA Modernization and Reform Act § 336(a).

 

 

 

The Registration Rule sets forth requirements for “small unmanned aircraft, including small unmanned aircraft operated as model aircraft.” Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594, 78,594 (Dec. 16, 2015) (emphasis added). Lest there be any doubt about whether the Registration Rule is a rule “regarding a model aircraft” for purposes of Section 336, the Registration Rule states that its “definition of ‘model aircraft’ is identical to the definition provided in section 336(c) of Public Law 112–95,” the FAA Modernization and Reform Act. Id. at 78,604.

 

 

 

 

In short, the 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.

The FAA’s arguments to the contrary are unpersuasive. First, the FAA contends that the Registration Rule is authorized by pre-existing statutory provisions that are unaffected by the FAA Modernization and Reform Act. Specifically, the FAA notes that, under longstanding statutes, aircraft are statutorily required to register before operation. See 49 U.S.C. §§ 44101, 44103. But the FAA has never previously interpreted that registration requirement to apply to model aircraft. The FAA responds that nothing in the 2012 FAA Modernization and Reform Act prevents the FAA from changing course and applying that registration requirement to model aircraft now. The FAA claims that the Registration Rule is therefore not a new requirement at all, but merely a “decision to cease its exercise of enforcement discretion.” FAA Br. 20.

 

 

 

We disagree. The Registration Rule does not merely announce an intent to enforce a pre-existing statutory requirement. The Registration Rule is a rule that creates a new regulatory regime for model aircraft. The new regulatory regime includes a “new registration process” for online registration of model aircraft. 80 Fed. Reg. at 78,595. The new regulatory regime imposes new requirements – to register, to pay fees, to provide information, and to display identification –on people who previously had no obligation to engage with the FAA. Id. at 78,595-96. And the new regulatory regime imposes new penalties – civil and criminal, including prison time – on model aircraft owners who do not comply. See id. at 78,630. In short, the Registration Rule is a rule regarding model aircraft.2

 

 

 

Second, the FAA argues that the Registration Rule is consistent with one of the general directives of the FAA Modernization and Reform Act: to “improve aviation safety.” FAA Modernization and Reform Act preamble. Aviation safety is obviously an important goal, and the Registration Rule may well help further that goal to some degree. But the Registration Rule is barred by the text of Section 336 of the Act. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188 (1994) (“Policy considerations cannot override our interpretation of the text and structure of the Act . . . .”). Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.

 

 

 

In short, Section 336 of the FAA Modernization and Reform Act prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft.” The Registration Rule is a rule regarding model aircraft. Therefore, the Registration Rule is unlawful to the extent that it applies to model aircraft.

 

 

III

 

 

We next consider Taylor’s challenge to FAA Advisory Circular 91-57A. The Circular prohibits the operation of model aircraft in certain areas, including in the Washington, D.C., Flight Restricted Zone. Taylor argues, among other things, that the Circular violates Section 336(a) of the FAA Modernization and Reform Act of 2012 because it too is a rule regarding model aircraft.

 

 

We need not consider that question because Taylor’s challenge is untimely. A person seeking to challenge an FAA order must file the challenge within 60 days of the order’s issuance. 49 U.S.C. § 46110(a). The FAA published notice of Advisory Circular 91-57A in the Federal Register on September 9, 2015. See Revision of Advisory Circular 91–57 Model Aircraft Operating Standards, 80 Fed. Reg. 54,367 (Sept. 9, 2015). Taylor filed his petition for review on January 12, 2016 – more than two months after the 60-day deadline had passed.

 

 

 

A court may allow a late petition filed if the petitioner has “reasonable grounds” for missing the deadline. 49 U.S.C. § 46110(a). Taylor advances two grounds for his delay. But neither constitutes reasonable grounds under this statute.

 

First, Taylor argues that the FAA did not provide adequate notice that it had issued the new Circular. But on September 9, 2015, the FAA published its revisions in the Federal Register. See 80 Fed. Reg. 54,367. And Congress has determined that publication in the Federal Register “is sufficient to give notice of the contents of the document.” 44 U.S.C. § 1507. Second, Taylor contends that the Advisory Circular itself was so confusing that it did not provide notice about the conduct it prohibited. That is inaccurate. The Circular states: “Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” J.A. 5.

 

 

 

Second, Taylor contends that the Advisory Circular itself was so confusing that it did not provide notice about the conduct it prohibited. That is inaccurate. The Circular states: “Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” J.A. 5.
Ultimately, Taylor admits that he simply did not know about the revised Circular until the FAA launched a “media blitz” to publicize it. Taylor Br. 68. That may be understandable. But under our precedent, Taylor must point “to more than simply ignorance of the order” as reasonable grounds for his delay. Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 521 (D.C. Cir. 2011). Taylor has not done so. His petition for review of Advisory Circular 91-57A is therefore untimely.
* * *
The FAA’s Registration Rule violates Section 336 of the FAA Modernization and Reform Act. We grant Taylor’s petition for review of the Registration Rule, and we vacate the Registration Rule to the extent it applies to model aircraft. Because Taylor’s petition for review of Advisory Circular 91-57A is untimely, that petition is denied.

 

So ordered.

 

Footnotes:

1 Taylor also purports to challenge the FAA’s October 2015 announcement that it was reviewing its registration requirements for model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is subsumed by Taylor’s challenge to the Registration Rule. We therefore do not separately consider it here.

2 We note that Section 336(b) expressly preserves the FAA’s authority to “pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.” FAA Modernization and Reform Act § 336(b). That provision, however, is tied to safety. It does not authorize the FAA to enforce any pre-existing registration requirement.

 

 


Ultimate Guide to Drone Laws (from a Lawyer & Pilot).

Interested in drone laws? It can be a pain to try and figure out what is applicable. That is why I created this page! :)

Where NOT to Look

Here is a tip, stay away from Facebook or anyone else who is a newbie to aviation. They tend to waste your time and provide bad guidance. Seriously, you should be very careful where you get information from – not everyone is qualified to give you information. You don’t install random pieces of software you find on the internet onto your computer, why would you do that for the laws and legal advice?

For example, I was reading a drone book by someone very popular on the internet which was just completely – flat out – totally- 100% wrong. I think this person just hired a copywriter to write the book which resulted in utter garbage. If you were to rely on that bad advice, you could get in trouble and be on the receiving end of a lawsuit or criminal prosecution.

You should vet everyone before you give them your time. Here, vet me by looking at my bio.

Where to look for info.

You should look at resources in this order:

  1. The actual law (Part 107, Part 101, Part 47, Part 48, etc.)
  2. The FAA’s website.
  3. My website! You can even use the search feature.
  4. Other competent drone lawyers or consultants (read the two articles below on how to find out as there are some really bad people out there).
  5. Your local Flight Standards District Office Aviation Safety Inspector, any FAA email on their website, etc.

I. United States Drone Laws

There are different levels of governmental authority in the U.S. We have a federated system where we are governed on certain things by the U.S. Federal Government and the state governments with those areas not enumerated to the U.S. government.

Additionally, the states have passed laws allowing counties, cities, and towns to regulate individuals.  At any given moment, a person can 3 or 4 levels of laws applying to them. For example, your drone operations could have the federal aviation laws, state drone laws, county drone laws, city or town laws, and maybe even HOA rules all applying to them.

Whether or not the states, counties, and cities can regulation drones is another big issue way outside of the scope of this article. As time goes on, things will shake out as to how much the states, counties, cities, and towns can regulate.

A. Federal Drone Laws

1. Federal Aviation Regulations (Enforced by the Federal Aviation Administration)

We immediately think of the Federal Aviation Administration (“FAA”) when it comes to drones. The FAA enforces the Federal Aviation Regulations (“FARs”) which apply to all sorts of things such as student training, airports, maintenance, flying, aircraft certification, rocket launches, etc.

The two parts of the FARs that apply to drone operators are Part 107 (for non-recreational operations) and Part 101 (for recreational operations). But that is NOT all!

All non-recreational drones are required to be registered under Part 47 or Part 48. All recreational drones weighing more than 250 grams are required to be registered also by either Part 47 or Part 48.

I have created many articles on the federal aviation regulations. I have listed below the most popular ones.

drone-laws-FAA-TSA-DOT-FCC-ITAR-EAR2. Other Federal Agencies

The FAA is not the only agency that regulates drones. There are also others! Keep in mind this list is not exhaustive.

NTSB. If you crash your drone, you are required to report to the National Transportation Safety Board! Additionally, you might need to file an aviation safety reporting system form which is administered by NASA! See my article on What are you required to do after a drone crash?

TSA. The Transportation Safety Administration administers the alien flight student program (governed by the alien flight student regulations). All FAA certificated flight instructors know this and have to be careful regarding providing training as well as doing security awareness training. As I read it, I think the TSA could assert jurisdiction over flight instructors training alien flight students.

DOT. The Department of Transportation has regulations regarding the transportation of hazardous material (i.e. drone medical delivery).

FCC. The Federal Communications Commission regulations radio transmitters, the frequencies they transmit on, and the power of the transmitter. Many people don’t even pay attention to that sticker that is on the back of your controller. Take a chance to read it over some time.

DOJ. The Department of Justice enforces the Federal Aviation Statutes in Title 49 of the United States Code.  The DOJ attorneys have been involved at least twice with drone operators: (1) the Skypan case which was originally started in the federal district court in Chicago and (2) in the federal district court in Connecticut with the Haughwout case (the kid who attached a gun and later a flamethrower to a drone).

DOC. You also have the Department of Commerce with the Export Administration Regulations (“EAR”) and the State Department with the International Trafficking in Arms Regulations (“ITAR”). Bard College’s Center for the Study of the Drone published an article detailing multiple prosecutions under ITAR.

NOAA. The National Oceanic and Atmospheric Administration (NOAA) sometimes gets involved because they have jurisdiction over national sanctuaries.  NOAA created frequently asked questions 
regarding NOAA’s regulated overflight zones of West Coast National Marine Sanctuaries.

Are model aircraft and Unmanned Aircraft System (drone) operations subject to NOAA regulated overflight zones?

A. Yes. Model aircraft and Unmanned Aircraft Systems (drones) propelled by motors qualify as motorized aircraft under regulations of the sanctuaries, and therefore must adhere to sanctuary regulated overflight zones. As with traditional aircraft, UAS could operate above the sanctuaries’ minimum altitude limits, provided Federal Aviation Administration (FAA) regulations allow them to fly at such altitudes. Current FAA rules impose altitude limitations on model aircraft and other Unmanned Aircraft Systems.

NPS. National Park Service has put out statements in the past prohibiting the operation of drones in national parks. Things have changed. It is hit or miss where you can fly at the different parks. Some locations have designated areas where you can fly but you have to check. Type in the name of the national park plus  “compendium” in Google and you should find some helpful results. Additionally, you should call ahead to see if anything has changed.

 

 

B. State Drone Laws

All 50! I created a state drone law directory of all 50 states.  I also included some additional resources that would be helpful from the American Legislative Exchange Counsel (ALEC), National Conference of State Legislatures, and the National League of Cities. There is also a link to a model state drone legislation from ALEC.

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II. International Drone Laws

There is no good reliable database of drone laws. I might create one as time goes on.

Below are the resources I have found on the internet that can assist you in finding the laws in a particular country.  I do not know how updated they are or accurate.  Use at your own risk.


South Dakota Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

Fortunately, at the time of the writing of this article, there are no state level drone laws in South Dakota. Keep in mind there might be local laws that still apply. This article is only on drone specific state laws.

I had to search around to find any PROPOSED bills. I could only find SB 22  and SB 80 which were both proposed in 2017.

Proposed Senate Bill 22 says:

FOR AN ACT ENTITLED, An Act to exempt certain unmanned aircraft systems from the requirement to be registered as aircraft.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That chapter 50-11 be amended by adding a NEW SECTION to read:

The provisions of §§ 50-11-8 and 50-11-9 do not apply to any unmanned aircraft system that weighs less than fifty-five pounds.

 

Proposed Senate Bill 80 says:

FOR AN ACT ENTITLED, An Act to regulate the use of drones under certain conditions and to provide a penalty therefor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That the code be amended by adding a NEW SECTION to read:

For purposes of this Act, the term, drone, means a powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. The vehicle may be expendable or recoverable.
Section 2. That the code be amended by adding a NEW SECTION to read:

Any operation of a drone in the state shall comply with all applicable federal aviation administration requirements. Any drone operating under the authority of the Armed Forces of the United States, including the National Guard, is exempt from this Act.

The restrictions of sections 4 to 5, inclusive, do not apply to a drone operator operating a drone for commercial purposes pursuant to and in compliance with federal aviation administration regulations, authorizations, and exemptions.

Section 3. That the code be amended by adding a NEW SECTION to read:

No person may operate a drone over the grounds of a prison, correctional facility, jail, juvenile detention facility, airport, or any military facility unless expressly authorized by the administrator thereof. A violation of this section is a Class 1 misdemeanor.
Section 4. That the code be amended by adding a NEW SECTION to read:

The landing of a drone on the lands or waters of another, without the owner’s consent, is unlawful, except in the case of a forced landing. However, the owner or lessee of the drone is liable for any damages resulting from a forced landing.
Section 5. That § 22-21-1 be amended to read:
22-21-1. Any person who, except as authorized by law:

(1)    Trespasses on property with intent to subject anyone to eavesdropping or other surveillance in a private place; or

(2)    Installs in any private place, without the consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying, or broadcasting sounds or events in such place, or uses any such unauthorized installation; or
(3)    Uses a drone to photograph, record, or otherwise observe another person in a private         place where the person has a reasonable expectation of privacy;

is guilty of a Class 1 misdemeanor. Subdivision Subdivisions (2) and (3) shall not apply to law enforcement officers, or to those acting under their the direction of a law enforcement officer, while engaged in the performance of their lawful duties. 
Section 6. That the code be amended by adding a NEW SECTION to read:

Any person who uses a drone to deliver contraband or controlled substances to a state prison or other correctional facility is guilty of a Class 6 felony in addition to the penalty for the

principal offense.
Section 7. That the code be amended by adding a NEW SECTION to read:

Except for authorized law enforcement or any military purposes, including the lawful manufacture, repair, or refurbishment as of a legitimate contract with authorized law enforcement or military, any person who sells, transports, manufactures, possesses, or operates any drone capable of firing a bullet or projectile or otherwise be used as a weapon or avenue to inflict harm or damage to any person or property is guilty of a Class 5 felony.

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South Carolina Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

Fortunately, at the time of the writing of this article, there are no state level drone laws in South Carolina. Keep in mind there might be local laws that still apply. This article is only on drone specific state laws.

There are three bills that have been proposed (SB 498, HB 4425, and HB 4421)  and 2 bills have failed (HB 3415 and HB 3514).

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Ohio Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

Fortunately, at the time of writing this article, there are no state level drone laws. There have been four bills have have been proposed and two that have failed. There could be drone laws at the local level which are beyond the scope of this article which is focused ONLY on state law.

The Ohio Department of Transportation has a UAS division.

The Ohio Legislature has created a Ohio aerospace and aviation technology committee.

122.98 Ohio aerospace and aviation technology committee.

(A) There is hereby created the Ohio aerospace and aviation technology committee, consisting of the following members:

(1) Three members of the senate, appointed by the president of the senate, not more than two of whom may be members of the same political party;

(2) Three members of the house of representatives, appointed by the speaker of the house of representatives, not more than two of whom may be members of the same political party;

(3) Fifteen members representing the aviation, aerospace, or technology industry, the military, or academia. One such member shall be appointed by the governor, and fourteen such members shall be appointed by majority vote of the six members representing the senate and house of representatives.

The legislative members of the committee shall be appointed not later than September 1, 2014, and the remaining members shall be appointed within ten days thereafter. The initial term of all members shall end on December 31, 2016. Thereafter, the term of all members shall end on the thirty-first day of December of the year following the year of appointment. Vacancies shall be filled in the manner of the original appointment.

The first legislator appointed to the committee by the speaker of the house of representatives after the effective date of H.B. 292 of the 130th general assembly shall serve as the first chairperson of the committee and shall serve until December 31, 2016. Every general assembly thereafter, the chairperson shall alternate between the first legislator appointed by the president of the senate and the first legislator appointed by the speaker of the house of representatives.

(B) The duties of the committee shall include, but are not limited to, all of the following:

(1) Studying and developing comprehensive strategies to promote the aviation, aerospace, and technology industry throughout the state, including through the commercialization of aviation, aerospace, and technology products and ideas;

(2) Encouraging communication and resource-sharing among individuals and organizations involved in the aviation, aerospace, and technology industry, including business, the military, and academia;

(3) Promoting research and development in the aviation, aerospace, and technology industry, including research and development of unmanned aerial vehicles;

(4) Providing assistance related to military base realignment and closure.

(C) The Ohio aerospace and aviation council shall serve as an advisory council to the committee.

(D) The committee shall compile an annual report of its activities, findings, and recommendations and shall furnish a copy of the report to the governor, president of the senate, and speaker of the house of representatives not later than July 1, 2015, and the first day of July of each year thereafter.

Added by 130th General Assembly File No. TBD, HB 292, §1, eff. 9/17/2014.

Prior History: (Repealed by 129th General AssemblyFile No.39, SB 171, §2, eff. 6/30/2011.)

(Effective Date: 10-24-2001 .)

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Wisconsin Drone Laws (2017)

NOTICE: This article is for information purposes only!  This article is ONLY for state laws that are DRONE specific. Local laws and “aircraft” related laws could potentially apply and were outside of the focus of this article. It might NOT be up to date. You should seek out a competent attorney licensed in the state you are interested in before operating.

Traveling? Click here to see other U.S. drone laws by state.

 Current as of February 21, 2017

Statute 29.083  Interference with hunting, fishing or trapping.

(1)  Definition. In this section, “activity associated with lawful hunting, fishing, or trapping” means travel, camping, scouting, target shooting, dog training, animal baiting or feeding, or other acts that are preparatory to lawful hunting, fishing, or trapping and that are done by a hunter, fisher, or trapper or by a member of a hunting, fishing, or trapping party.

(2) Prohibitions.

(a) No person may interfere or attempt to interfere with lawful hunting, fishing, or trapping with the intent to prevent the taking of a wild animal, or intentionally interfere with or intentionally attempt to interfere with an activity associated with lawful hunting, fishing, or trapping, by doing any of the following:

………..

8. Using a drone, as defined in s. 941.292 (1), to conduct any activity prohibited under subds. 1.to 7.

………

(4) Civil actions.

(a) A person who is adversely affected by, or who reasonably may be expected to be adversely affected by, conduct that is in violation of sub. (2) (a) may bring an action in circuit court for an injunction or damages or both.

(b) The circuit court may enter an injunction under ch. 813 against conduct in violation of sub. (2) (a) if the court determines any of the following:The defendant is threatening the conduct.

1. The defendant is threatening the conduct.

2. The defendant has engaged in the conduct in the past and that it is reasonable to expect that the defendant will engage in the conduct that will adversely affect the plaintiff in the future.

(c) The circuit court may award damages to the plaintiff if the defendant’s conduct in violation of sub. (2) (a) has adversely affected the plaintiff. The damages awarded may include punitive damages and any special damages. Special damages may include approval fees, travel costs, camping fees, costs for guides, and costs for equipment or supplies to the extent that the plaintiff did not receive the full value of any of these expenditures due to the unlawful conduct of the defendant.

History: 1989 a. 1901997 a. 248 s. 415; Stats. 1997 s. 29.083; 2015 a. 346.

The application of this section is limited to physical interference and does not violate the freedom of speech. State v. Bagley, 164 Wis. 2d 255474 N.W.2d 761 (Ct. App. 1991).

 

114.04 Flying and landing, limitations.

Subject to ss. 114.105 (3) and 175.55, and except as provided in ss. 114.045 and 942.10, flight of or in aircraft or spacecraft over the lands and waters of this state is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous or damaging to persons or property lawfully on the land or water beneath. The landing of an aircraft or spacecraft on the lands or waters of another, without the person’s consent, is unlawful, except in the case of a forced landing. For damages caused by a forced landing, however, the owner or lessee of the aircraft or spacecraft or the aeronaut or astronaut shall be liable, as provided in s. 114.05.

 

114.045 Limitation on the operation of drones.

(1) No person may operate a drone, as defined in s. 114.105 (1) (a), over a state correctional institution, as defined in s. 301.01 (4), including any grounds of the institution.

(2) Any person who violates sub. (1) may be required to forfeit not more than $5,000.

(3) A law enforcement officer investigating an alleged violation of sub. (1) shall seize and transfer to the department of corrections any photograph, motion picture other visual representation, or data that represents a visual image that was created or recorded by a drone during an alleged violation of sub. (1).

114.105  Local regulation. 

(1) In this section:

(a) Drone” means a powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. A drone may be expendable or recoverable.

(b)Political subdivision” means a city, village, town, or county.

(2) A political subdivision may adopt any ordinance in strict conformity with the provisions of this chapter and impose the same penalty for violation of any of its provisions except that an ordinance under this subsection may not provide for the suspension or revocation of pilot or aircraft licenses or certificates and may not provide for imprisonment except for failure to pay any fine which may be imposed.

(3)

(a) If a political subdivision determines that public safety requires that drone operation over an area under the jurisdiction of the political subdivision be limited, subject to par.

(b), the political subdivision may enact an ordinance designating the area as an area over which the operation of a drone is limited and imposing limitations on the operation of drones over the designated area. Subject to par. (b), an ordinance under this section may prohibit any operation of a drone over a designated area. (b) An ordinance under par. (a) may not apply to any of the following:

1. The operation of a drone by the state, an agency of the state, or a public safety agency, as defined in s. 256.35 (1) (g).

2. The operation of a drone with the permission of the owner of the property over which the drone is operated.

(c) If a political subdivision enacts an ordinance under par. (a), the political subdivision shall provide notice reasonably calculated to inform the public of the location of areas over which drone operation is limited. If the political subdivision produces a newsletter for its residents, the political subdivision shall provide notice of the areas affected by an ordinance under par. (a) in the newsletter. If the political subdivision maintains an Internet site, the political subdivision shall maintain a list of locations affected by an ordinance under par. (a) on the Internet site.

(d) A political subdivision may provide a forfeiture of not more than $2,500 for each violation of an ordinance under par. (a).

(4) No political subdivision may enact any ordinance governing aircraft or aeronautics or spacecraft or astronautics contrary to or inconsistent with the provisions of this chapter or federal law.

(5) Every court in which a violation of an ordinance under this section is prosecuted shall make a written report of any conviction, including bail or appearance money forfeiture, to the federal aviation administration.

175.55  Use of drones restricted.

(1) In this section:

(a) “Drone” means a powered, aerial vehicle that carries or is equipped with a device that, in analog, digital, or other form, gathers, records, or transmits a sound or image, that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. A drone may be expendable or recoverable.

(b) “Wisconsin law enforcement agency” has the meaning given in s. 165.77 (1) (c) and includes the department of justice and a tribal law enforcement agency.

(2) No Wisconsin law enforcement agency may use a drone to gather evidence or other information in a criminal investigation from or at a place or location where an individual has a reasonable expectation of privacy without first obtaining a search warrant under s. 968.12. This subsection does not apply to the use of a drone in a public place or to assist in an active search and rescue operation, to locate an escaped prisoner, to surveil a place or location for the purpose of executing an arrest warrant, or if a law enforcement officer has reasonable suspicion to believe that the use of a drone is necessary to prevent imminent danger to an individual or to prevent imminent destruction of evidence.

History: 2013 a. 213.

 

941.292  Possession of a weaponized drone.

(1) In this section, “drone” means a powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. A drone may be expendable or recoverable.

(2) Whoever operates any weaponized drone is guilty of a Class H felony. This subsection does not apply to a member of the U.S. armed forces or national guard acting in his or her official capacity.

History: 2013 a. 213.

942.10  Use of a drone. 

Whoever uses a drone, as defined in s. 175.55 (1) (a), 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 is guilty of Class A misdemeanor. This section does not apply to a law enforcement officer authorized to use a drone pursuant to s. 175.55 (2).

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