The legal use of drones

By John Schulze, ABC Director of Legal & Government Affairs

Drones are not toys.

While the promise of flying cars is still a distant reality, technology has made drones, technically known as Unmanned Aircraft Systems (UAS), less expensive and more powerful. As a result, the use of a UAS as both a pastime and a key component of some businesses is becoming more prevalent. However, while the sky is the limit for their usefulness and source of enjoyment, UAS are not toys. The federal government, Wisconsin, and local units of government license and regulate UAS use, and violations can be subject to state and federal civil and criminal penalties. 

Background 

In Wisconsin, a UAS is any unmanned aircraft operated not equipped to carry a human operator. A camera or recording device is not required. 

The federal government’s Federal Aviation Administration (FAA) regulates UAS through its authority over the national airspace. All UAS users are required to pay $5 for a three-year registration, and must also provide their email and physical address, UAS make/model, and credit/debit card. Like a drivers’ license, UAS users must carry their FAA regulation certificate and proof of ownership either physically or digitally when they fly their UAS, and must show the certificate to any federal, local, or state law enforcement officer when requested to do so. The UAS must always have an identification number displayed. Also like a drivers’ license, the registration is connected to the individual, not the UAS, so multiple persons operating the same UAS would each need to register with the FAA and pay the $5 fee. A UAS weighing more the 55 pounds, including payload like a camera, has additional registration requirements. 

Separate rules exist for UAS recreational use, educational use, government use and commercial use. This article will focus on commercial use, defined as any UAS flight that promotes a business in any way. 

Certification 

All commercial drone flights must be conducted by someone who obtained a Remote Pilot Certificate from the FAA. The certification includes passing knowledge exams of airspace classifications, drone loading and performance, radio communications, airport operations, emergency procedures, and more. While federal law trumps state law when it comes to drones, Wisconsin and local units of government have passed additional rules and regulations. 

The Federal Government, Wisconsin and local unites of government license and regulate UAS use and violations can be subject to state and federal civil and criminal penalties.

SUMMARY OF FEDERAL AND WISCONSIN UAS RULES AND REGULATIONS FOR COMMERCIAL USE

Prohibited locations

Local units of government have UAS restrictions related to prohibiting where one can be operated but cannot suspend or revoke a certification/license. For example, some Wisconsin communities prohibit drone use over parades, festivals and other public gatherings. In addition to FAA temporary flight restrictions (Presidential movements, emergency situations) an UAS cannot be flown:

• Above 400 feet.

• Within five miles of any military facility, airport or landing strip without permission.

• Within three miles of stadiums one hour before and one hour after the schedules time of any Major League Baseball game, National Football League game, NCAA Division One Football game, NASCAR Sprint Cup race, Indy Car race or Champ Series race.

• Over a correctional facility, including prison or jail.

• In Wisconsin state parks, recreational areas, natural areas, Kettle Moraine, Point Beach state forests, and the lower Wisconsin state riverway. The one exception is the Richard Bong Special Use Zone.

Prohibitions on UAS use

• Can only be flown during daylight hours, defined as a half hour before sunrise to a half hour after sunset.

• Must yield to all manned aircraft.

• Cannot be flown near wild animals, or impede, obstruct, or harass a person engaged in hunting, fishing, or trapping, and/or disturbing a lawfully placed hunting blind or stand. Travel, camping, scouting, target shootings, dog training, animal baiting or feeding, and other related acts are included.

• Cannot be operated recklessly, including operating a drone while under the influence of drugs, an intoxicant, or with a prohibited BAC of .04.

• Cannot be weaponized.

Drone use over private property

In most cases, an ABC member would be using a UAS on behalf of a customer or owner on their property, so this would not be an issue. In other cases, the best course of action is to receive a property owners’ permission before operating a UAS over their property. However, flying UAS over private land or water is lawful in Wisconsin unless it is at such a low altitude as to interfere with the property’s existing use, or would be considered dangerous or damaging to the persons or the property. Even then, any regular reckless, negligent, inappropriate or harassment by a UAS could be unlawful under existing Wisconsin law, and a pilot would also be liable for any damage the UAS caused to people or property. Also, using a UAS to photograph, record, or observe an individual or place where there is a reasonable expectation of privacy is prohibited without written consent. The landing of a UAS on someone’s property without their permission would likely be considered trespassing unless in case of a forced landing.

Advice

• Practice, practice, practice. Flying a UAS can be fun, but it is not a toy. Learn to operate your UAS safely.

• Get permission from the property owner when operating a UAS. Also, inform all workers on a job site that it is authorized. Especially on a large job site, a worker may be concerned about prohibited surveillance and notify law enforcement or take it upon themselves to ground the UAS.

• Keep your UAS within your visual line of sight.

• Check the local municipality to see if there are any local restrictions, and FAA’s list of airspace restrictions before flying your UAS.

• Check with your insurance carrier to see if you have or need UAS insurance.

Going forward

Currently there are 900,000 UAS registered with the FAA, and likely many more unregistered being operated. As the UAS market matures, their use will become more and more common, as will related complaints and problems. In addition, businesses are finding more and more uses for UAS. In construction alone, UAS are used for surveying and topical mapping, monitoring job sites, equipment tracking, and showing clients project progress. Some contractors are even incorporating UAS into their safety programs for fall prevention. Over the last decade, UAS have injured bystanders, halted airline traffic at numerous airports, been used to spy into windows and have crashed into the Golden Gate bridge at least five times.

As with every developing technology, the UAS law is evolving. The UAS hobbyists are a surprisingly powerful lobbying organization and have fought for changes in Wisconsin law to allow drones to cross private property. It is expected that more prohibitions on UASs use and greater penalties for their misuse will happen.

Already in Wisconsin, there is a penalty enhancer for committing a crime with an UAS in addition to the underlying penalty. Legislation has either passed or being considered in other states to protect critical infrastructure like wastewater treatment facilities and electric utilities.

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