Before You Fly (Your Drone) – What Production Companies (and the Rest of Us) MUST Know About Drone Usage and Regulations
By Stephen Swalsky, PactUS Expert
Drones are here to stay and as more camera operators, professionals and hobbyists alike, catch on to their ease, affordability and ability to expand creative expression, they will only become more omnipresent putting to life inexpensively what had previously been outside of most production budgets. As fast as flyers can throw their drone into the air, the Federal Aviation Association is taking aim at them. The current legal and regulatory landscape concerning drones is a rapidly evolving (devolving?) morass with multiple contradictions and recent complicating factors such as the FAA missing their Congressionally-mandated Sept. 30, 2015, deadline for the full integration of civil drones into the National Airspace System. This leaves unresolved the issue of how and when the media might be able to use drones in newsgathering and production. Let’s not even get started on the administrative and enforcement mess that will come of the FAA announcement on October 19, just in time for Christmas shopping, that ALL drone operators are now required to register their aircraft with the Department of Transportation.
Bear in mind that there is NO overall uniform federal framework of laws to regulate use of drones, whether in the hands of hobbyists or commercial operators. The FAA can regulate on a national level. However, pretty much everything else falls under the control of state, county and city authorities. Here’s a real world example of this confusion: it is illegal to take off and/or land your “Unmanned Aircraft System” (the Federal Aviation Agency’s preferred term for “drone”) inside a US National Park, (penalties could include a $5000 fine and up to 6 months of jail time); however, since the National Park system does not control the airspace above the terrain, provided that there are no restrictions otherwise, you can do your filming of Yogi and Boo-Boo from the skies over the park but you’d better be sure to take-off and land outside the protected parkland.
What ALL Flyers Need To Know
Here are some threshold rules/guidelines which apply to professionals and amateurs doing noncommercial filming:
- Fly below 400 feet and remain clear of surrounding obstacles
- Operate in daylight and keep the drone within your sight at all times
- Remain well clear of and do not interfere with manned aircraft operations
- Don't fly within 5 miles (up from 3 miles prior to 2014) of an airport unless you contact the airport and control tower before flying and get permission. The reality is that this 5 mile zone will cover most, if not all, metropolitan areas and good luck getting an airport / control tower to grant you the ok.
- Don't fly near people or stadiums
- Don't fly an aircraft that weighs more than 55 pounds
- Don't be careless or reckless with your drone; you could be fined for endangering people or other aircraft and there seems to be the reactionary presumption that a drone is automatically at fault and/or creating danger
- Know the laws, sensibilities and regulations of your locale; many cities such as Washington, D.C. and New York City have made it clear that their airspace is restricted.
- To this list, we now must add “register your drone with the DOT”
These are all pretty much common sense guidelines (but do be aware that the FAA is looking to codify these if/when they finalize their enforceable regulations in 2016, but more realistically, 2017) and the last thing you want is your company name becoming a newsmaker as the one who interfered with emergency response aircraft trying to put out forest fires or, even worse, caused a serious injury as in the recent incident where singer Enrique Iglesias had a drone slice his hand while performing on stage. Nor do you want to be like the New York City teacher who crashed his UAS into an empty portion of the stands during a US Open tennis match resulting in his arrest and being charged with reckless endangerment as well as two violations of the city’s restrictions on aircraft flight.
What You The Professional Need To Know
When your production company or your Director of Photography makes the choice to engage a professional drone operator, make sure that they provide written proof to you (and to your insurer) that they have gone through all of the additional hurdles and have secured an exemption under Section 333 of the FAA’s “Special Rules for Certain Unmanned Aircraft Systems” (https://www.faa.gov/uas/legislative_programs/section_333/). At present, there have been about 2100 exemptions granted with more to come daily. While strong arguments can be made for and against FAA authority, the bottom line is that the FAA believes it has jurisdiction over drones and all indicators are that the courts are agreeing with this position. Unless you feel compelled to take a stand against the government and also have unlimited financial resources and time to spend being potentially dragged into a court battle, the smart play is to ensure that the operator you engage has the Section 333 exemption (https://www.faa.gov/uas/legislative_programs/section_333/how_to_file_a_petition/). And it’s not just the FAA who will be looking at you and your pilot to see if they have complied with the regulations: compliant commercial drone operators are turning in to the FAA those who did not secure their Section 333 exemptions. Demand that any professional flyer that you are considering provide you and your insurance company written proof that it has adequate and current coverage along with all current FAA certifications.
Make Sure Your Drone Operator Has These Before You Hire Them To Take To The Skies
Even with all of the rule changes that were suggested in February, 2015, extra steps for commercial users still remain in effect at this time. In a nutshell, your professional drone flier still will need:
- a Section 333 grant of exemption,
- a Certificate of Waiver or Authorization (COA), (granting broad general flight rights without seeking approval in each instance if you are not looking to fly above 200’ and stay 5 miles from airport control towers, etc.)
- an aircraft registered with the FAA (i.e. has an official tail number), and
- the drone needs to be operated by a pilot with a current FAA airman certificate; As of today, the FAA still wants the drone controlled by a pilot with appropriate certification. Indicators are that the future regulations will ease up on this and allow commercial drone usage so long as operators pass a written aviation exam every two years, etc.
IF you want to film inside of restricted zones around airports, restricted airspaces and densely populated areas, you will need your operator to secure an additional civil COA waiver after securing the section 333 waiver (https://www.faa.gov/news/updates/?newsId=82245). If you know your shoot schedule, to be sure you will have your specific COA in-hand, budget about 120 days prior to the planned shoot to submit your request. Of course, political quagmires and threatened governmental shutdowns could blow-up your well-planned schedule.
On The Horizon
Ignoring these rules and getting caught definitely involves financial and punitive risk as the Federal Aviation Administration recently proposed a fine of almost $2 million (to implement this fine will require a successful hearing in federal court), potentially the steepest civil penalty to date, against a drone company, SkyPan, to punish them for illegal aerial photography over the skies of NYC and Chicago. This has to be seen as a “shot across the bow” that the FAA will be cracking down on what it deems to be illegal and/or reckless fliers and will likely look to beef up its powers to deal with the rapidly rising number of drones. Interestingly enough, SkyPan received a non-retroactive section 333 exemption in April of 2015, long after the supposedly infringing flights took place. Skypan is fighting back and the gist of their bold legal arguments in response to the proposed FAA fine is that the FAA lacks authority to regulate drones below the navigable airspace outside of airport landing and take-off flight paths. Sorting out the legal definition of “navigable airspace” will be the threshold issue going forward. Stay tuned...