It seems lately that any articles or videos I put out are all about how horrible this certain bill is, or what a terrible ordnance that one may be. Maybe it’s time to thank some legislators when they get one right (mostly).
Ohio Governor Mike DeWine signed one such law on January 8th. As such, some congratulations are due to Representative Bernie Willis and his Cosponsors.
But there are somethings Ohio drone owners need to be prepared for with this bill. Not with the language itself, but with how it may be interpreted in the press and by police and private security. The issue comes into play with the press, local law enforcement, and security at the designated “critical infrastructure” (CI) mentioned in the bill. And to be fair, if press articles when into the minutiae of every bill they write about, no one would read their articles. And of course most of you know my stance on Law Enforcement. LEOs have a ton of things to worry about, and expecting them to memorize the details of every new law sent to them if patently unfair.
That’s why it’s up to each and every drone pilot and recreational flyer to understand those laws themselves. Because in just about every encounter with a non-drone person, be it civilian or law enforcement, we are very likely the most educated person in that encounter. So educate yourself, and be prepared to explain the rules to folks you encounter. And be prepared to explain them in a civilized and respectful manner. If you’re dealing with private security around some of the listed CI, they may not care what you have to say. So you’ll likely need to decided if it’s worth it to sit and argue. That would definitely be a judgment call.
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As my Southern Momma used to say, “You get more flies with honey than you do with vinegar.” Of course either way you end up with flies, so I don’t quite understand that Southern colloquialism. But I digress…
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So that misunderstanding by LEOs and security, along with some of the vague overly simplified articles you’ll see, has prompted me to write this quick article. And that was prompted by a note I received from an Ohio drone pilot. Thanks Jason.
So let’s dive into the language and what it really means. And please do not take any of this as legal advice. I am not lawyer, nor do I play one on TV. And I haven’t stayed at a Holiday Inn Express in ages.
Ohio House Bill 77 was introduced to a number of existing Ohio Revised Codes. It deals with everything from UAS regulations to how abandoned and derelict manned aircraft can be sold or disposed of. We’ll obviously just talk about the UAS sections. Although the definitions in the manned aircraft parts would technically include UAS, I seriously doubt anyone will ever need to worry about abandoned or derelict drones.
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We’ll start in Sec. 4561.51. (A) (5). It states that no person may,”Operate an unmanned aerial vehicle, as defined in section 4561.50 of the Revised Code, on the land or water or in the air space over this state in a manner that knowingly endangers any person or property or purposely disregards the rights or safety of others.” Yes, the “in the air space” section is of questionable preemption status, but I doubt the FAA would have any issues with this.
The key words on this section include, “in a manner that knowingly endangers any person or property or purposely disregards the rights or safety of others.” And one possible issue here is the inclusion of the word “rights”. Privacy is a right, but not from the air. There are many cases where the Supreme Court of The United States (SCOTUS) has ruled that thanks to the “open field” doctrine, there is no “reasonable expectation of privacy” from anything visible from the airspace. Those rulings are from manned aircraft, so we don’t have any drone specific rulings yet. So for this, you’ll likely have to make your own mind up.
But the “knowingly endangers” and “purposely disregards” language is pretty good language.
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Next sections we’ll talk about are the definitions of CI found in Section 4561.50. That includes numerous facilities of questionable designation, but until the Federal Government actually develops the CI list in Section 2209 they were told to do back in 2016, states will continue to do this. But don’t worry, even in these sections, drone operators who follow this law will be fine. More on that in a bit.
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Section 4652.51(A)(1) states, “Except as provided in division (A)(2) of this section, no person shall operate an unmanned aerial vehicle in the air space over this state if the operation is prohibited by either federal law or federal regulations, including any federal aviation administration regulations.” And division (A)(2) mentions waivers. So that is a nice little carveout we don’t see often. Many of us have OOP and/or BVLOS waivers. If (A)(2) wasn’t there, we could be in violation of 4561.51. Or at least perceived to be by someone not up to date on UAS regulations.
4561.51 goes on to describe situations and areas where you are not allowed to fly drones. And this is the section that we’re already seeing errors in the press. The story above states that House Bill 77 specifically forbids “Operating a drone to record or loiter over or near “critical infrastructure,” which can include railroads, T.V. or radio transmission facilities, courthouses…”. Which is true, if, as the law says, you are flying “with purpose to further another criminal offense” *Sec. 4561.51.(C)(1). Similar wording is repeated in Section 4561.51 (2). It mentions “to photograph, record, or loiter over or near a critical facility with purpose to destroy or tamper with the facility”. Again the intent of the flight and imagery capture of the flight is the part of the section that makes this action illegal. Not the flight itself.
There is no definition of “near” used in Section 4561.51(C)(1)&(2) either. So that could create some issues for drone pilots.
So misinterpretation of Section 4561.51 is where you’re likely to run into issues with private security forces, and possibly LEO contacts. And with the usual summary irregularities likely found in many articles about this new law, there will be a lot of confusion about this.
Which is why I suggest each and every drone pilot and operator in Ohio, or even if you’re planning on flying in Ohio, download and print out the bill found here. I’ve highlighted the sections that will help you in the event of an incident with authorities.
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No bill is ever perfect, and one issue with this one is found in Section 4561.52(B). Here is where each of you in Ohio will need to keep an eye on your local ordinances when it comes proposed UAS regulation. (B) states that Ohio political subdivision may adopt ordinances that regulate, “[t]he use and operation of an unmanned aerial vehicle that is operated exclusively for hobby or recreational purposes in or above a park or on other public property owned by the municipal corporation, township, park district, or county.” Anyone want to guess what part of that is a major issue? If you guessed “or above a park or on other public property” you are correct.
Any time a political subdivision adds the word “above” to any ordinance or regulation, it runs a very distinct possibility of being a federally preempted ordinance or regulation. The Federal Aviation Act of 1958 created the FAA and empowered the FAA to oversee and regulate safety in the airline industry and the use of American airspace by both military and civilian aircraft. No other political subdivision may control the National Airspace System (NAS), and telling when and where drones are allowed to fly does that very thing. Section 4561.52(B) is basically the state of Ohio giving political subdivision authority that neither of them possess.
The FAA addressed this in July of 2023 when the published the Updated Fact Sheet (2023) on State and Local Regulation of Unmanned Aircraft Systems (UAS). Along with that Fact Sheet, the FAA also established an official FAA email for the very question of federal preemption. You can find it at the bottom of the Fact Sheet, and click the link here: 9-AGC300-Preemptionquestions@faa.gov.
Should you find yourself in the position to work with your local legislators or council members, make sure you send them a link to the FAA’s fact sheet mentioned above, and if you’re emailing them, Cc that FAA email above. Including that FAA office in the initial conversation can go a long way to helping the legislator or council member that the FAA is here to help. And using that email could very easily prevent a future court case if a law is passed and cited that controls the NAS.
So hopefully this article will help those in Ohio. And maybe it will help in your own states as well. If you see something in your state legislature that could cause issues with drone use in your state, send them a link to Ohio House Bill 77 and show them what a (mostly) good bill looks like.
