Drones and Your Business

So your company wants to internally start using drones for marketing photos, tracking a construction project, capturing visual information on products, etc. There are dozens of reasons that companies all over are looking to use drones these days. But, are your prepared? That doesn’t  just mean do you have a drone and someone who knows how to turn it on. We mean are you ready from a legal and liability standpoint? We are going to walk you through some of the unique issues with using drones as a corporations. 

First off, there are regulations. The commercial drone rules apply to anyone flying to further a business - even if you had a buddy with a drone who you wanted to snap some photos of your business, this legally falls under a commercial operation (pay or not). So unfortunately, while using a drone seems as simple as going to the store and handing them your credit card, the legal side of it is much more involved than that. There are tons of federal regulations associated with legally flying a drone. In August 2016 the FAA passed CFR 14 Part 107 which REQUIRES anyone flying a drone for a business purpose to have FAA remote pilot certification. This process requires taking a test at a testing center to become a certified remote pilot, but then there are all of the regulations listed under Part 107 that have to be followed. Here are a few basics:

• Drones can only be flown during daylight

• Flight over people and moving traffic is prohibited

• The drone must be flown within line of sight of the pilot at all times

• Flights must stay under 400’ above ground level

• Any flights in controlled airspace (towered airports like Mitchell, Timmerman, and Waukesha for the Milwaukee area) require authorization from the FAA

The list above is just a piece of what is required to legally operate a drone commercially these days, and the regulations are still changing almost on a yearly basis as legislators try to keep up with the changing technology and demands. So why do you need to follow these laws? We will admit that currently the FAA isn’t staffed to keep tabs on who is or isn’t flying drones legally, however there is a huge litigation and liability factor that brings us to another issue of insurance.

Companies always carry general liability insurance, but GL policies never cover aviation related activities - and drones specifically fall under aviation related activities. If your company has used drones internally and has not sourced out specific drone insurance then you are not covered! The other issue here is the requirement by most insurance policies that the FAA regulations have to be followed in order for you to be covered. If have a claim for a drone crashing into a building and you were found by your insurance company to be in violation of the regulations, then they will not cover your claim. But in most people’s minds it’s just a little drone, so how much damage can it really do? Well, the largest number of claims related to drones are due to battery fires. The LiPo batteries used in drones are actually extremely volatile and a simple battery puncture can result in a very dangerous chemical fire as the battery basically turns into a torch shooting flames (Google it, we aren’t kidding). That could turn a “small crash” into a very dangerous building fire. While this certainly an outlying scenario, drones do fail or have pilot error all of the time, and things like this have happened. Simply searching for drone crashes on Youtube returns countless examples of equipment failures and operator errors that could lead to very dangerous situations. Even when it comes to hiring an outside source for drones, you want to make sure you are hiring someone who is following regulations and is insured because you don’t want to be held liable as the one who hired them if there is some sort of incident. Ask for an FAA certification card and a certificate of insurance.

Another issue is having personnel to fly and operate a drone. We are frequently asked if it is easy to fly a drone, and it certainly is easy to get a drone into the air these days. What is not easy is dealing with unknown situations that arise. GPS failure, compass errors, IMU errors, camera problems, battery voltage issues, etc are all issue that pop up with drones and the more experienced an operator is, the more easily they can navigate these issues without crashing. Then there is all of the knowledge that photographers and videographers learn over time with lots of hours of experience that get the best images and don’t rely on “auto” modes on the drone. While there are certainly many talented drone operators out there, simply grabbing an intern to go fly a drone may not get you the high quality shots you were after.

There are also now criminal penalties involved with flying drones. As of October 2018 it is illegal according to federal law to fly a drone in controlled airspace without authorization whether you are a hobbyist or commercial operator. While today you can still get away with flying “under the radar” of everything we mentioned above, Congress and the FAA are working on how to actually track every drone in the air. This will lead to more FAA inspectors showing up where people are flying, and possibly even them being aware of who is flying legally or illegally based on the user and location data that they will gather. The “wild west” days of drones are coming to an end as more companies like Amazon work with legislators toward using drones for things like automated deliveries. More and more drones will be in the air in the future and the safety of the airspace will end up being managed by unmanned traffic management (UTM) systems, so its best to follow the laws now and stay on top of changes so you don’t get caught by surprise.

Last, when you look at your use case for drones, does it make sense to deal with changing regulations, certification, insurance,  and finding someone who can fly the drone? Do you have the resources to manage, edit, and store all of the gathered imagery? When you really analyze your needs does it make sense to operate drones in-house or hire a source that will handle everything and give you a simple link with everything you need? Remember - all of the legal and liability issues apply to every company in America whether you are simply a home inspector looking at roofs, or a multi-million dollar marketing company.

So, once again, are you prepared? If you have a need for drone services, consultation on setting up drones internally, or just have questions about anything please reach out! At MKE Drones we are not just a drone service provider, we are an advocates for drones in Wisconsin and Milwaukee, plus we just love to talk about them with anyone who is curious.

Casey Neistat: A Symptom of a Drone Problem

Casey Neistat! Do I have your attention yet? Recently an article (linked here) came out with a summary of info from a FOIA request into the investigation of Casey’s drone flying in New York. To put it lightly, it really stirred up the drone community. Nothing gets certified remote pilots fired up like watching one of his videos where he flies his drones, but I think everyone should take a step back and look at this from a little different perspective. Let me say outright - I do NOT condone illegal drone flying in any manner, but I do think people need to be directing anger at the right place. 

There are 2 arguments made about Casey’s drone flights that people want the FAA to address: he’s making money, and flying in controlled airspace without permission. I will start by discussing these, but then I want to move into what I feel is the true issue at hand.

The first issue surrounding Casey that people bring up is that he is flying commercially since he makes money off his YouTube videos. Personally I don’t think that argument is as cut and dry as people want to make it. Anyone who has watched Casey in interviews and videos outside of his own channel will understand that Casey really “vlogs” for personal enjoyment. I don’t know how his financial/tax situation is setup with his monetization on his channel, but the FAA clearly states that a hobbyist is someone flying for fun, and a commercial operator is flying to further a business. When you think about it, if Casey is vlogging for enjoyment and fun, then how is he operating commercially? Consider that what he is doing is no different than flying a drone to capture some awesome photos of a city, posting them on social media, and having a TV station or newspaper contact you to offer you money for them. Casey makes his videos (with some drone footage in them) for his own fun and enjoyment and posts it to social media. He is not a business or brand, and while you can clearly tell that all of his videos are making money for him, that’s doesn’t make it his intent. Your response is - well he clearly knows what he doing and that he’s going to profit. Intent can very hard to prove. Please don’t consider this a defense of Casey, but rather a realistic look at this argument that is made by so many people. (Edit on 7/2/17: The way this relates to the rest of the article might not be clear. There is potentially some grey are here due to the antiquated and out of date policies of the FAA. Due to the modern age of the internet, a lot of things that are seemingly cut and dry to someone due to their personal views might not be as cut and dry in a legal situation. The argument above is simply and example and view of how this could be grey. My personal opinion is that Casey should be flying under Part 107, but this is meant to give a perspective). 

When you consider the above, Casey is really only flying as a hobbyist under Part 101 and only needs to notify any airports within 5 miles of him. I have no idea whether he does or has done that, but as a hobbyist thats your main requirement. That being said, the FAA did start an investigation into Casey about his flight in controlled airspace, and basically concluded that there was a lack of evidence. The way the FAA policies currently stand you need more evidence that just a social media or website post to go after someone. A lot of people want to compare this to the SkyPan case and ask why the FAA didn’t go harder at Casey, but how could they? There are no customers, contracts, records, etc. to subpouna and lean upon as evidence. There might be footage in Casey’s archive that would show him at the controls - but there might not be.  Since the FAA apparently isn’t real big on electronic evidence, their view is that there just isn’t that hard factual item that shows that Casey was at the controls of a drone that was flying illegally in controlled airspace. 

My point with the above is not to get into a huge argument over Casey Neistat or even to defend him and his actions. Instead, I just want offer a thought process that leads us to what truly seems to be the issue and heart of the matter not just with Casey, but with drones in general - The Federal Aviation Administration. The dinosaur of an institution that is having a hard time evolving with current technology. After focusing really hard on manned aviation for decades, then just can’t seem to keep up or get ahead on drones. 

From the time drones started to really come into public light, the FAA has struggled on how to even fit them into their existing frame work of regulations. Then add to that the US governments slow and arduous rule making system that has made slow progress of getting any significant regulations put into effect. Even once we had Part 107 the FAA had an “O crap” moment when they realize they had no effective way to grant all the authorizations there were about to be inundated with. But at least 10 months in we finally have a better authorization sys — wait. No we still have a slow and broken system, and the replacement (LAANC) will likely not be working fully until Summer 2018. 

There is also the FAA’s completely underwhelming educational effort on safety and rules with drones. They have held the occasional campaign to keep people from flying near the Super Bowl, but as a whole there has been very little effort to truly educate the public on the rules surrounding drones, the places they can and cannot be flown, and what to do if someone is truly doing something reckless with a drone. As a result, people view drones the same as buying any other camera or toy. Just buy it at the local big box, throw it into the air and start snapping away - not big deal! But sadly it is a big deal. While privacy issues are totally overblown, issues surrounding safety of other aircraft in the air, and people on the ground below are not overblown. Just as manned aviation has had a culture of safety and making good choices, the same is necessary for drones. This will never happen if there is no true method in place to educate the public. Some people will still do whatever they want, but then you eliminate the issue of people buying a drone and being completely ignorant about what they should and should not do. 

The last issue surrounding the FAA is enforcement. Currently in the US, there have not been any proven, serious collisions with a drone and a manned aircraft, and no one has been killed by a drone. Based on that the FAA continues to place the vast majority of its focus and resources on manned aviation where crashes still occur and do kill people. But what good are rules and regulations if they are not enforced? And what good is it if you have antiquated policies that really won’t let you go after someone using only electronic evidence? Your probably NEVER going to get any other significant type of evidence about a drone flight that electronic. A drone pilot can takeoff, fly, land, and be gone in 30 min, so how often are you going to in person stumble on someone mid-flight for proof?

There are now twice as many registered drones as there are registered manned aircraft, and I’m sure the number of unregistered drones is significantly higher. At what point is the FAA going to stop being reactionary to drones in the airspace? Its time for them to develop a way to properly education the public about drones - and not in a way that makes people fearful. Its time for them to get new policies in place and figure out a method to actually enforce the regulations they created. And last, its time to speed up their internal process of creating new rules (like flight over people and beyond line of sight). 

Its time for the FAA to finally evolve into the 21st century. 

Post written by Jon Elliott, Owner MKE Drones, LLC

A law to kill drones

The government is at it again. On May 26, 2017 a draft of a bill for the US Senate was passed around drone groups. The bill, called the “Drone Federalism Act of 2017”, was authored by Senator Feinstein of California. Before we get into the problems with this for drone operators (both hobbyist and commercial), here is a quick summary: 

1. State and local municipalities have control of airspace up to 200' above ground level and drone flights closer than 200' to any structure
2. No flight could take place within 200' above ground level of private property or within 200’ of private structures without the owner's permission
3. FAA is ordered to provided help to 10 local/state governments to regulate drone use, and inclusion for them in the unmanned air traffic systems testing programs.
4. No effect on the FAA and manned aviation
5. There is no noted exemption in this bill for commercial operators.

If you just read these at face value or as someone with minimal interest in drones, you would just shrug your shoulders and move on. However, I would urge you to keep reading as some insight into the mind of a drone business owner and operator will probably dazzle and amaze you. Ok...it won’t do that, but it will hopefully explain why this bill is bad for the drone industry and would cripple a lot of commercial operations.  You probably notice cool aerial shots in movies and shows without thinking about how they get those shots, but many of those are done with drones and will be missing if this law is passed.

Obviously, the biggest issue here is state/county/municipal being allowed to have regulation over the airspace. Imagine if every city and township in your area had varying laws for driving your car. You would have to remember the different laws for each and make sure you didn’t confuse them. The same applies to drones. There are many times, whether in a city or a rural area, that flights can cross over from one town into another. Now what if these towns had differing laws? Are we supposed to adapt mid-flight to accommodate that? 

Then, think about the vastly different laws that each city could propose. No flights from public property, permits, fees, notifications, etc. - the list could go on forever. If I’m running flights in 4 different cities in a day I am supposed to keep all that straight?? A plumber or electrician might have some code differences between various cities, but at least the majority of what they do is all the same thing and doesn’t really change. This section of the proposed law alone has the potential to crush the drone industry. The US is already years behind countries in the EU when it comes to drones - why do we need to make it even worse? The FAA needs to be left in control of the all of the airspace so there is just 1 set of laws and we all follow them. Cities can currently regulate land use, where drones can/cannot takeoff and operate from, which is confusing enough. There are already tons of poorly written drone laws in lots of local cities. The last things we need is to have more cities attempting to regulating the airspace when they can barely handle regulating the land.

Here is a real world application of how this would affect commercial drones. MKE Drones often has operations that take place in areas that are controlled airspace, and we are granted permission by the FAA to fly at a maximum of 150-200’ above the ground for many of these. This law would mean that all of our operations would be taking place in the airspace that a city is regulating. There is no way to go up to 201’ and keep out of their control for the majority of the flight. And even if we in an area where we were able to go to that 201’+ it would still require takeoff/landing going through that city regulated airspace. So again you'd potentially be flying by 2 sets of rules just to get in the air! How does that even work?

Added to that, an operator would need permission for EVERY property they fly over at 200’ or less. Lets use an example from one of our operations on this one. MKE Drones flies a particular construction site every 2 weeks, and it happens to be in a residential area. These flights also take place in Class D airspace where we are restricted to no higher than 200’ above ground level. We gather still images and an orbit of the site for the owner and general contractor to track the progress of the site over time. Take a look at the photo below that shows our flight path we fly in order to get a simple orbit of the site. I can count 15 properties we fly over at 180’ to get the orbit we need. To be very clear - under this proposed law that means we need 15 permissions! So what happens if someone isn’t home, or if someone says no? Are we supposed to just skip that part? To date only 1 property owner has even been aware of this operation happening every few weeks, and was happy after just a simple discussion. We are performing a legal operation and service that disturbs no one, and doesn’t invade anyone's privacy. If the proposed law were passed, we would likely not be able to perform some or any of our services at this site. But, since the draft excludes all manned flight operations, a plane could still fly at 500’ and use a zoom lens to photograph the construction site or any of these peoples homes, yards, or property with no legal issues whatsoever. But a drone - it MUST be spying. No, sorry. We are here to get the footage we need and move onto the next job, not to see what the neighbors are up today. 

One of the other major issues with this bill - how could any of this even be enforced? People who are ignorant and people who are trying to do something illegal with their drone are still going to do things like fly into stadiums during an MLB game regardless of the laws. Essentially, all this does is burden down people who want to fly legally, and hurt the drone industry by adding additional burdens and costs to businesses and hobbyists that want to use drones. If the police come up to you to question if you are “following the city airspace laws” are you supposed to provide a full spreadsheet showing all your GPS coordinates, heights, and operations to prove to them you didn’t break their law? All of this is completely impossible to practically enforce. 

When you take into account that fact that this bill directly states that there will be no effect on manned aviation, you start to wonder about what the authors were after (most notably Senator Feinstein from California). Over the last year her state's municipalities have been notorious among drone operators for passing laws that show they are struggling to understand that a city doesn't control the airspace - the FAA does. They can regulate the land, but instead of doing that they try to regulate what can or can’t be done in the air, which is outside of their control due to Federal Preemption. It genuinely seems like this bill was crafted to offer more power to state and local governments without one single discussion with drone enthusiasts and commercial operators to see what the effects could be on their enjoyment and their businesses. 

Then, consider that most illegal or nuisance drone operations can be handled by the local police under current laws using disturbing the peace or disorderly conduct citations, and it makes this law seem unnecessary. It actually feels more like something to make politicians feel like they are actually doing something.

Everyone who flies drones, has an interest in drones, or even enjoys watching aerial footage in movies, TV shows, or social media should contact their Senators and tell them we want this bill killed before it even gets to committee.

Post written by Jon Elliott, Owner MKE Drones, LLC

IT'S A Drone!!!!

Over 2 years ago on October 14th, 2014 a drone sighting was reported over Camp Randall Stadium during a University of Wisconsin football game against Illinois. Almost no one noticed the drone except for a photographer from the State Journal who used his telephoto lens to snap a photo of the drone. 

The incident sparked off a Federal investigation with the FAA looking for the pilot and drone that were responsible for the flight. In 2004 as a result of the incidents of 9/11 the FAA started placing much stricter regulations on flights around sporting events. This resulted in a 3 mile radius around most stadiums that is off limits to any aircraft below 4,000 feet from 1 hour before an event starts to 1 hour after it concludes. Based on this regulation, the drone flight at the Badger game was illegal by Federal law. While multiple people were interviewed in relation to the case, a suspect was not caught and the case essentially has been cold since then. 

All of these events really identify a large issue that is affecting drones even today in 2017 - a lack of education. Every day thousands of drones are flown around the country for recreational and business purposes, and it seems almost daily a drone makes it into the news for breaking the law by flying too close to an airport, supposedly being spotted by a pilot flying at 10,000 feet, or for an interesting video that is picked up by a news source. But often these news stories are either not true, poorly reported, or are showing a video that was taken by a drone operator who was breaking the law in capturing the video. 

Despite some less than grand attempts by the FAA to educate the public drones still remain an area that the most people do not understand both in their functions and in the laws surrounding them. So let’s dig into some of the basics surrounding drones - or UAS as they are technically known.

So, let’s talk about laws. The FAA solely controls the airspace in the US and has control over the operation of drones while they are in the air. States and local governments are able to pass laws regarding where a drone can takeoff, land, and be operated from - though more and more cities are illegally attempting to regulate where drones can fly in the air, which according to the FAA is wrong. 

Maybe you saw a drone at your local big box retailer and decided to buy one to have a little fun - what do you need to know to be “legal”? The actual rules are pretty basic for hobbyists. Register your drone (https://registermyuas.faa.gov/), notify airports and helipads with a phone call if you are flying within 5 miles, check for TFRs (Temporary Flight Restrictions), and follow the flying code of a nationwide CBO (community-based organization) like the Academy of Model Aeronautics. For more on the AMA safety code visit this link: https://www.modelaircraft.org/files/105.pdf

But what if your neighbor sees you flying and says he’ll pay you to take photos of his business? Now you have stepped into the realm of commercial drones. The FAA defines a commercial flight as one that furthers a business or is done for compensation. So, if your flight has the intent of being used for your business (even just for marketing) or for you to be compensated in some way, it qualifies as commercial. As of August 2016, all commercial drone flights fall under Part 107 of the Code of Federal Regulations. This is a very stringent set of rules from the FAA that requires passing a test, having a fair amount of aeronautical knowledge, and applying for authorizations to fly near airports. For more on commercial drones flights click the link here: https://www.faa.gov/uas/getting_started/fly_for_work_business/

But what if you are just a member of the public and you see a drone flying near you - what is going on??? Well unless you happened have a stalker you’ve been hiding from lately, the drone is NOT spying on you. The cameras on your average consumer drones take great images, but unless they are close enough to you that you can feel that breeze of the blades, they can’t get enough detail to make out a clear image of you. In fact, someone on the ground with a telephoto lens - like the one used by the photographer at the Badger game mentioned earlier - is able to take a much better photo of you than a drone can. Even the commercial drones that do have zoom have to overcome motor vibration and movement which makes it difficult to get a clear image while zoomed in. So, if you see a drone flying around, watch and enjoy this great new technology. Once the operator lands the drone chat with them and learn more about why they enjoy flying drones. 

About the Author: Jon Elliott is the owner of MKE Drones, LLC in Milwaukee. He has hundreds of hours of experience flying drones to get aerial photos and video for construction sites, documentaries, and marketing. He also is an advocate for local and state regulations that promote drones, and proper representation of drones by the media.

For more info visit www.mkedrones.com

Illegal Local Drone Laws

Many cities across the US are trying to put into place laws regarding flying drones or UAS (unmanned aerial systems). Some of these include requiring a "license" to fly inside city limits, no-fly zones in parks, or limiting drones to only being able to fly in certain areas. But what do the laws say about this?

Legally, the FAA is the only agency that can control the airspace - which technically is all the open air inside the bounds of the US. There is no limit on height. If you are outdoors, once your one inch off the ground and controlling and aircraft, you are in airspace that is FAA controlled. So how does this apply to cities that are setting laws into place? A city can only control where someone takes off and lands from - they cannot control the the airspace once an operator is flying. So let say a city has a law saying no drones are allowed in the city limits. If I as a drone operator take off and land from outside the city boundaries - and I am not breaking any FAA laws - then I am flying 100% legally. The best example of this is the US National Parks. It is illegal to takeoff and land inside of National Parks without a permit (which has never been granted to anyone to date), but if you take off and land from outside the park you can fly over and through the park and you are well within legal bounds. A great case of a mis-placed law can be seen in this article where a law that ended up being removed from the books in Palm Beach, FL. 

Many people claim that the FAA does not control airspace below 500' based on the legal case United States v. Causby from 1946. There are a few problems with the idea of the FAA not controlling all national airspace regardless of height. First, that legal decision is now 70 years old and technology and airspace have changed significantly since then. How can a decision from that long ago accurately reflect where we are at with airspace today? Second, the FAA very clearly has stated that it controls all airspace and has the only authority to do so in the link here which was also mentioned earlier. Last, congress has very clearly tasked the FAA with setting up regulations for drones and integrating them into the national airspace. But drones can only legally fly below 400' - so clearly if the FAA is being directed to regulate drones in the airspace of 0-400' then that airspace is under FAA direction and control. 

One of the most significant concerns people have with drone flights is privacy, but the majority of drones are very noisy when close enough to the ground to get any kind of detailed photos or footage. This is slowly changing with the implementation of zooming cameras, but most states have a some type of privacy law in place in regards to photography. As well, if you are banning drones for privacy concerns, are you also going to ban regular telephoto lenses? A lot of times a ground camera can get a more privacy-violating photo than a drone can. 

Aside from the legal aspect, cities need to be careful about trying to over-regulate drone use. There are really 3 types of drone operators in the world: people who fly 100% legally, people who don't care about any laws, and people who are uninformed. By creating laws restricting drone use all you have done is stifle and barrier those who are trying to fly legally. Operators who don't care about laws will fly regardless, and uninformed operators will continue to fly since they are not aware of a law - but will be moved into the legal/illegal operator mentality once they are informed. You are only hindering people trying to fly legally. 

If you are a city considering a drone law, please consider the above information before making a rash decision. Don't stifle innovation. The FAA also has provided an advisory for municipalities at this link that gives guidance on how what regulations are allowable without consultation from the FAA.

Post written by Jon Elliott, Owner MKE Drones, LLC

www.mkedrones.com