On Saturday, a sharp eyed TV cameraman spotted a small UAS hovering over the University of Texas football stadium during the Longhorn’s home opener.  Unfortunately for the UAS operator, a University of Texas student, there were also sharp eyed policemen on the job who managed to track him down during the second half.  According to reports, the operator was detained by police, and his UAS was confiscated.

After the incident, various news outlets discussing the legality of the flight have taken the position that the question turns on whether the student was a commercial photographer or a hobbyist.  While the flight would be a violation of FAA regulations if it was done for a commercial purpose, it is almost certainly still illegal even if it was done solely for recreational purposes.

Under the FAA’s Interpretive Rule for Model Aircraft (http://www.faa.gov/uas/media/model_aircraft_spec_rule.pdf), hobbyists still have to abide by certain core safety requirements, one of which is to refrain from flying over highly populated areas.  Clearly, a packed stadium on game day is one of the most densely populated places in the country.  In addition, when Congress passed the FAA Modernization and Reform Act of 2012 , it clearly empowered the FAA Administrator to take action against hobbyists flying model aircraft when they “endanger the safety of the national airspace system.”  To accomplish this, the FAA has stated that it will apply the safety requirements of 14 C.F.R. Part 91, to hobbyists, including the prohibition on flying “in a careless or reckless manner so as to endanger the life or property of another.”  Finally, the FAA has also stated that hobbyists must comply with any Notice to Airmen (NOTAM) when they fly.  Currently NOTAM 9/5 151 prohibits all aircraft operations within three nautical miles and below 3000 feet of any “stadium having a seating capacity of 30,000 or more people where a . . . NCAA division one football game is occurring.”  Violation of this NOTAM carries potential criminal sanctions under 49 U.S.C. 46307.  Clearly, there is no shortage of avenues open to the FAA to attack the UAS operator even if he is a simple student-hobbyist.

As if that weren’t enough, Texas has some of the most stringent UAS privacy laws in the country.  Chapter 423 of the Government Code makes it a crime for anyone to use a UAS to “capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image.”  An “image” is expansively defined as including “sound waves, thermal, infrared, ultraviolet, visible light, or other electromagnetic waves, odor, or other conditions . . . .”  The University of Texas released a statement on Tuesday making it clear that the stadium is private property:

“The University of Texas at Austin is a public university, however that does not mean our buildings and/or campus is public property and open for use by the public.  The public is admitted to buildings by invitation.  For example:  Darrell K. Royal – Texas Memorial Stadium (DKR) is a facility in which the public is granted admission with a limited license (a ticket).”

While the UAS operator in this case might have an argument that he was not “conducting surveillance,” as that phrase is not defined in the statute, we are sure that the last thing he wants to do is be the test case that supplies a definition.

So, based on this incident, our advice for hobbyists is familiarize yourself with the rules, be aware of airspace restrictions and local laws, buy a ticket to the game and leave the drone at home.

(Originally posted September 5, 2014)