Douglas Spotted Eagle and Brady Reisch headed into the field to collect aerial construction data over fourteen weeks with three different drones. Their goal was to determine which drone was best for the construction job site.
They used three popular aircraft for the comparisons and the results were pretty surprising. Read all about it in their published article with Commercial UAV NEWS.
Organizations looking to hire a Drone Services Provider/contractor (DSP) or training provider are faced with so many choices (and questions), it’s understandable when confusion clouds the process. To help with details that will smooth some of the edges in the interview process, here are a few tips for hiring a Drone Service or Training provider.
1) Request their Remote Pilot Certificate. Many refer to this as a “license,” but it is a certificate issued by the FAA to persons that have passed their written Part 107 testing examination. DSPs and training personnel should both be able to produce this carded document on demand. We have discovered several “trainers” instructing without holding this certification, which could potentially create legal issues for the hiring agency, and there are many DSP’s who do not hold this certificate.
Be aware that having this certificate offers no evidence whatsoever that the certificate holder has any skill, and does not demonstrate their hours of flight time nor flight experience.
It is important to note that hiring a non-certificated pilot carries large fines for the hiring agency/individual. Do not hire a non-certificated sUAS operator.
2) Ask to see a certificate (proof) of insurance. Some DSP and instructors hold full-time insurance, while less professional operations purchase insurance per flight. They should hold at minimum, a million dollar liability policy. Ensure their insurance is written by a known company. There are a few inexpensive, fly-by-night insurance companies available to DSP’s. A professional, business-focused DSP should be able to immediately provide proof of insurance or Certificate of Insurance. Things can go wrong with any project; ensure your company, property, and business are protected by the DSP’s insurance policy. This is often one of the most overlooked aspect of an operation, and if the pilot does not have insurance, the person or organization hiring the pilot is at risk. Many/most DSP and training organizations will have hull insurance to replace their aircraft in the event of an incident, while many “wing it” without liability coverage. It’s not uncommon for large companies or event management to require a certificate of insurance that specifically names them as a beneficiary of the insurance in the event of a claim. Without liability insurance, we recommend the training or service provider not be hired, or if hired, an understanding that risk exists.
3) Peruse their website. Are the images seen on their website relevant to the job to be flown? More importantly, is the DSP the source of the images? It’s common for low-experience DSP to liberally “borrow” from other websites, presenting images as intimated evidence of their work. The difficulty is knowing whether they captured the images themselves (or not). One quick method of determining a photo’s origins is to right click the image and choose “Search Google for this Image.” Click the image to see how many results come up in a search.
In this particular example (as presented on several sites intimating the DSP is active in Public Safety), the image was not captured by a sUAS, but rather a hillside shot from a well-known AP photographer (image courtesy Associated Press).
Following Hurricane Irma for example, disaster images popped up across the web, with unqualified DSP’s intimating they captured the images and have the FEMA qualifications for disaster or insurance-related work when in practice, they do not.
It’s much easier to hire someone for real estate imaging than for a construction site capture that will be stitched into an orthogrammatic image, just as it’s more difficult to find a DSP that has knowledge of flare stack inspections vs finding someone to document a community marathon or event. Ensure the DSP has knowledge surrounding specific needs to guarantee everyone’s happiness at the end of the flight. This is also a safety issue. Having a photo on a website should not be an indicator of activity nor proficiency.
4) View a reel of their work. This isn’t necessary when selecting a training organization, but is critical if the work being hired involves images, video, or data analysis output. Try to determine if they are the organization that captured the video or if the video has been “borrowed” from other websites similar to the example above.
Are they proficient in shooting quality video or photos? Are they able to properly use tools such as Pix4D, AgiSoft, DroneDeploy for final output and data evaluation?
If using an aggregator, ask if the DSP has skills specific to the area where they’ll be working. Many drone pilots are very capable of shooting nice photos, but have little to no training/skill for specific tasks such as real estate or inspection images.
5) Does the DSP hold any active operational waivers? This is critical if flight beyond sunset or prior to sunrise is required, and needed for flight over people, altitudes beyond 400’, flight in clouds, and other regulated activity. Without these, certain classifications of flight may not be accessible to the DSP nor the client.
If images like this one are seen on the website, it’s clear that the pilot does not observe FAA regulation, placing both the client and the pilot at risk for regulatory response by the FAA.
(image courtesy of ABC)
5) Who owns the original images/video? Spell this out in a Work for Hire contract if the client wants to own the source material. Most DSP’s will charge an additional fee if they do not retain rights to the original work. Determine how the work data will be kept secure in any event. Copyright nearly always belongs to the photographer/person who captured the images unless a signed Work for Hire agreement is part of the discussion.
6) If seeking a training provider, ask about their curriculum, training materials, and area of training. When it comes to flight, online-training is effectively useless, and practical flight programs require clear objectives with pre-test and post-training flight evaluations. One of the most valuable experiences a pilot or pilot’s organization can have is to be evaluated by a qualified third party. Look for providers that embrace the Part 141 training pathway.
Look for any specialized certifications such as ISO audits, AUVSI’s TOP program certification, FAA certifications, or certifications from an other aviation-related training organization. Generally speaking, there is a significant difference between an instructor who teaches sUAS with risk-mitigation, and a super-hot, great sUAS pilot.
Ask about documentation that the pilot candidate will be taking with them post-instruction.
Identify what sort of post-training re-certification or recurrent training is recommended or required. Having a certificate from a reputable flight school will generally aid in applying for operational waivers and in some cases, may inspire an insurance provider to offer a discount based on training documents.
Hiring a DSP or training services provider/contractor in the world of Aviation isn’t quite as straightforward as it might seem. It’s not terribly different than the facade buildings of the 19th century; something looks great on the surface, but in actuality, the backside is found wanting.
UAS are regulated by federal law, and any organization wants to take steps to ensure their services and education fall within all parameters of regulations. Following the above steps should help any organization avoid pitfalls related to safety and quality work.
All these FARs, what’s a drone pilot to do in order to understand them? Do they matter?
In virtually every aviation pursuit except for sUAS, an understanding of regulations is requisite and part of most testing mechanisms. As a result, many sUAS pilots holding
a Remote Pilot Certificate under Part §107 are woefully uninformed, to the detriment of the industry.
Therefore, sUAS pilots would be well-served to inform themselves of how each section of relevant FARs regulate components of aviation.
Let’s start by digging into the intent of each Part.
- §Part 91 regulates General Operating and Flight Rules.
- §Part 101 regulates Moored Balloons, Kites, Amateur Rockets, Unmanned Free Balloons, and some types of Model Aircraft.
- §Public Law Section 336 regulates hobby drones as an addendum to Part 101.
- §Part 103 regulates Ultra-Light Vehicles, or manned, unpowered aviation.
- §Part 105 regulates Skydiving.
- §Part 107 regulates sUAS
- §Part 137 regulates agricultural aircraft
RELEVANT PARTS (Chapters):
This portion of the FARs is barely recognized, although certain sections of Part 91 may come into play in the event of an action by the FAA against an sUAS pilot. For example, the most concerning portion of Part 91 is 91.13, or “Careless or Reckless Operation.” Nearly every action taken against sUAS pilots have included a charge of 91.13 in the past (prior to 107).
Specific to drone actions, The vast majority of individuals charged have also included the specific of a 91.13 charge.
sUAS pilots whether recreational or commercial pilots may be charged with a §91.13 or the more relevant §107.23 (reckless)
It’s pretty simple; if there are consequences to a pilot’s choices and actions, it’s likely those consequences also included a disregard for safety or planning, ergo; careless/reckless. The FAA has recently initiated actions against Masih Mozayan for flying his aircraft near a helicopter and taking no avoidance action. They’ve also taken action against Vyacheslav Tantashov for his actions that resulted in damage to a military helicopter (without seeing the actual action, it’s a reasonable assumption that the action will be a §91.13 or a §107.23 (hazardous operation).
Other parts of Part 91 are relevant as well. For example;
- §91.1 Applicability.
(a) Except as provided in paragraphs (b), (c), (e), and (f) of this section and §§91.701 and 91.703, this part prescribes rules governing the operation of aircraft within the United States, including the waters within 3 nautical miles of the U.S. coast.
The above paragraph includes sUAS. Additionally, Part 107 does not exclude Part 91. Airmen (including sUAS pilots) should be aware of the freedoms and restrictions granted in Part 91.
§91.3 Responsibility and authority of the pilot in command.
(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.
(b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.
(c) Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the Administrator, send a written report of that deviation to the Administrator.
§91.7 Civil aircraft airworthiness.
(a) No person may operate a civil aircraft unless it is in an airworthy condition.
(b) The pilot in command of a civil aircraft is responsible for determining whether that aircraft is in condition for safe flight. The pilot in command shall discontinue the flight when unairworthy mechanical, electrical, or structural conditions occur.
§91.15 Dropping objects.
No pilot in command of a civil aircraft may allow any object to be dropped from that aircraft in flight that creates a hazard to persons or property. However, this section does not prohibit the dropping of any object if reasonable precautions are taken to avoid injury or damage to persons or property.
§91.17 Alcohol or drugs.
(a) No person may act or attempt to act as a crewmember of a civil aircraft—
(1) Within 8 hours after the consumption of any alcoholic beverage;
(2) While under the influence of alcohol;
(3) While using any drug that affects the person’s faculties in any way contrary to safety; or
SubPart B also carries relevant information/regulation with regard to operation in controlled airspace, operations in areas under TFR ((§91.133), operations in disaster/hazard areas, flights during national events, lighting (§91.209)
Part §101 has a few applicable sections.
Subpart (a) under §101.1 restricts model aircraft and tethered aircraft (balloons). Although subpart (a.4. iiv) is applicable to balloon tethers, there is argument that it also applies to sUAS. Subpart (a.5.iii) defines recreational flight for sUAS/model aircraft.
Finally, §101.7 re-emphasizes §91.15 with regard to dropping objects (may not be performed without taking precautions to prevent injury or damage to persons or property). Public Law 112-95 Section 336 (which may be folded into a “107 lite” version), clarifies sections not added to Part 101.
Bear in mind that unless the pilot follows the rules and guidelines of a NCBO such as the AMA, AND the requirements of that NCBO are met, the flight requirements default to Part 107 requirements.
Part §103 regulates Ultralight vehicles (Non powered, manned aviation)
Although no component of Part §103 specifically regulates UAV, it’s a good read as Part 103 contains components of regulation found in Part 107.
Part §105 regulates Skydiving.
Part §105 carries no specific regulation to sUAS, an understanding of Part 105 provides great insight to components of Part 107. Part 107 has very few “new” components; most of its components are clipped out of other FAR sections.
Although many sUAS pilots “have their 107,” very few have actually absorbed the FAR beyond a rapid read-through. Without a thorough understanding of the FAR, it’s difficult to comprehend the foundation of many rules.
Part 137 applies specifically to spraying crops via aerial vehicles.
Those looking into crop spraying via sUAS should be familiar with Part 137, particularly with the limitations on who can fly, where they can fly, and how crops may be sprayed.
One area every ag drone pilot should look at is §137.35 §137.55 regarding limitations and business licenses.
The bottom line is that the more informed a pilot is, the better pilot they can be. While there are many online experts purporting deep knowledge of aviation regulations and how they specifically apply to sUAS, very few are familiar with the regulations in specific, and even less informed as to how those regulations are interpreted and enforced by ASI’s. We’ve even had Part 61 pilots insist that the FSDO is a “who” and not a “what/where.” Even fewer are aware of an ASI and how they relate to the world of sUAS.
FSIM Volume 16
It is reasonably safe to say that most sUAS pilots are entirely unaware of the Flight Standards Information Management System, aka “FSIMS.” I’ve yet to run across a 107 pilot familiar with the FSIMS, and recently was vehemently informed that “there is nothing beyond FAR Part 107 relative to sUAS. Au contraire…
Familiarity with the FSIMS may enlighten sUAS operator/pilots in how the FAA examines, investigates, and enforces relevant FARs.
Chapter 1 Sections 1, 2 and 4 are a brief, but important read, as is Chapter 2, Section 2.
Chapter 3 Section 1 is informational for those looking to apply for their RPC Part 107 Certificate.
Chapter 4 Sections 2, 5, 7, 8 are of particular value for commercial pilots operating under Part 107.
Volume 17, although related only to manned aviation, also has components related to 107, and should be read through (Chapters 3 & 4) by 107 pilots who want to be informed.
Gaining new information is always beneficial, and even better if the new information is implemented in your workflow and program. Become informed, be the best pilot you can be, and encourage others to recognize the value in being a true professional, informed and aware.
IF A HOMEOWNER DOESN’T OWN THE AIR ABOVE THEIR HOME, WHO DOES?
Recently, heated discussions surrounding the topic of “Air Rights”have arisen within the UAS community, generating confusion and division within the community. In one forum of UAS professionals, an industry member was so angered by the confusion that negative press releases were threatened, jobs were held ransom, and phone calls to local FSDO’s were made.
The intent of this article is to clear up a few misconceptions. Note the author is not an attorney, but rather a very active, long-time member of the aviation and UAS communities (although this article has been vetted by multiple aviation attorneys).
As recently as July 2018, the FAA has re-emphasized their dominion over the National Air Space (NAS), meaning that the citizens of the United States own the NAS, with the FAA being the governing body. Municipalities, cities, and states may not abrogate nor preempt federal control over this airspace.
In general terms, once an aircraft is a theoretical “inch above the blades of grass,” it is in the NAS and subject to federal control, not state nor local control.
In general terms, an aircraft at rest/on the ground, may be subject to state or local regulation. Municipalities may control where an aircraft may launch or be recovered through regulation of public grounds. Municipalities should not govern launch/recovery on private property. That said, a few misguided municipalities have created regulation surrounding UAS launch/recovery in much the same way they have mandated that dog houses must meet a certain specification, or that small animals such as chickens may not be raised in certain zones.
We also are observing either blissful ignorance or a coordinated attempt at stifling commercial enterprise in the recent actions of the Uniform Law Commission (ULC), who have proposed national legislation creating “aerial trespass” regulation. These absurd notions have inspired the FAA to release the aforementioned press release regarding their dominion over the skies of CONUS. The National Press Photographers Association offered up a few words to the ULC as well. However, the ULC proposal is just that at this point; a proposal of legislation. It is not law, and unlikely to become such as currently written.
Taking a specific case in point; a property owner and their real estate agent hire a UAS pilot to capture aerial photos of a home coming onto the market. During the capture of these photos, the pilot’s aircraft is hovering over a neighbor’s home. The camera targets the for-sale home and at no point does the camera capture images of the neighboring home.
Does the neighboring homeowner have a right to demand the aircraft not fly over their home?
So long as the images being captured are of the home the pilot was hired to capture, the neighbor has no claim to control where the UAS flies. Moreover, there is little right to expectation of privacy should the camera capture ancillary areas of the neighbor’s yard (known in legal terms as “curtilage”).
Curtilage “is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’”71 As property owners may “reasonably . . . expect that [this] area immediately adjacent to the home will remain private,”72 the Court has found that curtilage is protected under the Fourth Amendment. Although the Fourth Amendment’s protections extend to curtilage, the Court has held that property owners do not have a reasonable expectation of privacy against naked-eye observation of curtilage from publicly navigable airspace. (Columbia Journal of Law)
Based on existing jurisprudence, warrantless drone surveillance of curtilage may not violate the Fourth Amendment if the drone operates within airspace legally navigable by drones. While this paragraph is predominantly related to law enforcement, it is reasonable to extend the concept into commercial/107 flights.
Homeowners have a right to an expectation of “reasonable privacy.” What is “reasonable” is a matter of debate. Sunbathing in the backyard next door to a home that has a deck higher than a fence, for example, would not be a “reasonable expectation of privacy.”
*it is important to note that the legal term “reasonable expectation of privacy” differs greatly from “right to privacy.”
Unfortunately, there is no Fourth Amendment right to privacy as relates to private citizens or commerce, leaving room for discussion and interpretation. Restrictions which law enforcement must follow in order to observe a property are very different from what a commercial UAS pilot must observe.
It is also a requirement in reading any law regarding privacy that may encompass law enforcement be accompanied by an understanding that law enforcement is held to a higher bar of respecting privacy than a citizen flying a commercial drone. Many states require warrants for any form of aerial surveillance, photography, or videography. Some states require additional certification for public safety officials/first responders, although this issue has recently been seen as a preemption and these requirements may quietly fade away.
IN GENERAL TERMS
The discussion regarding UAS photographing, mapping, or overlying a private home is fairly simple.
Regardless of whether the UAS is flying over a home, yard, easement, or other accessoral structures, a UAS pilot is well within their rights as granted by the FAA (discussion of waivers and airspace aside). So long as there are no MOA, TFR, or similar restrictions in place, the sky is a broadly accessible highway for aerial vehicles.
But…what about the UAS the hovers in a backyard and takes photos of sunbathing children? Doesn’t the FAA regulate this? Doesn’t the homeowner have “air rights?”
No to both questions.
-the FAA doesn’t govern what can/cannot be photographed.
-In theory, the homeowner has no so-called “air rights.” (The concept of “air rights” does exist, but is not related to aviation, rather relating to property views, sunlight blockage, etc, frequently found in large cities such as NYC or LA)
What the homeowner does have, is a potential claim of invasion of privacy. No different than a Peeping Tom putting a ladder on a fence and using the ladder as a photographic elevation, the aircraft’s violation of law is governed by state or local law, not federal law. Privacy laws vary from state to state. For example, in the State of Georgia, taking upskirt photos was legal until late 2017.
Each state has its own definition of “invasion of privacy” and there are no federal laws, and no FAA position on this topic. State laws tend to lean towards anything being under cover, or behind a fence as “private.” However, many state laws do not consider areas over a fence as being “private.” An example might be a two story home with a deck on the upper floor that over looks the neighbors yard. Several precedents have demonstrated that this is an “open view” and not an area that holds an “expectation of privacy.”
In most states, while privacy is a concern, any attempt to regulate “air rights of privacy” would be likely considered preemptive and the FAA has made it clear in recent months they are the controlling agency of aerial operations. The question becomes “at what altitude does the FAA relinquish ownership of the air and the property owner takes possession? Three feet? Ten feet? Eighty three feet? Or is it the theoretical 1” above the blades of grass?
The concept of privacy is not federal; it is local, and no commercial UAS pilot engaged in common, authorized activity such as surveying, mapping, photographing, a client property should hold any concern for this topic at this time. As we evolve from law enforcement situations into privacy situations, it is entirely possible that federal law may change in favor of creating some sort of regulation relevant to aerial invasion of privacy. The FAA has done an exemplary work in providing states with a basic fact sheet that should advise municipalities on what they may/may not regulate with regard to UAS use.
WHAT ABOUT AVIGATION? (air easements)
In the recent spate of social media word battle, one or two individuals brought up their expertise in “avigations.” Avigation is an easement generated for purposes of keeping the peace in areas where aircraft may be landing or taking off. Issues ranging from fuel dispersion, noise abatement, dust/debris, fumes, vibration, etc may impact a homeowner’s quality of life. These issues bear no relevance to UAV operations. Avigations frequently fall under categories of “hazard” and “nuisance.” These sorts of issues frequently precede condemnation actions. Only an airport may possess an avigation easement.
“Control” easements also exist, requiring property owners to restrict the height of buildings, trees, power poles, etc yet again, these easements are of no concern to UAS pilots.
BUT, BUT, BUT…WHAT ABOUT UNITED STATES V CAUSBY?
“Doesn’t that judgement say that property owners own the air up to 83’ above their home? That’s what a lot of websites say…”
Causby’s decision primary does exactly the opposite of what some may feel it controls. Causby demonstrates that airspace is within the public domain, but did NOT determine the quantity of curtilage left to the land owner. Even in the instance that some court somewhere determines that 100% of non-built up property is sacrosanct, Causby provides jurisdiction by the FAA, not state nor local authority. This is likely the most misunderstood of all legal decisions relating to aviation with regards to UAS.
It is of significant note to realize that currently, the vast majority of precedent decisions relate to law enforcement use of manned aircraft for purposes of surveillance. As society becomes more aware of issues surrounding privacy, federal legislation may eventually be enacted which restricts FAA control of the NAS. To date, there are three relevant cases to non-law enforcement uses of UAS.
Singer v Newton relates to private use of UAS, and is a District Court decision, affecting only areas within the State of Massachusetts, although it will likely be referred to in many courts to come. City of Chicago v Hakim determined that the local police had failed to meet a burden of proof in arresting a holder of an RPC for “flying over people.” Chicago v Hakim also demonstrates why the FAA must remain the sole arbiter and controlling agency over the skies. Similarly, City of Los Angeles v Chappell determined that Los Angeles municipal laws (MCS 56.31) were a preemption of FAA authority over the skies, although the code is similarly worded to FAA regulations found in Part 107 of the Code of Federal Regulations. In LA v Chappell, Mr. Chappell’s drone had been confiscated and he was charged with violation of municipal ordinances. It’s interesting to note that the last line of the ordinance nullifies the entire ordinance if the aircraft and operator are operating under permissions of the FAA. In other words, a holder of a 107 RPC could not be found in violation unless violating other FAA operational or airspace requirements. The courts found in his favor and his aircraft was returned.
Eventually, complaints will come before the Courts, and we’ll likely see an invocation of some form of legal statement, and perhaps case law, setting a precedent. For now, what we have are listed above. Change, is inevitable.
Aside from the legal implications and responsibilities, it is this author’s opinion that UAS pilots have an obligation to the community and each other to raise awareness of activities. Awareness can be raised through common practices such as wearing blaze orange or yellow hazard vests, putting up sandwich boards, marking launch/recovery areas with hazard cones, placing advanced notification handbills on front doors or mailboxes in the area of operations, notifying local authorities of operations, having vehicles marked as a commercial UAS vehicle, having a visual observer in place to communicate with anyone questioning the operation, and more. I believe it is incumbent on the professionals engaged in this infant industry, to help the general public learn to understand and accept our activities and see that it can be professionally practiced, vs the poorly dressed, angry guy that shows up with a small drone, launches from a sidewalk, and screams at the neighborhood about “his right to fly the drone anywhere he damn well pleases.” Being positive, firm, and informational goes a long way to helping concerned individual understand what a pilot is photographing, and allay fears of invasion of privacy.
Angry bystanders, homeowners, or property owners typically become angry due to fear, uncertainty, or doubt (FUD). Generally, they are uninformed. Politely and firmly providing educational information in a calm manner will generally allay their concerns. There will always be “that one person” who won’t accept what they’re being told, and situations may be escalated. Try to keep yourself calm. If authorities are summoned, have your relevant documentation available such as any waivers, RPC, etc. A recording of the altercation may be valuable.
Remember that the municipality *may* have determined authority over launch/recovery areas, so ensure public areas are always used for launch/recovery, or that the landowner has provided (preferably written) permission to launch/recover from their property.
At the end of the day, it is the responsibility of the UAS pilot to be familiar with all local and State regulations regarding UAS flight, and aware of what is and is not permissible. After all, being fully informed is but one facet of being a professional, wouldn’t you agree?
Relevant reading material:
California v. Ciraolo (1986)
Florida v. Riley (1989)
Los Angeles vs Chappell (2016/Chappell prevailed)
City of Chicago v Hakim (2017/Hakim prevailed)
Singer v Newton (2017/Singer prevailed)