By Fred L. Somers, Jr., P.C.1 on November 26, 2017
Recently, when attending a wedding rehearsal dinner at a Charlotte, N.C. country club, we withdrew to the open air patio to enjoy the sunset overlooking the lake fronting the 18th hole of the golf course. Suddenly, out of the sky appeared an unmanned small aircraft or drone. It spun down and settled on the lake surface. After resting for several moments, it rose and disappeared over the horizon.
We were intrigued at this becoming more frequent sighting. Who did we suppose regulated the flight of this drone? Was the drone equipped with a camera? Did the private club management know the club had been “invaded” by a flying object with the potential for infringing on its and its members privacy? Can the club prohibit or seek recourse against this invasion?
More recently, we were asked by a private club client to advise it on the legal implications of allowing for or prohibiting the operation of model aircraft drones from and on its property.
We first addressed existing state law. The club is located in the state of Georgia. In Georgia, a state statute bars the adoption of “Any ordinance, resolution, regulation, or policy of any county, municipality, or other political subdivision of this state regulating the testing or operation of unmanned aircraft systems” unless an ordinance was adopted on or before April 1, 2017. However, the Georgia statute, unlike Florida2 and 24 other states3, doesn’t allow localities to enact ordinances relating to privacy, nuisances, voyeurism, harassment, reckless endangerment, property damage or other illegal acts. Thus, e.g., in Florida, if a local government adopts such an ordinance, a club within its jurisdiction would have recourse to ask the local government to prosecute the offending drone operator for the illegal act. However, we observe tracking down the offender may be a difficult task it the drone operator or drone isn’t readily identifiable.
At least nineteen other states have adopted laws addressing drone operation.4 An overwhelming majority of states, if they haven’t already done so, are contemplating adoption of unmanned aircraft rules.5
In Georgia “Unmanned aircraft systems” are defined in § 6-1-4 to include an aerial vehicle that:(A) Does not carry a human operator and is operated without the possibility of direct human intervention from within or on the aircraft; (B) Uses aerodynamic forces to provide vehicle lift; (C) Can fly autonomously or be piloted remotely; and (D) Can be expendable or recoverable.
We conclude drones, in the sense of unmanned aircraft, are included within the foregoing definition. However, § 6-1-4 does not prohibit a private property owner, e.g., a private club, from the adoption of policy or a rule regulating the operation of unmanned aircraft systems.
Because counties are local governments who may regulate drone operation we looked into the applicable local county ordinances. We found the applicable county ordinance (adopted before April 1, 2017) incorporates by reference the FAA Air Traffic Rules as established by the Federal Aviation Agency and currently in effect, or as subsequently revised or amended, are hereby adopted by reference and made a part of these rules as fully as if the same and each and all of them were set forth herein.
Yet another county ordinance addresses miscellaneous operations such as aerial advertising and other aeronautical activities not hereinbefore provided for. These operations may be conducted by any person, firm, or corporation only with approval of the county commission and will be subject to the terms and conditions as may be required by the county commission. Reasonable terms and conditions for the privilege of engaging in these various services will be established by the county commission commensurate with the nature and scope of the activities involved. However, we didn’t find any such terms and conditions as described published since the adoption of this ordinance.
The incorporation by reference of FAA Rules in the county ordinances led us to review extant FAA Rules governing or regulating the use of drones.
The FAA Rules applicable to drones are found in Part 107.6 They consist of 624 pages. A Summary is provided by the FAA. [Part 107 addresses the commercial use of unmanned aircraft under 55 lbs.7A fact sheet was published by the FAA explaining its intent.8
Part 107 states it applies to model aircraft endangering the safety of the National Airspace System. However, it does not apply to model aircraft that satisfy all of the criteria specified in section 336 of Public Law 112-95.9 The law codifies the FAA’s enforcement authority in part 101 by prohibiting model aircraft operators from endangering the safety of the NAS.
In our exercise, we were only addressing model aircraft so we reviewed the cited section 336. We did not purport to address the operation of commercial drones.
Public Law 112-95 Section 336 Model Aircraft provides:
. . . the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if— (1) the aircraft is flown strictly for hobby or recreational use; (2) the aircraft is operated in accordance with a community- based set of safety guidelines and within the programming of a nationwide community-based organization; (3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization; (4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and (5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)). (b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system. (c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is— (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes. [Underlining provided for emphasis].10
The FAA also has published model aircraft rules.11 A model aircraft is defined as set forth in Public Law 112-95 Section 336 quoted above.
Model aircraft operators that comply with all of the Section 336 operational requirements during flight do not have to register their UAS with the FAA. [Underlining supplied for emphasis].
The FAA further has stated if you do not operate exclusively under the Special Rule for Model Aircraft, you must: Register your UAS if it weighs more than 0.55 pounds and less than 55 pounds; Label your UAS (PDF) with your registration number; and Read and understand all safety guidelines. [Underlining supplied for emphasis]. Registration costs $5 and is valid for 3 years. If you are flying under the Special Rule for Model Aircraft and you wish to register voluntarily, you should register as a “modeler.” If you are flying under part 107, Section 333, part 91, a public COA, or for non-recreational purposes in general, you should register as a “non-modeler.”
However, we note the FAA requirement for registration of model aircraft has been successfully challenged and set aside by a federal district court in 2017.
. . . the FAA Modernization and Reform Act. Section 336(a) of that Act states that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112-95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition.12
We addressed the FAA and Section 336 requirement that “the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.” We wondered what constitutes a “community-based” safety guideline. Note the conjunctive requirement the safety guideline be “within the programming of a nationwide community based organization”. What qualifies as the latter kind of organization?
It appears an existing community-based set of safety guidelines within the programming of a nationwide community-based organization is a reference to the Academy of Model Aeronautics, (“AMA”), rules and guidelines.13 The FAA has acknowledged the AMA as a “community based organization”.14 It appears AMA also qualifies as a nationwide community-based organization.
Finally, but not exhaustive of the regulatory scheme applicable to model aircraft operation are the Federal Communications Commission, (“FCC”) requirements for the operation of wireless radio transmitters used to control model aircraft and transmit video images during flight.15
Most radios included within model aircraft control systems are certified by the equipment manufacturer or vendor for low-powered, license-exempt operations on frequency bands authorized under Part 15. On the other hand, because of power restrictions, very few First Person View (FPV) video systems are certified for unlicensed use under Part 15 and may be operated only with an Amateur Radio license. . . .
Conclusion. At least in the state of Georgia, a private club is likely presently free to prohibit the operation of drones from on its property. It also may be presently free to allow for the limited operation of drones from on its property satisfying the definition of model aircraft contained in the FAA Modernization and Reform Act and complying with the FAA model aircraft rules (dehors its registration requirement). Because the law especially in the various states is constantly evolving respecting drones, readers are cautioned to check the most recent resources available when addressing the viability and permitted extent of drone operation.
This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice or the formation of a lawyer/client relationship. The author of this blog is not certified by any state agencies or boards of legal specialization. This blog may constitute attorney advertising in some jurisdiction.
1 The author is an attorney located in Atlanta, Georgia with a concentration in trade association and private clubs.
3 See http://www.ncsl.org/research/transportation/2016-unmanned-aircraft-systems-uas-state-legislation-update.aspx. This site provides a comprehensive survey of existing state laws affecting drone operation as of its date of publication.
10 Notably, at least one state, North Carolina, amplifies the definition of model aircraft as follows: “Model aircraft. – An aircraft, as defined in G.S. 63-1, that is mechanically driven or launched into flight and that meets all of the following requirements: a. Is flown solely for hobby or recreational purposes. b. Is not used for payment, consideration, gratuity, or benefit, directly or indirectly charged, demanded, received, or collected, by any person for the use of the aircraft or any photographic or video image produced by the aircraft.” See https://www.ncleg.net/Sessions/2017/Bills/House/PDF/H337v4.pdf
12 Taylor v. Huerta, D.C. Cir. 2017 Case No. No. 15-1495.