Can Public Safety UAS Pilots be Held Personally Liable? More Than We May Know. Part 4

In this last article, I will discuss what we drone pilots face and can do to minimize our liability exposure.

See the entire series, here.

First let’s start with the FAA’s definition of Pilot In Command (PIC). The PIC is and has the final authority and responsibility for the operation and safety of the flight, has been designated as pilot in command before or during the flight and holds the appropriate category, class, and type rating, if appropriate, for the flight being conducted.

Thus, as PIC, we are solely and ultimately responsible for everything that happens during the flight; the proverbial buck stops with us; period; end of story.

Let’s also look at the FAA’s definition of a recreational or fun flier. To be a legal hobbyist (yeah, I know), you must either obtain a remote pilot certificate or operate within the set of safety guidelines from a community-based organization (such as the Academy of Model Aeronautics – AMA). As of this date, you must also register with the FAA as a hobbyist and display your registration number on all model aircraft you fly (>.55 lbs.). The cost is $5.00 and is good for 3 years; you must re-register again thereafter. The difference is that we commercial flyers must register each aircraft with a unique tail number for each, whereas a hobbyist displays their registration number on each aircraft in their entire fleet even though on the FAA site confuses the registrant by stating Register Your Drone.

The AMA believes that registration makes sense at some level, but has pushed for a more reasonable threshold. While they address these issues, members will be legally required to comply with the FAA registration requirement. Here’s the registration link. There is also an ominous warning you receive as part of the registration process:

Can Public Safety Uas Pilots Be Held Personally Liable? More Than We May Know. Part 4

If you have troubles, call the FAA UA registration number (844-FLY-MY-UA, 844-359-6982 – hate when they use letters instead of numbers). They’re available between 8:00am and 4:00pm eastern time, daily. I actually called them this morning, Sunday April 7, 2019.

Why all this? Its because if the FAA happens to ramp check you (stop by and start asking questions about your flying escapades) and they find that you either do not possess or fly by a communitybased set of safety guidelines or find that you busted just one of those rules, they will no longer consider you a hobbyist and classify you as a commercial pilot subjecting you to the full force and effect of Part 107 mandates. Remember Mical? In other words: Flyer Beware!

Next, let’s discuss what I like to call the Phantom Notam 7/4319; the unpublished Temporary Flight Restrictions (TFRs).

This vaporous “blanket NOTAM” is a stadium or sporting TFR designed to cover major sporting events, to mitigate the risk of aerial terrorism, which Flight Service isn’t required to warn us about. If we mistakenly fly into one of these, we could be subject to criminal penalties. This is their solution to the volume and constantly changing schedules of sporting events.

What we need to know is that each TFR has a radius of 3 nautical miles and extends up to, and includes, 3,000 feet AGL. Qualifying locations and events are defined as any stadium or other sporting venue having a seating capacity of 30,000 of more people, where a regular or post season Major League Baseball, National Football League, or NCAA Division One football game is occurring or a NASCAR Cup, Indy Car, or Champ Series race is occurring, excluding qualifying and pre-race events. Thus we need to avoid flying over them (sans clearance to do so).

Further, the flight prohibition is in effect from one hour before the scheduled start until one hour after the end of a qualifying event. The NOTAM goes on to state that pilots who violate the procedures associated with the airspace may be “intercepted, detained, and interviewed by law enforcement or security personnel”. So what happens if the event is delayed or goes into overtime? I bet you know the answer. As PIC, we’re legally responsible to know if it has been delayed or gone into overtime. And remember, FSS won’t warn us if we call for a weather briefing. We are left to our own resources to determine if a TFR applies on an event-by-event basis. There have also been cases where the TFR has popped up in the wrong place so caution is advised.

Case in point. Minneapolis (Sat Apr 4 and Mon Apr 6, 2019) is hosting the NCAA basketball final four playoffs. Here are the current NOTAMS.

Can Public Safety Uas Pilots Be Held Personally Liable? More Than We May Know. Part 4

I guess the final four doesn’t fit the FAA’s NOTAM definition or does it?

The exceptions are: 1) The aircraft operation has been authorized by ATC for operational or safety purposes, including the authorization of flights specifically arriving at or departing from an airport designated by ATC using standard ATC procedures and routes, 2) The aircraft operation is being conducted for operational, safety, or security purposes supporting the qualifying event and is authorized by an airspace security waiver approved by the FAA, 3) The aircraft operation is enabling broadcast coverage for the broadcast rights holder for the qualifying event and is authorized by an airspace security waiver approved by the FAA and 4) The aircraft operation has been authorized by ATC for national security, homeland security, law enforcement, or air ambulance purposes.

How about insurance? Make sure you carefully read your policy, especially PAO / COA pilots, to determine if you are covered and if so, covered for what. Many COA pilots believe their respective employer, department or municipality’s policies cover them only to learn to late that it doesn’t. As a side note, make sure your drone, sUAV, unmanned insurance policy is separate and distinct from any manned aircraft operations and that those who are involved in applying for and paying for said coverage are informed as such. Reason? It relates to a company whose VP of Finance added a rider to cover unmanned aircraft to their existing manned aircraft policy. When the Chief Pilot received a premium bill far in excess of what he’d previously signed off on, he later found out that a reported accident involving a drone had now affected his entire fleet; manned and unmanned. His pristine manned aircraft rating was now tarnished due to a quad incident.

And last but not least, the trespass trap. The best advice I can pass along at this time is to talk to people, lots of them, State, Counties, Municipalities, Cities and Townships. Here in Minnesota, we have the MNDOT aeronautics division that requires a commercial operating license, insurance coverage requirements and aircraft registration for compliant commercial drone flying. Our DNR has a list of no fly zones and thus requires special permission to fly projects within their jurisdiction (I have not been successful in obtaining a clearance from them and have lost several jobs as a result – taking off and landing on property controlled by them).

As an example, we flew for a company who was creating a documentary on a local family found dead in their home, an ominous event. The local residences were on high alert. I took the time to knock on several doors to let them know who we were, why we were there and what we were going to do. They thanked us for doing so and spread the word to others in the neighborhood. Our flight was completed without incident and the neighborhood remained calm – well somewhat so.

I contacted a few local counties and municipalities to add credibility to this article and to determine what sort of drone ordinances they have in place. All stated they have nothing in place other than if the sheriff is called on site to investigate a reported nuisance.

Hudson, WI (across the river from where I live) did approve a drone ordinance stating “residents will have recourse against unwanted aerial visitors now that the Hudson Common Council has approved an ordinance regulating unlawful use of drones at its regular meeting Monday, Dec. 4. The ordinance prevents the use of a drone with the intent to photograph, record or observe someone in a place where they have a reasonable expectation (ambiguous right?) of privacy, like in their backyard or their residence. While this ordinance focuses on unlawful use of drones, Council Member Bill Alms said the council might want to have a future discussion on the use of drones as a whole. The use is regulated by the FAA, but whether the city should have further involvement would be a part of the discussion.”

May I suggest that as trespass issues surface that you share those experiences so we can all learn from each other. I’ll be happy to publish them and build a repository of related events.

I wish you safe flying and continued success.

Robert Zarracina
Flight Ventures Ltd.