This information is provided for educational purposes only to facilitate a general understanding of the law or other regulatory I Spy with My Electric Eye: Drones, Schools and the Law matter. This information is neither an exhaustive treatment on the subject nor is this intended to substitute for the advice of an attorney or other professional advisor. Consult with your attorney or professional advisor to apply these principles to specific fact situations. All rights reserved. What is a drone? Unmanned aircraft systems (UAS) Unmanned aerial vehicles (UAV) Remotely piloted aircraft (RPA) Flying robots How might school districts use drones? Extracurricular activities Science/robotics classes Construction Facilities inspection School police department All rights reserved. 1
The overview District drones Federal law (FAA) State law (TPA) UIL and TEA guidance Liability concerns Other drones on district property Contract and policy considerations Fund coverage Federal law and regulations Drones = aircraft any contrivance invented, used, or designed to navigate, or fly in, the air Federal Aviation Administration (FAA) has authority FAA Modernization and Reform Act of 2012 FMRA requires FAA to establish plan to safely integrate UAS into national airspace New Operation and Certification of Small Unmanned Aircraft Systems = Summer 2016 Until then, we have existing rules & interim guidance All rights reserved. 2
On the horizon: proposed small UAS rules FAA s Notice of Proposed Rulemaking (NPRM) would create new category for small UAS (< 55 lbs) non-recreational purposes, including educational use would not have to meet current standards But for now... Drone categories under FMRA It depends on the drone owner and the nature of the use Each category has specific requirements In order to operate a drone lawfully, the use must meet the requirements of a category recognized by the FAA or an exemption. How do you drone? Current federal rules categorize UAS use into 3 distinct categories with separate requirements: Public use Civil use Model aircraft All rights reserved. 3
Public Unmanned Aircraft (PUA) Governmental entity operates aircraft for governmental purpose Law enforcement, national defense, research, etc. FAA: education is not a governmental function PUA for district law enforcement unit District police department could obtain a certificate of authorization (COA) through registry: Requires declaration from the state or state agency Exempt from more detailed civil use regulations DPS rules apply Civil UAS General commercial use All FAA regulations apply (pilot certification, airworthiness certificate, certificate of waiver or authorization) Owner may file petition for a Section 333 exemption Under interim policy, FAA will grant blanket COA for flights under 200 feet by UAS under 55 lbs See FAA Website for other Section 333 exemption conditions: www.faa.gov/uas All rights reserved. 4
Model aircraft Exempt from FAA regulations Must be registered Model aircraft = Capable of sustained flight in the atmosphere; Flown in the visual line of sight of the operator; and Flown for hobby or recreational purposes. Hobby/recreational use exemption Flown for hobby or recreational use only; Operated in accordance with community-based safety guidelines within programming of a nationwide organization; Under 55 lbs; Not interfere with manned aircraft; and Provide prior notice to airport within 5 miles. What is hobby or recreational use? Not specifically defined FAA interpretive guidance: a pursuit engaged in especially for relaxation a means of refreshment or diversion High School Football?? All rights reserved. 5
FAA and TEA guidance UIL weighs in on drones Subject to local discretion, drones may be used for practice purposes only In compliance with FAA rules Not in scrimmages or games Thanks, UIL Athletics Register your drone! FAA interim rules require hobby drone owners to register online: Applies to drones weighing between.55 and 55 lbs Owner = individual person Registration number must be clearly marked on drone Failure to register may result in criminal and civil penalties. www.faa.gov/licenses_certificates/aircr aft_certification/aircraft_registry/ua/ All rights reserved. 6
Fly safely FAA encourages hobby drone users to follow safety guidelines: Fly below 400 feet Do not fly directly over people or moving vehicle Keep the drone in operator s line of sight Avoid high winds or inclement weather Fly safely FAA Enforcement Authority FAA may sanction hobby model aircraft users who endanger the safety of the national airspace: Careless or reckless operation Failure to provide notice to air traffic controller; Compliance with temporary flight restrictions; Aircraft right-of-way violations. ; All rights reserved. 7
Texas Privacy Act, Gov t Code ch. 423 Restricts drones in certain areas DPS must adopt rules for law enforcement use of drones Prohibits using drone to take an image of a person or real property with intent to conduct surveillance However, exceptions allow taking photo or video in many locations... Texas Privacy Act exceptions Higher education Law enforcement Accident investigation Consent of owner of real property From a height of no more than 8 ft in a public place Public property or a person on that property Liability concerns Personal injury or property damage No immunity if harm involves use or operation of a motor vehicle Motor vehicle = self-propelled vehicle that can transport persons or property on highway All rights reserved. 8
Bottom line: school district drones New rules will likely increase exemptions for K-12 use of drones in Summer 2016 For now, avoid drones that do not meet FAA/TEA understanding of hobby/recreational use in schoolrelated activities Coaches: register those drones! Follow safety guidelines and any local flight restrictions Consider adopting a drone policy Policy considerations Complete ban on drones = risky due to FAA authority But District has authority to adopt rules for the safety and welfare of students, employees, and property. (TEC 37.102) District may not authorize recording of student without parental consent. Exceptions: school activity, media coverage, safety in certain areas (TEC 26.009) Consider timing of FAA regs Contract considerations Civil use Section 333 exemption Practical tip: Address lawful use and privacy in vendor contracts Require certificate of insurance Policy should require authorization and offer flexibility for district needs. All rights reserved. 9
Drones and TASB Risk Management Fund In December, an 18-month-old boy and his mother were watching a family friend fly a drone The drone was up in the air for about 60 seconds when the operator brought it down to land The drone clipped a tree and spun out of control, causing a propeller blade to slice the boy s eye in half. First party exposures Damage to district property Aircraft Payload (e.g., camera equipment) Ground equipment Other property (e.g., broken windows) Third party exposures Damage to other people s property Bodily injury Privacy rights claims (e.g. students) Property damage Property rights claims (e.g. trespass) All rights reserved. 10
Liability & coverage Districts have immunity unless an exception applies Authorized use is within the course & scope of employment Drone use by district employee not likely to meet motor vehicle exception Bottom line: RMF will typically defend against the claim and assert immunity. Fund Coverage: The fine print. General liability coverage The fund will pay those sums a Covered Person becomes legally obligated to pay as Damages arising out of an Occurrence that takes place during the Participation Period because of Bodily Injury, Property Damage, or Personal Injury. Part C. I. Exclusions The Fund will not provide coverage under Part C for Damages arising out the ownership, maintenance, operation, use, loading, or unloading of any aircraft owned or operated by or rented or loaned to any covered person. Change effective January 1, 2016 says Aircraft shall not include drones or Unmanned Aerial Vehicles. Drones are covered! Questions? Sarah Orman TASB Legal Services Senior Attorney Sarah.Orman@tasb.org 512.467.3610 800.580.5345 Tyler Wolkenhauer TASB Risk Management Services Claims Manager, Auto, Liability, Property Claims Tyler.Wolkenhauer@tasb.org 512.505.2891, ext. 2891 855.295.7853 All rights reserved. 11