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Was That Legal? The Newton Case, the Viral Train Video, and What We’re All So Worried About

BY Zacc Dukowitz
27 September 2017

Last week was, to say the least, very interesting here in the drone world.

On the one hand, the Newton case was a decisive win for the drone industry. In brief, last week a court in Newton, MA struck down several drone ordinances for being in direct conflict with existing FAA regulations.

Image source

This is great news, because it sets a legal precedent: local ordinances that stand in contradiction to FAA rules will probably not survive in the long run.

On the other hand, last week we saw a video of an amazing but reckless FPV drone flight go viral, in which the pilot skims the top of a cargo train, weaves in and out of trusses in a bridge, goes under the train, and then ducks into an open cargo compartment before landing.

Flight of the Year // Trains, Bridges, Rapids, Mountains, Sunset, Gapping, Perching, Powerlooping

The video prompted chiding from many in the drone industry (including us), but also led to some questions from our community. Yes, the flight was reckless, and also bad for PR—if we were politicians, we might say that the optics here are terrible—but was it legal?

The short answer is, unsurprisingly, no: the flying we see in the viral train video is not legal.

Responding to a request for comment regarding the flying in the video, the FAA said:

…all pilots shall avoid flying directly over unprotected people, vessels, vehicles or structures and shall avoid endangerment of life and property of others.

– Les Dorr, FAA Representative

However, this response was made with the assumption that the pilot in the video was a hobbyist, and would therefore be subject to local community safety standards like those laid out in the Academy of Model Aeronautics (the original source for the quote above).

Either way, the recklessness exhibited in the video would seem to be in direct violation of FAA guidelines for drone pilots, which state: “Flying a drone in a reckless manner is a violation of Federal law and FAA regulations.”

And there is also the issue of where the pilot took off from and landed, since Union Pacific has a policy against unauthorized drone flights taking off from or landing on their land.

But the legality is, in some ways besides the point. The main reason many of us in the drone industry were shaking our heads about the video is that it makes us as a community look bad.

We’ve worked hard to legitimize drones, and that work has been uphill. A few weeks back FAA Administrator Michael Huerta said at InterDrone that Hurricane Harvey was a watershed moment for the drone industry, because drones were on the national stage for helping people, instead of for privacy or other negative concerns.

So right now, when we’re really starting to get some traction on the “drones for good” side, we’re all a little sensitive to moments like this, that could make public perception backslide into a morass of privacy and accountability concerns.

(But hey, the guy sure can fly.)

PR and Local Laws

The majority of local laws that have cropped up concerning drones, such as the ordinances just struck down in Netwon, have primarily addressed the negative ideas people have about drones and privacy.

These concerns have prompted cities and states to create blanket prohibitions against flying without explicit permission, either from the people whose property you might fly over or even near, or from the city.

As an example, here is one part of the Newton law that was deemed in conflict with existing FAA regulations:

Subsection (c)(1)(a) prohibits pilotless aircraft flight below an altitude of 400 feet over any private property without the express permission of the property owner.

Of course, since the FAA prohibits flying above 400 feet without a Part 107 waiver, this means you basically can’t fly at all in much of the city.

And there’s a reason the privacy theme has stuck around—it makes for a great story.

Dianne Feinstein, who proposed the Drone Federalism Act a little while back, has a juicy personal story about drones and privacy that she wheels out every time she talks about drones. According to Feinstein there was a protest outside her home, and when she opened the curtains to view the protest, a drone was flying right at her window, spying on her.

It’s a great story for her cause because it plays to the privacy fears so many people have about drones. But it also seems highly unlikely that the drone she saw was actually spying on her. What seems much more likely is that the drone was facing the other direction, filming the protest, and her preconceived ideas about drones and privacy made her slam her curtains shut, assuming someone was trying to film her.

So even though the behavior in the viral train video has nothing to do with privacy, the recklessness makes us wince. People are just starting to notice that drones are great, useful, and needed, and that most drone pilots are conscientious and do things by the book—we don’t need to give them reasons to think otherwise.

Why Local Laws Concern Us, and Why Newton Is Just the Beginning

Local laws are a reaction to concerns that the FAA’s Part 107 rules just don’t do enough for the private citizen when it comes to protecting him or her from drones.

On the local law side, the thinking goes: The FAA does not go nearly deep enough to protect the privacy of U.S. citizens, so let’s take things into our own hands.

This is, in fact, exactly what Feinstein’s proposed legislation would do—remove federal jurisdiction for the national airspace, and place it in the hands of states to do with as they choose.

In actuality, this would be a mess. Imagine a patchwork of regulations and local regulatory boards for drones—when you fly in one city, you pay x, when you fly in another, you pay y, and you have to be aware of the laws in each city, or county, or state, or face the consequences.

That is a world where the nascent drone industry will never get off the ground. It’s also a world where those who want to follow the law basically cannot do so, because the cost and complications are so great you’d need a legal advisor—or a team of them—for even the simplest mission.

The problem is that we are actually already living in that world, to some extent.

Back in April a study conducted by Bard College’s Center for the Study of the Drone found that flying a drone in full compliance with FAA regulations could still get you fined or even arrested for breaking local laws.

And we’ve seen this in action. Orlando passed a law at the start of 2017 that required, in part, for drone pilots to pay for a permit to fly in city limits (or, more specifically, to take off and land within city limits). That permitting fee seems similar to a part of Newton’s law that was struck down, which required drone pilots to register their drones.

North Carolina is another example—according to Dronethusiast “there are almost no areas where it’s either legal or accepted to fly a drone in [North Carolina], other than Crystal Coast.”

The list goes on and on. Does it matter that many—maybe most—of these laws are in conflict with FAA regulations and authority?

Of course it does. But until these laws are questioned in court and a decision is made, they are the law of the land. According to the Bard study, these local laws cover 133 localities in 31 states, in an area containing 30 million people. For those people, these laws are very real.

So yes, we worry about public perception, and making sure that more drone laws like these aren’t promulgated throughout the U.S. Although we might legally be in the right to look to the FAA for guidelines, and not local authorities—and it’s fantastic that the Newton case has affirmed this—we still have a long way to go before drones are generally accepted, and generally viewed as a useful tool instead of a nuisance.

And buzzing under trains just isn’t going to get us there.

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