Navigating FAA regulations and Tennessee law can be tricky, but drones are here to stay 

Keeping Up With the Drones: Innovations 2014

Keeping Up With the Drones: Innovations 2014
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Illustration: Taylor Callery

The email arrived out of the blue.

"With the CMA Music Festival coming up," it said, "I was wondering if Nashville Scene might be interested in using a Parrot AR Drone 2.0 to get aerial photos and video from the event."

We were, to say the least, interested.

"Hope you have fun and get some great shots!" came the reply, along with a link to the manufacturer's YouTube channel of instructional videos.

(To be clear, this offer did not come from the Country Music Association. And for what it's worth, this is the same make and model Martha Stewart extols in her recent Time op-ed, "Why I Love My Drone.")

A few days later, two boxes arrived at the Scene office. One contained a small four-rotor helicopter — aka a quadcopter, aka a drone, aka an unmanned aerial vehicle — that we nicknamed George Drones and which included a built-in camera. The other box contained an iPhone and a Samsung Galaxy tablet, either of which could be used as a controller and real-time video display.

That's all. Aside from a small technical booklet written entirely in Chinese, there were no instructions, no caveats, no legal or ethical guidance about flying a drone over crowded downtown streets during a major music festival and filming them from above, or about what to do — or not to do — with that footage.

Basically, we had been handed the controls and invited to fly. Whether that was a good or spectacularly bad idea was up to us to decide.

As it happened, a technical glitch rendered George Drones inoperable before we ever got it more than about 15 feet off the ground. But what if we had flown it over the country music-loving masses, shooting and posting videos to our website?

The rules governing the use of drones — or unmanned aerial systems, more broadly speaking — can be confusing even if you know to go looking for them. And while the FAA works on updating regulations at the federal level, expected to be ready some time in 2015, drones have only become more common, more readily available and more affordable. (The model loaned to the Scene can be purchased online for about $300.)

In the meantime, states are passing their own drone-specific laws as they attempt to grapple with a future that is not quite here but fast approaching. Tennessee is no exception, with three new laws on the books in the past two years, and recent developments in and around Nashville highlight how quickly we are reaching a tipping point.

Descending slowly from a height of about 60 feet, the small black prototype looks like a cross between a robotic flying upside-down spider crab and the Imperial probe droid that patrols the ice planet Hoth in The Empire Strikes Back. Its six propellers, spinning somewhere in the neighborhood of 7,000-10,000 times per minute, emit a loud, high-pitched wail. At times that sounds like a balled-up hive of angry insects. At others, it sounds almost symphonic, like the triumphant major chord that sounds when the THX logo flashes onscreen.

As the UAV approaches the ground, a technician holds up a controller to show off the fact that he's not using it. After flying along a pre-programmed zigzag over the field and back, the custom-designed hand-built drone, roughly the size of a bushel basket with a tinted dome fitted over its flight control circuitry, has landed itself about six feet from where it took off — a spot in the grass marked by a wallet belonging to Beyond Right Now Technologies co-founder Casey York.

It's a hot August morning, and the Beyond Right Now Technologies team is out test-flying in order to capture polyspectral video in regular passes, for the purposes of teaching its software how to recognize animals. At one point, York runs around the field like a scrambling quarterback on a broken play, trying to get himself in the onboard camera's field of view. Later, the property owner sends his dog chasing after a tennis ball for the same reason. Today, the drone is learning to spot and identify "bipeds and quadripeds," York explains. He and his business partner, Jake Gish, are all smiles as they greet visitors, including mentors from the tech business accelerator JumpStart Foundry.

On several of the flights, a large hawk circles above the drone as it passes over the field. York says there's a theory that the sound of the rotors is similar enough to the sound of bees that it triggers the instincts of some predatory birds.

This vehicle is part of a system called SkySecure. Several weeks before the video test-flights, York and fellow co-founder Gish are sitting in a back room at the Nashville Entrepreneur Center talking about their company, which is part of JumpStart's 2014 summer cohort. York describes SkySecure as "a UAV that patrols agricultural properties much as a Roomba would: bouncing around, except you've predefined its perimeter on Google Maps." When the drone senses a "warm-blooded incursion," the system sends an alert to your phone.

Then, York explains, "You can either ignore it, saying it's the neighbor's dog, or hit 'engage,' and it'll circle and just give you GPS data so you can go, uh, sh ... " — he stops himself mid-sentence — "y'know, eat the deer or whatever it is." Or, he adds, "You can just turn on the buzzer. ... You can scare it off."

If the "warm-blooded incursion" happens to be human, you might not even need the buzzer.

"We actually feel like the whirr of the props is gonna be like the new ADT sign, you know?" York says. "You won't have to see the drone. You hear that, you know it's got an HD camera that can see you, and you can't see it."

About a month after the Scene's drone operation was called off due to technical difficulties, Robert Hartline stood on Rolling Mill Hill, just south of downtown. Like many in the crowd, he was there with his young son to watch the Fourth of July fireworks — and the location, on elevated ground and close to the river, was pretty much ideal.

But he also had an even better vantage point available to him. Up at the same height as the fireworks themselves, Hartline's DJI Phantom Vision+ was flying and recording the parti-colored explosions in high-definition video as it flew high above the Cumberland River.

Later that night, Hartline uploaded his drone footage to YouTube. By the end of the holiday weekend, the 17-minute clip had been viewed more than 30,000 times, thanks in large part to enthusiastic posts on social media.

But not everyone was thrilled.

Julie Adams, a professor of computer science and computer engineering at Vanderbilt University, was one of many in Nashville and beyond who saw Hartline's video and was immediately concerned. Adams studies and works with unmanned aerial systems — she collaborated with anthropology professor Steve Wernke on a mapping drone for architectural sites (see "Little Wing," Aug. 6, 2012), and even has her students build a UAV themselves out of readily available parts.

"He is very close to the bridge and flies directly over it with all the people on it," Adams tells the Scene, characterizing the flight as "dangerous." She also notes that Hartline's drone is "pretty high up and very possibly in flight paths for BNA and the smaller airport on the other side of town."

What if a drone crashed? What if fireworks struck a drone and sent broken parts flying, or the fireworks were redirected downward toward spectators, exploding in unplanned ways? What if a drone was filming people who hadn't consented to be filmed?

Hartline, whose enthusiasm for technology sometimes lends him the air of an excitable math teacher, says he was operating within federal guidelines. For starters, he says, he wasn't flying for a commercial purpose; he says it was an afterthought to include the URL for Hytch, a carpooling app he hopes to have ready by this fall, at the beginning of the video.

"If I wanted to promote something, I could have promoted something," he says, adding that he hasn't monetized the video on YouTube. (A Hytch logo appears on the channel where the video is posted.)

Hartline also insists he was able to see the drone the entire time he was flying it, thereby meeting the FAA's "line of sight" requirement for hobbyists. If his drone had lost contact with the controller, he says, it would have flown itself back to the location it took off from, using the built-in autoland function.

"If I had gotten hit by fireworks, it would have fallen in the river," Hartline says matter-of-factly. "But you know, there's always an ounce of fear. If you were to type in 'drone death' in Google, you're going to see military deaths. You're not going to see civilians killed by quadcopters.

"Will it probably happen?" he adds. "Absolutely."

Hartline wasn't the only person to film Fourth of July fireworks with a drone — a number of videos were posted from around the country, many of them also garnering tens of thousands of views. He also wasn't the first person to film fireworks with a drone in Nashville. Several members of the Nashville Sounds pitching staff have been flying drones at Greer Stadium in their downtime. In June, team publicist Alex Wassel posted a video of a postgame fireworks show, filmed from a quadcopter flying high above the field, to his own YouTube channel.

So is it OK to fly a drone into a fireworks show? Or at all? That depends, and it depends on whom you ask.

When asked about Hartline's into-the-fireworks flight, Metro police spokeswoman Kristin Mumford referred the Scene directly to the Federal Aviation Administration. Spokeswoman Kathleen Bergen sent a written statement in response. "The FAA is looking into multiple incidents in which unmanned aircraft flew into fireworks displays," it says, "to determine if there was any violation of federal regulations or airspace restrictions."

(Although The Tennessean first reported that the FAA was investigating Hartline, he says no one from the agency has contacted him.)

"Flying model aircraft for hobby or recreational reasons does not require FAA approval," the official statement continues, "but hobbyists must operate according to criteria under the law."

But the law is not entirely clear, and in any case, it is not well understood.

When a drone was spotted flying over La Vergne, Tenn., in January, La Vergne police Sgt. Brent Hatcher told WSMV: "With the technology of remote-controlled apparatus, helicopters, planes and the things that the people can buy at a hobby store, it's hard to say whether or not it would be considered illegal. Now, the actions of what the person is doing while he's using it is the thing in question."

In June, the FAA posted a notice to its website titled "What Can I Do With My Model Aircraft?" and included a graphic laying out various dos and don'ts. ("Do contact the airport or control tower when flying within 5 miles of the airport," ... "Don't fly model aircraft for payment or commercial purposes.") The post reiterates standards already laid out in the FAA Modernization and Reform Act of 2012, and as Vanderbilt professor Adams notes, rules for remote-controlled model aircraft have been in place for years.

To say there is a lot of gray area between the dos and the don'ts is akin to saying there are some differences of opinion about Miley Cyrus' rapping.

In any event, Hartline is not impressed with the pace and tenor of federal regulations. "The FAA put out a cartoon, and it's a perfect example of what's broken," he says. "They don't even mention height. ... They just don't have anything out there."

But ambiguity is not permission, as Adams sees it.

"Technically speaking, if you do not have a certificate of authorization from the FAA, you really are not permitted to fly," she says, "although there's lots of people who are making interpretations that lead them to believe that they can."

James Mackler is a former Army pilot who heads up the drone law unit at Bone McAllester Norton. He has also been approved for appointment as deputy staff judge advocate for the 118th Wing of the Air National Guard in Nashville. Mackler tends to be more cautious in his reading of the rules too.

"It is extremely confusing, and a lot of people get this wrong," he tells the Scene. "Either they don't understand it, or they're trying to ignore it. With almost no exceptions, there is no permitted commercial use of unmanned aerial systems in the United States."

To get a sense of how difficult it is to operate a commercial drone legally, consider this section of the FAA statement released after the spate of July 4 fireworks-related flights: "A commercial flight requires a certified aircraft, a licensed pilot and operating approval. To date, two operations have met these criteria, and authorization was limited to the Arctic." Just two.

But even if the FAA greenlighted drone use across the board tomorrow, it would already be heavily limited in Tennessee.

For starters, there's the "Freedom From Unwarranted Surveillance Act," which passed in 2013. It was a direct response to the Metro Nashville Police Department's acquisition of two Draganflyer X-6 drones. The law forbids police from gathering "evidence or other information" with a drone unless they obtain a warrant. Other exceptions include situations in which the secretary of Homeland Security has determined there is "credible evidence" of a "high risk of a terrorist attack," cases where "swift action is needed to prevent imminent danger to life," and searches for fugitives or missing persons.

The law is moot for the moment, as MNPD spokeswoman Mumford tells the Scene the drones are not yet in service.

"The helicopters were last flown in 2011 during a training exercise," Mumford says. "They have not been flown since." The reason for the grounding: "A deployment strategy/usage plan has not yet been approved," Mumford says, adding, "We don't have a timeframe for approval."

Oddly enough, the second Tennessee law addressing drone use was inspired by PETA.

SB 1777/HB 1952, passed in March 2014, makes it illegal to capture images of a hunter or fisherman engaged in legal hunting or fishing activities using a drone. In essence, an organization was urging its members to film illegal hunting activity using drones — specifically the Air Angels Drone, available for $324.99 in the "Home, Personal, Beauty" section of PETA's website — so the Tennessee legislature made it illegal to use a drone to film legal hunting and fishing activity.

The most expansive law went into effect on July 1, 2014 — just three days before Hartline flew his drone into the Nashville fireworks display. Public Chapter No. 876 amends titles 29 and 39 of the Tennessee code, making it a crime to use an unmanned aerial system to capture an image except under 18 specific circumstances.

"The Tennessee law doesn't say it's OK to use drones for the following things," Mackler explains. "It really says it's illegal to use drones except for the following things. ... It basically starts with a blanket ban on them and then says there are exceptions."

Those exceptions include scholarly research, surveying of utilities, authorized military use, licensed real estate, search and rescue, hazardous materials spill management and fire suppression. Of course, many of the allowed commercial uses are currently prohibited under FAA regulations, which carry civil penalties. Drone uses that are banned under Tennessee law could incur criminal charges (Class B or C misdemeanor, depending on the offense).

And as federal regulations evolve, the upshot for local industry might be this: "If you've got this great new business idea, but the legislature didn't think of it," Mackler says, "you may not be able to do it."

Farmspace Systems, a client of Mackler's based in Alamo, Tenn., did what it could to leave a potential niche protected. A company that hopes to use UAVs to fly over crops and measure water and chlorophyll levels for precision agriculture systems, among other potential applications, Farmspace "worked with the Tennessee Farm Bureau" on helping to craft that bill, spokesman Mark Brown tells the Scene via email. "We functioned more as a consultant than as a direct lobbyist, primarily focusing on the language of the legislation," he adds.

It would appear that under the new Tennessee law, Hartline's fireworks flight would be allowed via the "public real property" exception. For his part, Mackler says, "If I fly over Broadway and record everyone walking on the street, for whatever reason, I think there's a good argument to be made that's a crime." In any case, there's also the simple fact that people are flying drones no matter what the regulations say, and there are more drones than FAA inspectors.

"I would never tell a client to violate FAA regulations," Mackler says, "but if someone came to me and said the FAA was trying to enforce those regulations, I would work very hard to defend them by arguing that those regulations are not enforceable. That particular person may or may not have violated the law, or the regulation, but there's probably an argument to be made either way."

Mumford says that, to date, MNPD has not investigated anyone for violations of the new law.

However they end up being regulated, drones appear to be here to stay. As with most things in America that are here to stay, that means they'll be integrated into the economy one way or another.

"Photography, video from a drone is probably 10 percent of its usefulness," Hartline says. Other applications might include Amazon's proposed Prime Air delivery drones for small packages. Or the pizza-delivering drone recently tested (successfully, but not without controversy) in Mumbai.

Hartline imagines "an upside-down umbrella that accepts deliveries" on rooftops, and designated drone routes over railroad tracks, where any downed craft would in theory be crushed, harmlessly, by a freight train.

"[A drone] crashing on the interstate's a problem — or a major road, a power line," Hartline concedes. "There's gonna be challenges ... but it's the same challenges people had with the car."

"UAVs are going to be huge," Vanderbilt's Adams says. "The market is astounding for manufacturers. The applications are large."

But for now, the emphasis is on "going to be." As with any new technology, questions of safety, reliability and responsibility persist. A period of public comment could push updates to FAA regulations into 2017 or beyond. So the world where app-summoned drones drop hot chicken on your balcony is still, one might say, beyond right now.

As for the prospect of alt-weekly staffers flying currently available consumer-grade drones over musical festivals and shooting video? Likely we would have been in violation of the Federal Aviation Administration's ban on commercial use. Had we flown after July 1 of this year, we likely would have been in violation of Tennessee law, as well.

"So yeah," Adams says, "I'm glad you guys didn't fly."

Email editor@nashvillescene.com.

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