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July 14, 2017 | Blog Post| New Laws passed in Florida and Oregon add to Varying State Drone Regulations

Florida and Oregon have both recently changed their Unmanned Aircraft Systems “UAS” (or “drone”) regulations, joining the vast majority of states looking to protect their residents through the use of their police power. 

Florida’s Unmanned Aircraft Systems Act, seeking to control and limit the use of UAS, was approved by the Governor of Florida on June 23, 2017 and took effect July 1, 2017. 

The Act strikes a balance, acknowledging federal control over UAS and airspace while permitting local government to continue to enact and enforce laws not specifically related to UAS but that could involve a UAS: Laws concerning nuisances, voyeurism, harassment, reckless endangerment, and property damage.  The Act also prohibits local governments from enacting laws relating to the design, manufacture, testing, maintenance, licensing, registration, certification, or operation of UAS. 

The Florida UAS Act also defines critical infrastructure and prohibits the use of UAS over or around critical infrastructure except in limited situations.  An entity seeking to restrict or limit UAS over or around their facilities must apply to the FAA for an infrastructure designation. 

Critical infrastructure includes the following:

  • an electrical-power generation or transmission facility substation switching station, or electrical control center,
  • a chemical- or rubber-manufacturing or storage facility,
  • a mining facility,
  • a natural-gas or compressed-gas compressor station, storage facility, or natural-gas or compressed-gas pipeline,
  • a liquid natural-gas or propane-gas terminal or storage facility with a capacity of 4,000 gallons or more,
  • any portion of an aboveground oil or gas pipeline, and
  • a wireless-communications facility, including the tower, antennae, support structures, and all associated ground-based equipment. 

It is now a second degree misdemeanor, punishable with fines and imprisonment not exceeding 60 days to knowingly or willfully operate a UAS over a critical infrastructure or to come in contact with or come close enough to interfere with it.  The same becomes a first degree misdemeanor for a second offense, which is punishable by up to one year of imprisonment. 

Exceptions to the new regulation include when the operation is by a federal, state, or other governmental entity or on behalf of such entities or when the operation is by law enforcement otherwise complying with the Florida law entitled “Freedom from Unwarranted Surveillance Act.”  The Act also exempts operations by the owner, operator, or occupant of the critical infrastructure facility or a person with the consent of the owner, operator, or occupant.  The final exception is for commercial operations otherwise in compliance with FAA rules for commercial UAS operations.

The critical-infrastructure portion of the Florida UAS Act will automatically terminate 60 days after the date on which a process pursuant to Section 2209 of the FAA Extension, Safety and Security Act of 2016 becomes effective.  This Section of the FAA Extension Act requires the development of a process to allow facility applicants to prohibit or restrict the operation of UAS in close proximity to a fixed site facility, which is limited to critical infrastructure, such as energy production, transmission, and distribution facilities and equipment, oil refineries and chemical facilities, amusement parks, and other locations that warrant such restrictions.  There is not currently a timeframe for this process to become effective.

The Florida UAS legislation includes two other provisions.  First, it prohibits the possession or operation of a UAS with an attached weapon, firearm, explosive, destructive device, or ammunition.  While the prohibition of possession or operation of a UAS with a weapon is explicit, the statute does not include a punishment for its violation.  Second, the Act adds an exception to the Freedom from Unwarranted Surveillance Act for communications service providers or their contractors for routing, siting, installation, maintenance, or inspection of facilities used to provide communications services. 

Florida’s Freedom from Unwarranted Surveillance Act, which was originally passed in 2013 and has gone through a series of amendments, prohibits a person, state agency, political subdivision, or law enforcement agency to surveil people or privately owned property without consent.  The law had previously included a number of exceptions including terrorism, law-enforcement agencies with warrants or a reasonable suspicion involving an immediate need to act to prevent imminent danger to life or serious damage to property.  The law also included a number of civilian exceptions for licensed professionals, appraisers, certain photographic necessities of electric, water, or natural gas utilities, aerial mapping, cargo delivery, and for imaging necessary for the safe operation or navigation of a drone legally being used.

Florida’s new act is certainly not alone in regulating UAS, although it is quite deferential to the FAA. 

Oregon has also passed an emergency law relating to UAS.  Since 2013 Oregon has had a criminal statute relating to UAS, which makes it a Class A misdemeanor to intentionally, knowingly, or recklessly operate a UAS that is capable of firing a bullet or projectile or otherwise causes the system to function as a dangerous weapon.  As approved on June 29, 2017, this provision has been greatly expanded with increased penalties.  Now, while it is still a Class A misdemeanor to operate a UAS capable of firing a projectile or being used as a weapon, it is a Class C felony to cause the UAS to fire a bullet or projectile or function as a dangerous weapon, and it is a Class B felony to do those things with the result of serious physical injury to another person.

The new law has an exception to the above penalties for a person who meets all of the following criteria:

  • uses UAS to discharge a nonlethal projectile for purposes other than to injure or kill persons or animals,
  • uses UAS for non-recreational purposes authorized by the FAA,
  • uses UAS with notice to the Oregon Department or Aviation and the State Police to obtain a permit or license,
  • uses UAS with notice to the public of the time and location of intended use of the UAS, and
  • obtains and maintains a liability insurance policy in an amount not less than $1 million that covers injury resulting from its use.   

However, for the exception to apply, the person must not be using the UAS for purposes of crowd management.  Additionally, the notice requirements do not apply to some universities and educational institutions.

Oregon has also made it a crime to operate a UAS over privately owned land in a manner that intentionally, knowingly, or recklessly harasses or annoys the owner or occupant, except when performed by a law enforcement agency otherwise complying with Oregon law.  A person violating this section will receive a Class B violation for the first offense, a Class A violation for a second offense, and a Class B misdemeanor for two or more convictions.  Also a person with two or more convictions can be prevented from possessing a UAS as a condition of probation.

This new law is in addition to the already substantial body of Oregon statutes related to UAS.  Among other statutes, Oregon provides civil penalties for interfering with a lawfully operated UAS.  Oregon also gives a civil cause of action to real property owners against UAS operators for low level flights over property in certain circumstances, which could lead to treble damages for injury to a person or property and attorneys’ fees in cases under $10,000.00.

More and more states are adopting individual rules for UAS operations within their borders. These rules vary from state to state.  Congress wanted to take up the issue and regulate UAS federally, but stakeholders including the Aircraft Owners and Pilots Association, Drone Manufacturers Alliance, the National Business Aviation Association, and the Commercial Drone Alliance, among others, are encouraging Congress to defer regulation of UAS pending the report and recommendations of the Drone Advisory Committee, the “DAC”.

The DAC is tasked with bringing stakeholders together to find consensus in regulating low-level drone use in the national airspace, considering the long-standing divisions between state and federal regulation and the plethora of divergent laws being passed by state and local governments related to low-level flights.  Their next meeting is scheduled for July 21, 2017.  The industry is hoping for its report and recommendations at some point in 2017. 

Laura Heft

An Associate at Butler Weihmuller Katz Craig LLP in Chicago, IL. Laura practices in our First-Party Coverage, Casualty Defense Litigation, Product Recall, and Aviation departments.

January 15, 2019 Blog PostThe Federal Aviation Authority Reauthorization Act of 2018 and Its Effect on Drones

The Federal Aviation Authority (“FAA”) Reauthorization Act of 2018 (the “Act”) was signed into law on October 5, 2018, by President Donald Trump. The Act was the first five-year FAA reauthorization since 1982.  Such reauthorizations provide the FAA with guaranteed funding for the next five years. The Act contains a plethora of supplementary provisions in addition to the provisions regarding the authorized funding of the FAA.  The Act can be broken down into five areas: (1) funding authorizations; (2) airline customer service; (3) aviation safety; (4) airports; and (5) unmanned aviation systems (“UAS”), also known as drones.

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December 14, 2018 Blog PostDrone Accident Excluded Under CGL Policy's Aircraft Exclusion

In the most recent edition of our book, Butler on Drones, we reported that ISO has issued specific exclusions for unmanned aircraft for inclusion into CGL policies, but it was an open question whether a CGL policy’s standard aircraft exclusion already excluded coverage for liability arising from the use of a drone. A California federal district court has now weighed in on the question – the first to do so, as far as we are aware. And we like the answer.

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January 18, 2018 Blog PostEighty Years After Earhart: Congress Moves to Motivate and Facilitate Women In Aviation

The aviation industry is in dire need of a future workforce. This industry is already suffering from a shortage of qualified individuals to work in all sectors of aviation. For instance, the Forbes article here states that the gap between supply and demand for aviation mechanics is projected to be at 9 percent by 2027.   

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January 05, 2018 Blog PostRecreational Drone Registration Requirement Has Returned

Back on December 21, 2015, the Federal Aviation Administration (FAA) required drone owners to register their drones if their drones weighed more than 0.55 pounds and less than 55 pounds (small drones). The registration was valid for three years.  Basically, anyone who possessed a drone for recreational use had to pay $5.00 to register their drone online with the FAA.  Following that requirement, over 820,000 drone owners had registered their drones. However, in May 2017, the D.C. Circuit Court of Appeals struck down that requirement, finding that the FAA violated its own rule found in the 2012 FAA Modernization and Reform Act that prohibits the FAA from promulgating any rules or regulations regarding model aircraft in Taylor v. Huerta, 856 F.2d 1089, 1090 (D.C. Cir. 2017). After the Taylor decision, the FAA created a form through which registrants could remove themselves from the registry list and request a refund of their $5.00 registration fee they had paid.

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January 05, 2018 Blog PostFAA Releases Drone Identification and Tracking Report that the FAA Will Consider in Drafting its Final Rule on In-Flight Drone Accountability

Law enforcement agencies want accountability when it comes to drone flights, especially when those flights are over people. Enabling a drone and its owner/operator to be quickly identified by law enforcement is necessary toward the expansion of the authorized use of drones to include flights over people and beyond the line of sight as well as the safe integration of drones in the national Airspace System. The Unmanned Aircraft Systems (UAS) Identification and Tracking Aviation Rulemaking Committee (ARC) chartered by the Federal Aviation Administration (FAA) submitted its report and recommendations to the FAA on technologies available to identify and track drones in flight and other associated issues.

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The Federal Aviation Administration’s (“FAA’s”) authority to institute airspace restrictions derives from 14 CFR § 99.7, “Special Security Instructions,” which is intended to address national security concerns from the Department of Defense and U.S. Federal security and intelligence agencies. 

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August 23, 2017 Blog Post"It's Not Old, It's A Classic!": Risk in Aging Aircraft with GARA Protecting Manufacturers

The General Aviation Revitalization Act of 1994 (“GARA”) was a byproduct of aging aircraft, rising costs, and tort liability in the United States.  Congress was concerned that aircraft manufacturers were being devastated by liability costs for accidents occurring long after the planes left the manufacturer.  These liability costs drove up the price for aircraft beyond what the market would bear, and general aviation experienced a sharp decline.  The General Aviation Manufacturers Association reports the total U.S.-manufactured general aviation airplane shipments went from a high of 17,811 in 1978 to a low of 929 in 1994.  As a result many manufacturers stopped making certain model aircraft, including Cessna which ceased production of all piston aircraft in 1986. 

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May 24, 2017 Blog PostThe D.C. Court of Appeals Just Scrapped the Drone Registry and May Have Also Turned Homeowners Insurers into Aviation Insurers

Model-aircraft hobbyist John Taylor didn’t want to register his model aircraft with the FAA pursuant to the newly created drone registry. So he took on the FAA, challenging new regulations aimed at unmanned aircraft registration and flight restrictions.

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April 13, 2017 Blog PostThe Answers to Some of Your Questions About What Airlines Can Do When a Flight is Overbooked and Someone Is Going to Have to Get Off of the Plane

Suddenly, the entire world is interested in learning about the laws governing airlines’ actions when a flight is overbooked. It isn’t every day that the entire world suddenly wants to learn all about something that you’ve spent years studying, so this post is for our clients who insure aviation risks, our clients who are frequent air travelers, and perhaps a few curious strangers who have no business with our law firm but have nonetheless been led here by their quest for answers. 

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April 05, 2017 Blog PostA Federal Court in Kentucky Shoots Down Drone Airspace Case

The Western District of Kentucky recently granted a motion to dismiss for lack of subject matter jurisdiction, determining that there is no federal question jurisdiction when a claim is brought for trespass to chattels and declaratory judgment where a drone is flown above an individual’s property. 

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