M O R G A N J O H N S O NB R Y T N E D . K I T C H I N

M C G I N N I S L O C H R I D G E , L L PJ U L Y 1 9 , 2 0 1 7

A U S T I N , T E X A S

The Legal Framework for the Operation of Unmanned Aircraft Systems

®

New World vs. Old World

Federal UAS Regulations

� 1966: The FAA Administrator shall: ¡ “The U.S. Government has exclusive sovereignty of airspace of the

U.S.”

¡ “Develop plans and policy for the use of the navigable airspace & assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft & the efficient use of airspace.”

¡ “Prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for … (B) protecting individuals and property on the ground.”

49 U.S.C. § 40103(a), (b)

Federal UAS Regulations

� 2012: FAA Modernization and Reform Act¡ Purpose: Funding, improve safety & capacity, create

efficiency.¡ “Any aircraft operation in the national airspace requires a

certificated and registered aircraft, licensed pilot, and operational approval.”

¡ § 336: Model Aircraft expressly excluded from FAA regulation if:÷ (1) capable of sustained flight, (2) within visual line of sight, (3)

hobby/recreation purpose.

Federal UAS Regulations

� Act, cont.¡ § 331: Unmanned Aircraft is an aircraft … operated without

the possibility of direct human intervention from within or on the aircraft.

¡ § 331: Unmanned Aircraft System (UAS) is an aircraft & associated elements … that are required for the pilot in command to operate safely and efficiently in the national airspace system.

¡ § 333: Section 333 Exemption is a streamlined expedited review to operate a UAS in national airspace (NAS).÷ Still highly regulated; costs approximately $30K.

Federal UAS Regulations

� “Aircraft” “Operating” in “NAS”

Federal UAS Regulations

� 2014: National Transportation Safety Board Issues Pirker decision

¡ FAA has authority to regulate UAS since within definition of “aircraft.”

¡ Court can enforce FAA regulations on commercial use of UAS.

¡ Civil penalties up to $10,000.

Federal UAS Regulations

� June 2016: FAA adopts Part 107 for non-hobbyist small UAS

¡ Operational Restrictions÷ Weight: less than 55 lbs÷ Visual line of sight only÷ May not operate over people÷ Daylight operations÷ Yield right-of-way to other aircraft÷ Maximum airspeed of 100 mph (87 knots)÷ Maximum altitude of 400 feet/structure ÷ Operator at least 16 years old ÷ Operator must pass aeronautical knowledge test ÷ Operator must be vetted by TSA

Federal UAS Regulations

� June 2016: FAA adopts Part 107¡ Allowed to fly within Class G Airspace without ATC

clearance

-FAA

Federal UAS Regulations

Federal UAS Regulations

� 2016—Huerta v. Haughwout (D. Conn. July 18, 2016)

¡ Youtube video of unmanned flying device with: ÷ (i) gun & (ii) “flame-throwing contraption”

¡ Argued that FAA regulations are “indeterminate” and “could be applied in absurd fashion to any airborne objects that could be said to ‘fly.’”

¡ Held: ÷ Agencies not required to resolve “beyond ambiguity the

hypothetical limits of [their] regulatory authority.”÷ If enforcement action, then questions exist about FAA’s apparent

belief that it has “regulatory sovereignty over every cubic inch of outdoor air in the United States (or at least over any airborne objects therein)” versus “navigable airspace.”

Federal UAS Regulations

� Huerta, cont.¡ “Congress surely understands that state and local

authorities are (usually) well positioned to regulate what people do in their own backyards.”

¡ “The Constitution creates a limited national government in recognition of the traditional police power of state and local government.”

¡ “No clause in the Constitution vests the federal government with a general police power over all of the air or all objects that leave the ground.”

Federal UAS Regulation Update

� May 2017—D.C. Court of of Appeals¡ Held: Public is not required to register drones.¡ Held: FAA did not have the authority to regulate so-called "model

aircraft."

� If case is upheld, public can ignore FAA requirement established in 2015.¡ The ruling is not yet enforceable, however, as the court gave the FAA

time to consider its legal options.

� Currently: FAA encourages registration for alldrone operators.

Boggs v. Merideth (W. D. Ken. March 21, 2017)

� Lawsuit brought against William Merideth - Kentucky man who shot down a drone that he believed was flying over his own property in 2015

� Held that federal jurisdiction did not exist

� Stated that claim is a trespass claim & should be resolved by state courts

� Thus, federal courts have not adequately addressed if flying a drone over private property is trespassing

� The best case law on the issue dates back to 1946, where the Supreme Court ruled in United States v. Causby that a chicken farmer could assert property rights up to 83 feet in the air

National Conference of State Legislatures

In 2015, 25 states passed UAS legislation or resolutions

In 2016, 14 states passed 26 pieces of UAS legislation or resolutions

Intersection of Federal & State Laws& Even Some Local Laws

85th Texas Legislative Session – Passed 3 Drone Related Bills

Texas Statutory Law

� “Texas Privacy Act”—Tex. Gov’t Code Chapter 423

¡ Authorized Uses

¡ Prohibited Uses

¡ Civil or Criminal Penalties

¡ Law Enforcement

Texas Statutory Law

� Uses:¡ Image in Public Place Taken From Height No More Than 8 ft.

Without Amplification¡ Public Real Property ¡ Owner of Oil/Gas/Water/Other for Inspect/Maintain of Pipeline or

Other Related Facilities¡ Consent obtained¡ Texas Licensed Real Estate Broker¡ Electric Utility, Natural Gas Utility, Telecommunications

÷ Maintenance reliability, inspection, maintenance within easements, routing and citing

¡ Port Authority and Surveillance¡ Image Taken by Engineer/Land Surveyor

Texas Statutory Law

� Uses, cont.¡ Oil and Gas Pipeline¡ Satellite Image for Mapping¡ Hazards: fire or spill of material¡ Law Enforcement

÷ In pursuit – documenting crime scene – border protection – high-risk tactical operations – missing person – property generally open to public – state of emergency

¡ Pursuant to Search/Arrest Warrant¡ Rescue¡ Professional/Scholarly Research & Development – Academic¡ Test Sight via FAA¡ Military¡ Insurance

Texas Statutory Law

� Prohibited—Criminal:¡ Image of Property/Person with Intent to Conduct Surveillance

÷ Class C Misdemeanor÷ Defenses:

¢ Person Destroys Image When:• (a) Knowledge Obtained• (b) Without Disclosing/Distributing

¡ Image + Possess/Disclose/Display/Distribute÷ Class B Misdemeanor÷ Each image separate offense÷ Defense:

¢ (a) Stop Using Image¢ (b) Destroyed Image

Texas Statutory Law

� Prohibited, cont.¡ Interaction with “Critical Infrastructure Facility”

¢ Within 400 ft.¢ Make Contact¢ Interfere with Operations or Cause Disturbance

÷ Class B Misdemeanor÷ Exceptions:

¢ Government¢ Law Enforcement¢ Owner/Operator of CIF**¢ Prior Consent¢ Commercial Purposed with FAA Approval

Texas Statutory Law

� Prohibited, cont.

� Does not apply to conduct committed by Owner/Operator of CIF

� CIF = “water intake structure, water treatment facility, wastewater treatment plant, or pump station.”

Texas Statutory Law

� Prohibited—Civil:¡ Private Right of Action ¡ Belief that image captured for surveillance¡ Remedy:

÷ Enjoin Violation÷ Recover Civilly: $5,000 or $10,000

¢ Depends on Number of Image÷ Damages if Malice

Texas 85th Legislative Session

� SB 840¡ Authorizes certain entities to use drones to capture images

� HB 1424¡ Creates a new offense for a person that flies a drone within 400 ft.

above a correctional or detention facility and sports venue

� HB 1643¡ Provides that a municipality, county or joint board created under

Section 22.074 of the Transportation Code may only adopt and enforce an ordinance, order or similar measure with regard to drones over certain facilities.

Commercial Uses

Commercial Uses

• Disaster management• Wildfire• Flooding• Search & Rescue

• Environmental:• Agricultural• Weather

• Law enforcement• Hostage Situations• Surveillance• Thermal Infrared

• Infrastructure• Bridges

• Utilities:• Telecommunications• Electric• Oil & Gas• Wind Farms

• Real Estate• Aerial Coverage/Mapping

• Media• News• Sporting Events

• Cinematography• Freight transport

Commercial Uses

� Drones for Delivery: flying pizzas, burritos, or medications to customers’ doors.

� Currently only capable of short distance/time deliveries.

� Startup: Volans-i¡ Developed long-range drones

for business to business, express deliveries.

More Public Safety Agencies in Texas Embrace Use of Drones

Other Uses

May 31, 2017:

May 11, 2017:

May 10, 2017:

May 30, 2017:

Drones Will Soon Help First Responders

A&M: Drones Could Boost Crop Production

Drone Acts as Flying Cell Tower to Provide Coverage Kilometers Away

Some Concerns

FAA vs. States State Tort Laws

• Property rights—where does airspace/FAA regulations begin?

• Is more than one sovereign empowered to regulate?

• Who may complain?• Public• Private

• Trespass• Nuisance• Invasion of Privacy• Property Damage &

Personal Injury• Negligence• Products Liability

Legal Issues

Trespass Law

A “trespass” is a intentional use of another’s real property, without authorization or privilege to do so.

Nuisance Law

A "nuisance" is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy the land.

A nuisance invades

another’s interests in any

or all of these ways:

(1) a negligent invasion;

(2) an intentional invasion; or

(3) other conduct abnormal and out of place with its surroundings.

Invasion of Privacy

Personal Injury/Products Liability

Negligence & Strict liability

Limits to FAA/Regulatory Compliance

As the Texas Supreme Court wrote:

"a permit is not a get out of tort free card."

“This is consistent with our common law rule that the mere fact that an administrative agency issues a permit to undertake an

activity does not shield the permitee from third party tort liability stemming from consequences of the permitted activity”

FPL Farming, Ltd. v. Environmental Processing Sys., L.C. (Tex. 2011)

Contracting

� Clear Indemnity with Regard to Damages/Injury

� Comply with Proper Licensing and Permitting

� Specific Drone Insurance

� Images = Private Property

Contact Information

Morgan JohnsonBrytne D. Kitchin

McGinnis Lochridge LLP600 Congress Ave., Ste. 2100

Austin, TX 78701(512) 495-6033

mjohnson@mcginnislaw.combkitchin@mcginnislaw.com

www.mcginnislaw.com