“I said, ‘Well this sounds pretty interesting,’ ” Barton said. “I did some research and found out you can actually make a good amount of money drone piloting. That there are lots of different paths to get into. The more I looked into it the more I liked.”
He would soon find out that when it comes to understanding the legal landscape beneath drone piloting, things are not so clear cut, with discrepancies — and loopholes — between county, state and federal regulations around drones.
In October, Barton signed up for the class, beginning weeks of studying for the Federal Aviation Administration’s written test to receive a remote pilot certificate and a whole lot of practice flight time with a small drone.
“That’s basically the homework for the course, flying your drone,” he said. “To complete the course you have to have 50 hours by the end.”
Hours of backyard flying would suffice, Barton said, but his backyard is filled with trees. However, Sandymount Park, near his home in Finksburg, has ample open space, and so he called up Carroll County Recreation and Parks to see if there were any rules on using drones at Sandymount.
“They said I need a permit and 1 million-dollar insurance to fly,” Barton said.
Just starting out, that seemed a little daunting, but Barton began researching insurance and surrounding regulations. In the process, he noticed something strange regarding regulations and Maryland law. Maryland Code of Economic Development §14–301, which refers to drones as “unmanned aircraft systems” or “UAS,” states in subsection (b):
“Only the State may enact a law or take any other action to prohibit, restrict, or regulate the testing or operation of unmanned aircraft systems in the State.”
And subsection (c) goes on to clarify:
“(c) Subsection (b) of this section: preempts the authority of a county or municipality to prohibit, restrict, or regulate the testing or operation of unmanned aircraft systems; and supersedes any existing law or ordinance of a county or municipality that prohibits, restricts, or regulates the testing or operation of unmanned aircraft systems.”
And so Barton had to ask, which set of rules should a new drone pilot follow?
Drone Law
To answer that question requires parsing the state law and considering whether there is a broader context in which what seems to be a straight preemption of county authority to issue meaningful regulations on drones could have more wiggle room. That analysis isn’t exactly straightforward either, according to professor Michael Greenberger, the director of the University of Maryland Law School’s Center for Health and Homeland Security.“Technically speaking,” he said, “whatever Carroll County is doing is inconsistent on a macro basis with the Maryland statue.”
But on the other hand, the Carroll parks rules are very limited, Greenberger added. “It might be that in the real world there would never be a feeling of, oh, Carroll County is somehow doing something that’s inconsistent with what the state wants to do,” he said. “If it never in the real world bothers anybody, it might just go on without ever becoming a real legal problem.
That appears to be the the view of Carroll Recreation and Parks. Director Jeff Degitz said his department certainly considered the state law before creating drone rules for Carroll County parks but found the state law to be a bit unclear.
They decided to consider drones as just another type of legitimate use of county parks, and as with other legitimate uses, he believes his department can set rules on safety.
“We would regulate the use of our athletic fields or our parks for special events and do that through permitting,” Degitz said. “The goal is to do the same things for drones.”
And the idea behind permitting is not to deter people from flying drones, Degitz emphasized, but to keep people and wildlife safe in the parks; drones buzzing people boating on Piney Run Lake or harassing bald eagle nests are the types of things they would like to avoid.
“I don’t think anybody is looking to stick it to people who invest money in a drone, to restrict their ability to do things,” he said. “It’s really just focusing on safety and making sure we don’t have unintended consequences of that use.”
Original Intent
Degitz and Carroll County Recreation and Parks are not alone; Frederick and Montgomery counties also have regulations requiring permitting for flying drones in their park systems. Saint Mary’s County parks ban drones completely.But it’s really not clear if those county regulations are permissible under current state law and if there was any intent behind the legislation to accommodate such regulations aimed at public safety.
The Maryland Office of the Attorney General declined to comment for this story, and referred the Times to the state senator behind the law, Sen. Jim Rosapepe, D-District 21, who represents Prince George’s County and Annapolis.
Rosapepe was the primary sponsor of SB 370 in 2015, which was signed into law that year by Gov. Larry Hogan as the Unmanned Aircraft Systems Research, Development, Regulation, and Privacy Act of 2015.
Rosapepe also declined to comment for this story. His office did, however, send a link to video of Rosapape being interviewed on the topic of drones and his legislation in 2015, discussing issues of privacy and safety similar to the concerns voiced by Degitz.
“You wouldn’t want to be walking down the street and have a drone crash on your head,” Rosapepe said in the video.
But he also talked about the importance of balancing regulations that protect people and their privacy, while also not unnecessarily infringing on the development of a new technology.
“We need to get a focus on how do we enforce the current laws, how do we change the laws we need to make, how do we get out in front of this issue?” Rosapepe asked during the 2015 TV interview. “The legislature is passing legislation to have state agencies over the next year, do a study of the pluses, the minuses, the opportunities, the dangers, to come up with a safe policy. It’s like any other new technology.”
The Maryland Department of Commerce did, in fact, conduct such a study, publishing the “A Report Connected to the Unmanned Aircraft Systems Research, Development, Regulation and Privacy Act of 2015.? The report concluded given that any local or state drone laws cannot conflict with Federal Aviation Administration rules, “local ordinances restricting or prohibiting UAS should be discouraged.”
Keeping state drone regulations clear and uniform was part of the reasoning behind the 2015 law as Del. Haven Shoemaker, R-District 5, who represents Carroll, remembers it. He voted in favor of the law’s passage.
“As I recall from the discussion almost five years ago, it seemed to make sense to have some measure of statewide uniformity of the law relating to drones, instead of a county-by-county piecemeal approach,” Shoemaker said. “I am unaware of what actions that the state has taken over the last five years. If this has presented a problem for Carroll County specifically, that hasn’t been called to my attention.”
But the law was not without its detractors. The Maryland Association of Counties saw the law as preempting local governments from regulating drone activity and opposed SB 270, according to the association’s testimony at the time.
“This bill provides that only the State may enact a law to prohibit, restrict, or regulate unmanned aircraft (or ‘drones’), specifically and permanently preempting any county or municipality laws to do the same,” the testimony reads. “MACo believes this permanent preemption is premature in such a fast-changing area.”
And the law, and drones more generally, drew concern in Carroll County government both before and after it was passed.
In 2014, then-Commissioner Robin Frazier proposed a resolution that sought to ask the General Assembly to enact legislation against the use of such devices without probable cause or a warrant, but it failed to garner a majority when the Board of County Commissioners voted 2-2, with Shoemaker — at that time one of the five commissioners — absent.
When Rosapepe’s bill became law in 2015, then-Commissioner Richard Rothschild said it confirmed Frazier’s fears.
“I fully support the manufacturing and ownership of drones,” Rothschild told the Times in 2015. “However, there has to be regulations. I expect there to be very few regulations.”
Regulatory Balance
There are least some players, however, who think that’s the right way forward when it comes to drones. In an email, Tom McMahon — senior vice president of advocacy of government relations for the Association for Unmanned Vehicle Systems, a nonprofit advocacy group focused on drones and other autonomous or remotely controlled vehicles — supported the interpretation of the state law as preempting any local rules.“Local rules to regulate the airspace, such as those in Carroll County regarding drone operations, risk creating a complicated patchwork of laws that may erode, rather than enhance, safety,” he wrote. “Federal regulations already prohibit many of the activities that Carroll County seeks to prevent. For example, drone pilots are prohibited from operating over people and they must keep their drone within visual line of sight.”
FAA regulations also require pilots to register their drones, limit operations to 400 feet in altitude and prohibit flight in controlled airspace without advance permission, among other rules.
And FAA has ultimate authority over the national airspace. The City of Newton, Massachusetts tried crafting ordinances that prevented people from flying drones over private property without the owner’s permission. In 2017 a federal judge told the city they couldn’t do that, writing that “Congress has given the FAA the responsibility of regulating the use of airspace for aircraft navigation and to protect individuals and property on the ground.”
But it’s not clear what state entity, if any, is tasked with enforcing the supremacy of the state law with regards to drones.
Jonathan Dean, spokesman for the Maryland Department of Transportation and component Aviation Administration, would say only that, “The MDOT Maryland Aviation Administration is taking the opportunity to educate counties about the state law and to provide information and guidance related to unmanned aircraft systems.”
The Maryland Department of Commerce had not responded to questions regarding enforcement by 5 p.m. Wednesday.
What that means for communities that just want to keep parks orderly remains to be seen.
State Sen. Justin Ready, R-District 5, represents Carroll and also voted for SB 270 in 2015. But when asked about the state of the law and Carroll park regulations today, he said he’s not sure the 2015 law should be the final word.
“Having a state-level baseline sounds like a good idea, but there should be some flexibility or more direction,” he said. “Clearly there is more work that needs to be done.”
And events could force the issue, according to Greenberger, the Maryland law professor. All it would take is one drone colliding with a small aircraft somewhere in rural America, he said. “And that’s not a far-fetched possibility in the absence of regulation.”
That’s why, in addition to requiring permits to fly in 23 of Carroll County’s parks, Degitz said, his department’s rules prohibit drone flights in the five parks nearest Carroll County Regional Airport: Bennett Cerf Park, Landon C. Burns Park, the Carroll County Sports Complex, Hashawha Environmental Center and the Westminster Community Pond.
“We’ve seen people, pilots coming in over the community pond and they are waving out the window to people on the ground,” Degitz said. “It would not be unimaginable to have one of those things go up there and something bad could happen. We just don’t want that.”
But that, once again, is stepping into the FAA’s territory. FAA regulations require that drone pilots obtain permission before flying in controlled airspace, such as above many airports, but Carroll’s airport lacks a control tower and is not controlled airspace.
“If it ever came to the point that the state regulation was inconsistent with the FAA regulation,” Greenberger, said, “there would be a very strong argument that the federal FAA regulations would preempt state regulations.”
The FAA did not respond by 5 p.m. Wednesday to a request to clarify whether there was any regulation that strictly forbids drone flights in the airspace near municipal airports if that airspace is uncontrolled.
Testing The Test Case
But until there is some change in state law, or further FAA regulations that would preempt Maryland regulations, it’s not clear that Carroll County — or any other Maryland jurisdiction — could actually enforce any rules surrounding drones if they were challenged, according to Greenberger.What if Barton, for instance, were to write a letter to the county, or try flying and get an official “no” from Carroll County?
“I think he has a pretty strong argument that the Carroll County statue is violative of the terms of the state statute,” Greenberger said. “Technically speaking, he would have a case.”
Someone might well have a case, but it won’t be Barton. He’s decided he is more interested in launching his own drone business, Don’s Drones, than in being the test case for sorting out the jurisprudence of Maryland drone laws.
“Carroll County has some really good parks,” Barton said, “but I’ve just been going to Baltimore County, honestly.”
©2020 the Carroll County Times (Westminster, Md.). Distributed by Tribune Content Agency, LLC.
