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Legality of private drone use up in the air

By Tess Townsend

Publication: The Day

Published April 14. 2014 4:00AM   Updated April 14. 2014 10:12PM
Tim Cook/The Day
Photographer Tim Yakaitis operates his remote controlled aerial drone as he prepares to take video of a client's home in North Stonington with it.
Owners flying them for fun and profit as concerns addressed

Earlier this month, Tim Yakaitis stood by the fenced section of a house for sale on Wyassup Road in North Stonington before sunset. He squinted as he focused on the flickering screen of his remote control.

A spidery device with four arms, each balancing a plastic propeller, whirred as it hovered in the air, zooming to and from the house in a cyclical motion. Suspended from the center of the device was a GoPro camera. What the flying machine saw appeared on Yakaitis' control screen.

Filming property from the sky is one service the North Stonington resident now provides after founding his aerial photography and film company DroneOn six months ago. And business is good, he said, in this new niche market.

"This is definitely where I'm doing my business, towards the aerial part of it. I think drone usage is going to be huge. I think it's going to be the big business opportunity in the next three to five years," said Yakaitis, who also does terrestrial commercial photography.

Drone owners in southeastern Connecticut have used their contraptions for monitoring changes to shorelines, surveying fires, studying penguins in Antarctica, and commercial photography and deliveries.

But the legality of private drone use for profit is still hotly debated. And general drone use, even just as a hobby, raises concerns among some about safety and privacy.

Lawmakers are working to enact laws that keep pace with the development of drone technology and its domestic use. Thirty-five states have considered new drone bills and resolutions this year, of which four have enacted legislation, according to the National Conference of State Legislatures. Some of those states already had laws regarding drone use, and 16 states in total have drone laws, according to NCSL.

A bill introduced this year in the General Assembly would have established "criminal use of an unmanned aircraft" as a felony, punishable by up to 20 years imprisonment if a deadly weapon were attached to the drone, created standards for law enforcement use of drones and regulations for drone use in state airspace not subject to federal regulation.

The bill died in committee. The state still does not have its own laws governing drone use. Complicating matters, some supporters of commercial drone use maintain that federal regulations of domestic drone use already exist.

Challenging the FAA

Branford resident Peter Sachs, a private investigator with a law degree, said he monitors drone laws and blogs about the legal controversies surrounding drones.

As a volunteer firefighter, Sachs aided the Branford Fire Department in surveying a fire at Stony Creek Quarry Corp. in January. Branford Fire Chief Jack Ahern said the department went out to buy its own drone soon after. The department has used the drone once, to locate a puppy that had gotten trapped in a swamp, according to
NewHavenIndependent.org.

Purchasing a drone off the Internet is easy. Prices for starter bundles from DJI, the popular drone manufacturer out of China that Yakaitis and Sachs purchased from, range from $500 to close to $3,000.

The Federal Aviation Administration has a special process for law enforcement to get a certificate of authorization for drone use, but Ahern said his fire department didn't apply for one because the town attorney said the department didn't need it.

Sachs said he typically uses his drone recreationaly. He is entering the commercial sphere now with an aerial photography website, dronetographer.com.

He hopes that the website draws ire from the FAA so that he might have the opportunity to face the entity in court. He uses his legal background to uncover government wrongdoing, he said, and FAA claims that commercial drone users are violating regulations "happens to be … on my plate right now."

"I'm hoping, I'm begging them to give me a cease and desist," he said.

FAA spokesman Les Dorr said that using drones for commercial purposes is "not authorized by the FAA." He said use of drones for some other non-hobbyist purposes such as research is permissible for licensed aircraft pilots, provided they use FAA-approved devices, and only for purposes approved by the FAA on a case-by-case basis.

Sachs, Yakaitis and other advocates of commercial drone use counter that while there are FAA advisories against commercial drone use, no laws govern private individuals' deployment of the devices for financial gain. They say a recent decision by an administrative law judge backs them up.

Judge Patrick Geraghty, who sits on the National Transportation Safety Board, ruled March 6 that the FAA could not levy a $10,000 fine against Raphael Pirker of Australia for unsafe use of an aircraft, because no regulations give the FAA authority to regulate use of drones.

Pirker used a drone to film the University of Virginia campus, and the FAA asserts that he flew it too close to people and used it in other unsafe ways, said Dorr.

Yakaitis described the ruling as a "pretty huge step." He said that until that decision, he tried to operate "under the radar" by restricting his flights to the properties of his customers.

He went to Gampel Pavilion Tuesday, with no assignment from a client, to film University of Connecticut students celebrating the return of the men's basketball team following the team's NCAA championship win. He pitched the footage to media outlets.

"A month ago I never would have shot a job like that because it's just too high-profile," he said.

Criminal concerns

Dorr said that the FAA's reasoning for monitoring and attempting to prohibit commercial use by individuals is that using drones to make money is more risky than flying devices for fun.

"Let's say, if you were trying to deliver something and you have a customer who wants it in the next 30 minutes, depending on the process you have in place, it could be riskier than someone who is just going out to a field and flying," he said.

Drone injuries do happen. Last week, a triathlete in Australia was hospitalized after a drone owned by a photography company hit her in the head during the Endure Batvia Triathlon.

Yakaitis acknowledges that his pair of devices, each weighing roughly 2 pounds, could cause some damage, especially when he uses carbon fiber propellers instead of plastic. He said that not calibrating a drone before flying or not checking the battery can lead to crashes.

To prepare for possible mishaps, he purchased a $2 million insurance policy from Smith Insurance in Waterford to cover personal and property damage that might occur.

He does his best to follow any relevant guidelines, he said. For example, he said he adheres to the FAA's model aircraft operating standards from 1981, which the FAA says apply to hobbyist drone use. The guidelines state that users should not fly devices higher than 400 feet in the air, among other rules.

Drones also pose special concerns in the criminal sphere. Last week, the FBI arrested a man who allegedly plotted to convert a radio-controlled model airplane into a flying bomb and steer it into a federal building in Connecticut and into a school in another state, according to the Connecticut Post.

Then there is the issue of privacy. State Rep. Tim Bowles, D-Preston, said concern about privacy is one reason he co-sponsored the drone bill in Connecticut.

He gave as an example a hypothetical situation in which he's sitting in his house on his farm in Preston. A drone flies over to the window. Perhaps the drone is also carrying a package, adding anxiety about safety.

"All of the sudden this sort of unmanned aircraft is sort of buzzing over my head," he said. "You are dropping something without my consent, necessarily ... How do I determine whether that's a malignant or benign use?"

He said that "less than a handful" of his constituents have written to him about drones but that their e-mails have passionately conveyed concern about any domestic use of drones.

Defining 'drone'

Operators of the devices now commonly called drones aren't even sure if the term is applicable to what they use. Differences in definitions have raised questions of whether a remote-controlled aircraft such as a model airplane could be considered a drone.

Merriam-Webster's online dictionary says drones are "guided by remote control," while Dictionary.com says they "can navigate autonomously, without human control or beyond line of sight."

Don LeRoi, of Old Lyme, who has advised the National Oceanic and Atmospheric Administration on drone use for research purposes and flies his homemade device mostly as a hobby, uses the FAA's terminology. He calls his contraption an "unmanned aircraft system," or UAS.

LeRoi said he never uses drones for pay even when flying for research in airspace not regulated by the FAA, as he did when he went to Antarctica to photograph penguins from up high. He wouldn't fly for pay unless the FAA explicitly stated it was legal to do so, he said.

The FAA is now expecting the March 6 decision on the Pirker case to be suspended, allowing the FAA to continue calling and writing to commercial drone users, telling them to stop operations, according to Dorr. He said the FAA mailed an appeal to the NTSB on April 7.

But Brendan Schulman, who is representing Pirker, said that the appeal would only suspend the decision on Pirker's case.

"The decision was premised on the lack of regulation, so staying the decision does not create a regulation," he said.

Yakaitis said he will decide whether to alter his business when he learns how the NTSB is handling the appeal in the Pirker case. Sachs said that for him, it won't make a difference.

Bowles said he anticipates a drone legislation will reappear in the next session of the state legislature.

"I don't think we can ignore it. I think we have to pay attention to this emerging issue," he said.

t.townsend@theday.com

Johanna Somers contributed reporting to this story.

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