How FAA Will Regulate Personal Drone Use is Up in the Air

They're endangering aircraft and firefighters, but FAA isn't stepping up. Who does that leave?

Drones conjure up a Jekyll-and-Hyde duality. On the one hand, there are the silent killer Predators, lobbing bombs overseas and vanishing into the sky. On the other hand, drones on the homefront seem like harmless toys used by hobbyists to capture cool video footage from high above.

It turns out gentler drones get destructive in their own ways. With prices dropping, the technology has proliferated—there are now swarms of them available for under $300. The most alarming effect of this rising availability became clear in a recent announcement by the Federal Aviation Administration: Aircraft pilots have reported a record 650 drone sightings in 2015 so far, up from 238 sightings for all of 2014. Seeing a drone is just a step away from hitting one, and drones have interfered with aerial firefighting efforts in California while injuring bystanders elsewhere by crashing into them.

The scary thing is, the FAA has almost no power to regulate hobby drones. Faced with a high-tech Wild West, it's up to state and local governments to keep the buzzing contraptions in check before they get out of control. Reporter Craig Whitlock captured the scope of the problem in a recent article for The Washington Post:

In recent days, drones have smuggled drugs into an Ohio prison, smashed against a Cincinnati skyscraper, impeded efforts to fight wildfires in California, and nearly collided with three airliners over New York City.

Earlier this summer, a runaway two-pound drone struck a woman at a gay pride parade in Seattle, knocking her unconscious. In Albuquerque, a drone buzzed into a crowd at an outdoor festival, injuring a bystander. In Tampa, a drone reportedly stalked a woman outside a downtown bar before crashing into her car.

State regulations emerge

It's far too early to call the situation a crisis. These are isolated incidents with limited damage, at least so far. The problem is that there are very few legal safeguards to prevent amateur drone pilots from colliding with air traffic, among other things. The FAA is banned from regulating drone hobbyists thanks to a 2012 law "designed in part to protect model-airplane enthusiasts," Whitlock reports.

The National Park Service has banned drones in low airspace over its territory, citing their effect of disturbing visitors and wildlife. Military bases are off limits, too (The Smithsonian came up with a handy map that charts out all the forbidden spaces). The FAA lists a series of instructions for drone hobbyists when flying anywhere else: Don't go within 5 miles of airports, stay in visual contact with your drone, keep clear of people and stadiums, and so on. But the very wording of these rules undercuts their authority; hobbyists are "strongly encouraged to follow safety guidelines."

Instead, anyone seeking a buffer against unwanted aerial surveillance or air traffic interference must look to more-local regulations. In California, drones have drawn the attention of state legislators across party lines. Republican state Sen. Ted Gaines and Democratic Assemblyman Mike Gatto have been working on a bill to keep drones from flying close above public schools, and thus potentially spying on schoolchildren. Another California bill would make it a misdemeanor to fly a drone over a state prison or jail, to prevent the delivery of contraband.

Gaines tells CityLab that he was troubled most recently by reports of drones hovering around firefighting operations. As a grass fire spread up to Interstate 15 in San Bernadino County this summer, a handful of drones in the airspace forced firefighting aircraft to leave the scene or risk getting hit in the propellers or windshield. The planes were grounded at a critical point as the fire surged in size.

"That would be a sad situation, if someone's life was lost just by an opportunist that was trying to get some video to put on the Internet," Gaines says.

Gaines and Gatto responded with companion bills to intensify punishments for piloting drones into firefighting efforts, and to give emergency responders immunity for taking out drones that get in their way during lifesaving operations. This is just another case in which technology has gotten out in front of the law, says Gaines. In the absence of federal leadership to define the role of drones in American airspace, state and local leaders will need to step in to fill the void.

"We just see things spinning a little bit out of control," he says. "We feel like we need to have some sort of system in place and, generally speaking, states can act faster than the federal government."

Local regulations lag behind

All 50 states have taken some sort of legislative action regarding drones. There have been very few attempts, though, to regulate drone usage at the local level; a group at Syracuse University that tracks domestic drone policy lists only nine county or municipal drone regulations.

Many municipalities seem more worried about police using drones to collect evidence on the public than about careless hobbyists causing mayhem. The Berkeley (California) City Council in February approved a one-year moratorium on use of drones by the police department but not by private citizens. That fell well short of the city Peace and Justice Commission's recommendation from December 2012 to declare Berkeley a "No Drone Zone."

A possible regulatory model for hobbyist droning could be found in the practices of their commercial counterparts. The FAA started licensing commercial drone use in September, and since then commercial drone use has developed into a well-informed and regulated enterprise, says Mario Mairena, senior government relations manager for the Association for Unmanned Vehicle Systems International (AUVSI), a group representing companies that manufacture drones and other robotic systems.

If a film studio wants to use a drone to film aerial shots, Mairena says, they need to get permission from the FAA that specifies what geographical range they are clear to fly in. That means no drone accidentally wanders into the path of a 747 taking off.

"Many unmanned aircraft system enthusiasts are not taking the time to understand where they can and cannot fly," Mairena says, adding that the FAA could exercise greater power under its existing mandate to tackle dangerous aircraft behavior. "We feel that the FAA currently has the authority to enforce regulatory action on those who operate a UAS in a careless and reckless manner."

AUVSI partnered with the FAA on the informational campaign dubbed Know Before You Fly to get more information out there to recreational users. The FAA is also rolling out a B4UFLY app that crunches data on user location to tell them if they are safe to operate a drone there.

The case for caution

In the meantime, Mairena cautions against legislatures diving into drone regulations without stopping to check what's already on the books. Many states have passed laws forbidding the weaponization of drones, but the FAA already strictly prohibits arming civilian aircraft. Similarly, he argues, the fears of police using drones to enact Big Brotherish surveillance aren't warranted. Law enforcement has to obtain approval from the FAA to fly for specific reasons, and they use the drones for things such as search-and-rescue missions, hostage situations, and responding to accidents.

"You just can't get up there and fly," Mairena says of law enforcement. "That's not to say that there may not be bad actors, but legislators should not legislate on what-ifs."

Finding that regulatory balance isn't easy when it comes to technology. Laws shouldn't be hypothetical; they should respond to real needs and dangers of the populace. But if lawmakers wait too long to figure out those dangers, they end up watching drones shut down firefighting operations because nobody anticipated that would happen when the products first appeared on the market.

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