This article first appeared in the Sports Litigation Alert, by Hackney Publications.
The use of unmanned aircraft systems (UAS or drones) is not just reserved for covert military operations anymore. Indeed, today, there is an abundance of small, nimble, drones taking to the sky for a variety of recreational and commercial purposes. Internet giant Amazon has plans to use drones for deliveries, and sports organizations and media outlets are using them to enhance their filming operations.
Indeed, UAS technology can be useful to sports organizations by providing them with unique aerial perspectives and footage to review. It can give coaches a different view when analyzing player spacing, hand placement, footwork or formation play, not to mention the low altitude view from behind a quarterback, for example, or a defensive player. Sports teams have also used drone footage as part of promotional material on their websites and for analytical data that cannot be gathered from traditional use of video equipment.
Many believe that the next major development in aviation is the safe integration of UAS into the national airspace system (NAS). Here are five things that you might wish to consider about the use of drones in the United States before you decide whether to take to the skies.
Since the early 1980s, recreational/hobbyist model airplane enthusiasts have enjoyed virtually unfettered access to the nation’s airspace without obtaining specific FAA authorization as long as they adhered to voluntarily guidelines, titled the “Model Aircraft Operating Standards” contained in AC 91-57. These voluntary guidelines encouraged recreational/hobbyist modelers to fly far away from populated or noise-sensitive areas, keep flights to less than 400 feet in altitude, notify an airport operator if flying within three miles of the facility, and give right-of-way to (and avoid flying in proximity of) manned aircraft.
In 2007, the FAA learned that the AC 91-57 guidelines were being used as a basis for commercial UAS flight operations, contrary to the FAA’s position that AC 91-57 excluded flying UAS for business or commercial purposes. Federal statutes have defined business or commercial purposes as “the transportation of persons or property for compensation or hire.” Consequently, use of drones for business or commercial purposes required operators to obtain a special airworthiness certificate, which is a very lengthy and costly process.
In February 2012, Congress passed the FAA Modernization and Reform Act of 2012 (the 2012 Act), which required the FAA to develop a roadmap and final regulations for integrating UAS into the NAS by September 30, 2015. It is unlikely that the FAA will meet this deadline. In the interim, the FAA is reviewing and granting exemptions to entities wishing to use UAS for commercial purposes, in accordance with Section 333 of the 2012 Act. More than 1,300 entities have received Section 333 exemptions since the first one was granted on September 25, 2014.
More than a third of all Section 333 exemptions granted seek the exemption for aerial photography, videography and filmmaking purposes. Although most of those exemptions indicate that the UAS will be used for photography and videography for television, motion picture, real estate, construction, infrastructure, etc., some applications indicate a specific intent to be used to acquire sports images. To date, major events such as the PGA Tour, Formula One races, and the Winter Olympics in Sochi, Russia, have employed UAS technology. A wide range of U.S. sports organizations, including several college and professional teams, are seeking ways to do so as well…legally.
Until the FAA issues final regulations governing commercial UAS operations, the fastest way to legally fly a UAS is to apply for a Section 333 exemption. The application requires the commercial entity to specify the exact drone(s) that will be used, the purpose, the specific locations of use and proximity to any airports, and how the UAS will be operated. The FAA reviews applications on a case-by-case basis to determine whether the specific drone and proposed operation are appropriate for use in the NAS. Typically, the FAA requires Section 333 exemption grantees to adhere to the following parameters: (a) the drone and payload weigh under 55 pounds; (b) flights are restricted to daylight operations; (c) flight speeds are less than 50 knots; (d) maximum altitude is 400 feet; (e) drones are operated within visual line of sight of the pilot (along with a visual observer to assist the pilot); (f) flights are further than five miles away from any airports; (g) drones are not controlled from a moving vehicle; and (h) UAS documents are kept readily available on the ground.
If the FAA approves the Section 333 application, the exemption holder must also obtain a Certificate of Waiver or Authorization (COA). The COA is essentially an approval to operate a drone at a specific time and place. To facilitate more commercial drone flights, the FAA automatically grants a “blanket COA” for drone flights at or below 200 feet above ground level to a drone operator with a valid Section 333 waiver, provided proper flight conditions exist. The drone operator must also use or hire a pilot with an FAA-issued sport pilot certificate to operate the drone and do so within the confines of applicable flight regulations and the terms of the FAA exemption.
Entities flying drones for commercial use without FAA approval are subject to a variety of FAA warnings and civil penalties, not to mention potential federal criminal charges and the negative publicity associated with a UAS incident or federal charges. Currently, the FAA has focused most of its enforcement efforts on educational initiatives and warning letters, but it has issued fines for what it determines to be a “careless” or “reckless” operation. The FAA retains the authority to punish violators thousands of dollars per violation, depending on the circumstances.
In addition to FAA rules, many states have proposed and/or passed legislation regarding the use of drones. Cities and counties have passed local ordinances governing drone use as well. A legal review of the state and local laws and regulations affecting drone use where the operator plans to fly should be done as part of any evaluation process.
Despite the apparent advantages that appear to come with authorized UAS usage, there are great concerns related to spectator and participant injury that come along with the unpredictably of certain drone operations. These dangers include pilot error, equipment malfunctions, and an unpredictable flight environment. Because of these risks, teams wanting to use drones in their sports operations will want to carefully consider the environment in which they choose to fly and whether UAS use should occur only in a closed setting rather than an area open to the general public. Although such precautions may reduce risk, they would not eliminate the risk to players, coaches, or employees within the drone’s vicinity, even if flying UAS indoors (where a Section 333 exemption is not required).
Organizations that have been approved to operate UAS should post warning signs, employ safety netting or officers to protect observers where necessary, and carry appropriate insurance to cover the various risks and liabilities associated with drone use. If using a third-party drone operator, insist that they do so as well. Appropriate insurance coverage, which the FAA may consider when evaluating a Section 333 exemption, should include, among other liabilities, personal injury, invasion of privacy, property damage, and workers’ compensation. The main providers in the drone insurance space are currently offering coverage to businesses operating drones for commercial purposes.
This is a very fast growing technology industry, and the restrictions on commercial use of UAS are fairly stringent. Hopefully, once the small UAS regulations become final, the FAA will lessen some of the more restrictive requirements, and the process will be simplified. In the meantime, potential users need to understand the law and adhere to FAA rules, state laws, and local ordinances.
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