DroneFilm1This guest post was written by Jason D. Knight, a Southwestern 2016 juris doctorate candidate.

Hollywood was sky high just six months ago when federal regulators recognized the need to support the industry’s global leadership by allowing select firms to fly unmanned aerial systems, aka drones, to shoot movies. Regulators promised to follow quickly with new rules for all drones and their flights but the months since have only proven to be full of ups-and-downs for policy-makers trying to figure how to deal with this fast-growing and novel technology.

It’s been nothing less than a bumpy ride, especially in the Golden State: Fire fighters battling record blazes have had to curtail their work due to illegal drone incursions; airports and commercial aviators are reporting illegal drone flights in regulated air space nationwide with frightening regularity; Los Angeles police say an illegal drone flight interfered with one of their investigations; and only the intervention of Gov. Jerry Brown’s veto has kept state lawmakers from stepping in a trying to impose their own rules about drone flights.

Is this technology dangerous, innovative, useful, or a nuisance? What, in short, is up with drones now? Let’s take off with some key information about them…..

Drones defined

Yes, drones seem to be on everyone’s minds these days. Whether it is to mount a camera or survey a location, many in Hollywood and beyond are taking to sky.

The term drone seems to have two contemporary meanings:

  • It can be an effective camera platform that can save money and lives, especially by replacing traditional camera-mounted manned-helicopters. Here, a drone is formally known as a UAS.
  • It can be a nuisance flown to invade privacy and snap photos for star-struck tabloids and sensationalistic celebrity programming. This second use is met with disdain by celebrities and private citizens.

Drones are more complicated than civilians might think. They typically can be smaller quad- and octo-copters carrying a camera.. This affects how they are categorized.

droneFilm2Types of Craft

Civil UAVs fall in one of three categories: UAS (heavier than 55 pounds), sUAS (55 pounds or lighter), and micro-UAS (four pounds or lighter). The devices further are distinguished by their capabilities. The sUAS variety can fly short distances and typically carry cameras; they must fly only within the pilot-In-command’s line of sight. In contrast, full-scale UAS may fly for hours and even days and may be fitted with advanced sensor arrays. These full-scale drones also may fly beyond their pilots’ line of sight.

Until recently, states and the federal government have allowed drones to proliferate with little regulation. The Federal Aviation Administration (FAA) and states like California since have moved to regulate who may fly them and how these aircraft may be flown.

File and fly

The FAA imposes a case-by-case “file-and-fly” system in which operators like movie production and oil companies may legally operate in the National Airspace. The agency authority springs from Section 333 of the FAA Moderation and Reform Act of 2012.

An operator applies for a Certificate of Authorization with an instrument known as a Section 333 waiver. In essence, the applicant must state the geographic area of operation, the mission profile and adhere to a myriad of safety procedures. Certificates are typically limited by the scope of the flight plan and a one-year period.

The FAA has issued more than 1,600 Section 333 waivers and will continue this procedure until it rolls out its Comprehensive Plan and Small UAS Notice of Proposed Rulemaking for drones and their integration in national air space.

Thirteen sectors have been identified for Section 333 waivers. These sectors include: television and film; aerial survey; industrial survey inspection; delivery services; real estate photography; UAV manufacture; photography; precision agriculture; UAV training; surveillance; emergency services; humanitarian services; and academic. Each sector has its own advantages and risks.

TV and film are the sector of keenest in interest in California where hundreds of production companies have sought and been and been awarded Section 333 waivers. PictorVision a pioneer of drone-mounted camera systems, was awarded a waiver most famously in September 2014.

Rogue Operators

But for every legitimate operator, sadly, there are vigilantes who ignore or flout the current process and these sky pirates prompt negative headlines. These irresponsible flyers have been charged with obstructing justice. However, this will probably not deter those who fly their drones with impunity to harass others and invade private or regulated air space.

Officials have set guidelines and enforcement mechanisms. The FAA distinguishes between model-aircraft drones and commercial devices.

These guidelines include operational procedures, such as barring flights within five miles of an airport, prohibiting interference with manned aircraft; and requiring operators to maintain sight of their craft. Operators may not fly a sUAS in a careless or reckless manner. Existing FAA regulations prohibit careless or reckless operation as seen in the Huerta v. Pirker case. Specifically, under 14 CFR 91.13(a). no one may operate, “an aircraft in a careless or reckless manner so as to endanger the life or property of another.”

States step in

Many states, besides California, also have sought to impose drone regulations, including in Texas, North Carolina, and Oregon. The state laws, in general, criminalize drone-enabled surveillance and weaponry.

The state regulations have created a legal “quilt,” and operators must be aware of navigational requirements in differing jurisdictions, in addition to maintaining their vigilance in properly piloting craft for commercial flight or in federally regulated spaces.

Jason D Knight HeadshotKnight is a high technology law researcher for Prof. Michael D. Scott. He is pioneering work in drone law and assisted in organizing the first-ever conference  at Southwestern Law School on drone law on the West Coast in 2014, “Using Drones in the News and Entertainment Industries; Legal and Regulatory Issues.” Knight has written on drone law and has presented internationally, including at the IEEE Conference Mechatronic Systems in Sengallia, Italy. He is president of the school’s Intellectual Property Law Society; IP Editor of the Southwestern Law Commentator Newspaper; Secretary to Southwestern’s Law Federalist Society chapter; student liaison to the Federalist Society International and National Security Practice Group. He also maintains a position as a managing law clerk at Guidance Software, Inc.