Turbulence ahead

Date:21 February 2018 Tags:, ,

Drone owners, we need to talk. There’s an elephant in the room and it’s called the law. To help navigate us through what’s likely to be a bumpy ride legal is Phillip Kent, lead advisor at Kent & Co, who recently published Drone Law.

You’re bombing along a packed Camps Bay beach in December, overhead the bathers and sunseekers, without a care in the world. The loss of a rotor creates enough of an imbalance to send your drone plummeting to Earth. Directly in the doomed machine’s path: an unsuspecting sunbather dozing in a deckchair. Kaboom.

And then things start to get really ugly.

As it turns out, you regularly put your film footage on a blog from which you derive an income through advertising revenue. The injured party suffers damages from having to go to hospital, pay to receive treatment for the head injury and miss an entire day of their holiday they paid for. Even if this hypothetical flight was not for remuneration, every other law pertaining to drone operations (Rules of the Air) was broken. Now you have yourself a big fat civil claim, with a strong possibility of a criminal case if the police got involved.

Your toy drone/model aeroplane/radio-controlled plane/quadcopter is an aircraft. Aircraft are regulated. End of story. The matter of whether drones should be regulated is not a discussion; it’s fact.

From July 2016, Part 101 of the Civil Aviation Regulation, 2011 (CAR) began the regulation of drones and drone operations. CAR is delegated legislation of the Civil Aviation Act 13 of 2009, meaning it’s not an industry best practice, departmental notice, personal opinion or pub-talk; it’s South African law and it applies to you.

However, it’s not that simple. To understand, you will need to deal with several questions.

What is an aircraft?

An aircraft is any machine that can derive support in the atmosphere from the reactions of the air. Notice the definition does not mention what it’s made of, or for, or from whom it is sold. It’s a blanket definition that includes drones.

What is a drone?

Drone is a colloquial term for an RPAS – a Remotely Piloted Aircraft System – and, for now, let’s just call it that. A drone is a set of configurable elements: the aircraft itself, the station that controls it, and the link between the two.

So is every remote piloted aircraft a drone?

No, not in the context of the applicability of the drone laws. Basically, if an aircraft that is remotely piloted is either a toy or a model aircraft, the regulations do not apply. But…

Legally, what is a toy aircraft?

The definition is quite clear on this:
“toy aircraft” means a product falling under the definition of aircraft (that) is designed or intended for use in play by children.
In South Africa, a child (or legal minor) is a person who has not attained the age of 18. So although my ex-wife may refer to me as a child, I have reached the age of majority and can therefore not claim the operation of a drone as being a toy, and neither can most of you.

Right, then what is a model aircraft?

First, to be a model aircraft, it must comply with very clear, specific statutory requirements. Secondly, and most likely the most limiting, is the aircraft’s use. To be considered a model, the aircraft must be used for only competition, sport or recreation. If an ounce of remuneration comes your way, you’ll have a tough time affiliating it solely with sports and recreation.

Ok. So in summary, how do I know if Part 101 regulates my remotely piloted aircraft?

Simply put, work on the assumption that your machine/product/object is a drone. Then work backwards:
• Are you a legal child (and we talking status, not capacity), or
• Are you not receiving any form of remuneration* whatsoever for the tasks to be performed and will be operating the product as a model at a model airfield?

If any of the above applies to you then congratulations, your machine is not regulated under Part 101. This does not mean it is unregulated: model aircraft are stringently regulated, and have been an exceptionally well-behaved community in the aviation sector. Speak to your local hobby shop or the South African Model Aircraft Association for further information.

*What counts as remuneration in this context?

“remuneration” when used in relation to aircraft operations, means defraying all or part of the costs of the operation whether in cash or in kind and whether or not it is commensurate with the value of the service.

My drone does fall under Part 101; what now?

Well it’s not all doom and gloom. Part 101 does make provision for private operation of a drone, and it is very lenient. In a nutshell, private operators need only comply with the “Rules of the Air” and a few trivial administrative requirements. The South African Drone Law Handbook separates the topics for ease of reference if you are a private operator and need a quick reference handbook. The Rules of the Air are a series of rules that define how an aircraft should be operated during flight, such as not flying over people or roads, not crashing, not crashing into people and other rules that could be replaced by the very allusive and uncommon concept of common sense.

I receive remuneration for operation of my drone. What do I need to do to comply?

You’ll need an RPAS Operator’s Certificate (ROC). That is by far the most costly and complex part. Your drone itself will need some paperwork and markings, and you’ll need an RPAS Pilot Licence (RPL) to fly it. Some misleading has occurred that has resulted in drone owners paying (hefty amounts in some parts of the country) for RPL, only to discover that this does not entitle them to operate a drone for remuneration and they still require an ROC. Personally, I would direct my efforts at acquiring an ROC since, like any operator of capital equipment, you can simply employ a freelance RPL to operate your drone when the need arises. An ROC is far more significant than an RPL. Speak to the Flight Operations Department at the South African Civil Aviation Authority (011 545 1000) for further information.

Let’s get real: who is actually going to catch me?

In all likeliness, no one is going to catch you. There is no secret police or network of aviation spies that snoop around looking for illegal drone operators. This is great news, right? Wrong. The reality is that, since legislation is in place, any injury to persons or damage to property that results from you operating a drone will leave you liable. To really drive this point home, the Civil Aviation Act creates what is known as statutory liability. In short, the Act states that any damages can be recovered from an aircraft owner without needing to prove negligence or otherwise. This has been so since the early 1900s.

Friendly reminder: most drones operate on LiPo batteries. These batteries excel at aggressive combustion at outrageous temperatures. I’ll leave you to put two and two together.

Additionally, operating in contravention of the Civil Aviation Act is an offence, meaning you can be prosecuted by the State with fines of up to R160 000 and imprisonment of 10 years.

THIS IS SO UNFAIR! Why are these over-the-top regulations in place?

Let’s start with the basics: Above you right now, invisible to the naked eye, is more than 100 years of aeronautical rule refinement. Manned aviation has tirelessly (and largely successfully) refined aviation conduct to the extent that it is one of the safest forms of transport available today. The Cape Town – Johannesburg air route is the twelfth-busiest passenger air route in the WORLD. Fatalities: zero.

In comes remotely piloted flight. From my perspective, there are two fundamental matters that make remotely piloted flight unique: operating an aircraft, for the first time in aviation history, is open to everyone. The barriers to entry are now so low; people that can afford a smartphone could afford a drone. Secondly, remotely piloting an aircraft has removed the first law of aviation safety: the law of self-preservation. There’s a saying: “Pilot messes up, pilot dies. Everyone else messes up, pilot dies.” Since the first flight, if a pilot behaved appropriately, the pilot survives. This (in most cases) induces a foundation of caution that is then built on from there through Safety Management Systems and proficiency-based training. Drones don’t have that. Other than legislation, there are no immediate repercussions to operating a drone irresponsibly.

It is a combination of this open access to drones and the loss of the law of self-preservation that makes the integration of remotely piloted and manned aircraft into the same airspace an extremely tedious task.

So stop taking it so personally: it’s not a matter of restricting drones so much, but respecting the sanctity of human life and acknowledging the risks associated with flight, and mitigating these risks accordingly through rules and regulations.

Is this how it will be forever?
Probably not. We have to try to write laws that are broad enough to encompass every situation (even those beyond our best imagination), yet are clear enough to achieve their goal. And these laws must be written for the future, since laws can’t be applied retrospectively. Honestly, we have no clue what tomorrow will look like, yet these laws have to be written to last decades. It’s an astoundingly difficult task, so to expect the first versions of the laws to be perfect is completely unreasonable. Yes, there are shortcomings here and there, but that doesn’t mean it must be ignored.

Point is, the Regulations are in their infancy, so there is always hope for improvement – which can only realistically come from stakeholders who are involved.