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Drone soars over vineyards, but is it legal?

Ray Marcinkowski, the online marketing director for Vintage Wine Estates, holds a Quad Copter, in which he mounts a Go-Pro camera to to shoot video for Kunde Family Estate.

Kent Porter / The Press Democrat
Published: Monday, March 18, 2013 at 6:22 p.m.
Last Modified: Tuesday, March 19, 2013 at 7:28 a.m.

The YouTube video begins with a soaring journey above century-old magnolia trees that lead from Highway 12 into Kenwood's Kunde Family Estate.

Winemaker Zach Long describes the estate's wines as the aerial tour continues over hillside vineyards that produce each varietal.

The images are lovely, the production slick. It's also likely the video is illegal.

Under current federal aviation rules, using unmanned aircraft -- what commonly are referred to as drones -- for commercial purposes is prohibited in the United States.

Kunde officials dispute that's what they are doing with Vino, the nickname for the remote-controlled device they bought for less than $1,000 online.

"We're just filming our vineyards," said Marcia Kunde Mickelson, the winery's marketing communications manager.

Regardless, the winery's drone illustrates how widespread their use has become and the challenges facing local, state and federal authorities as they try to craft regulations to deal with thousands more unmanned aircraft taking to the nation's skies. By one estimate, there will be 30,000 drones whizzing and whirring above us by 2020.

Public and private agencies, as well as individuals, will be looking for guidance in the new rules, which are certain to test the boundaries of safety and civil liberties.

Drones are promoted as low-cost, low-risk tools for responding to natural disasters, searching for missing people, monitoring atmospheric events and optimizing agriculture. They also are feared as objects of spying, criminal activity and terrorist mayhem.

Santa Rosa Police Lt. John Noland, who conducted research into drones while taking an advanced police management course, raised the specter of "fly-by gang shootings" and other new crimes involving the use of drones.

"Why dig a tunnel to transport dope when you can fly it around and not get caught?" Noland said.

A winery using a drone to film vineyards seems benign by comparison. But Noland raised the example of paparazzi using unmanned aircraft to clandestinely film a celebrity's wedding and then selling the images, something Noland said already is being done.

"It's a bit like the New West," he said of the nation's unregulated air space.

President Barack Obama has given the Federal Aviation Administration until late 2015 to develop a long-term policy for bringing what officially are known as Unmanned Aircraft Systems into the nation's skies.

Drones already are in widespread use around the country. Since 2007, the FAA has issued 1,428 permits for unmanned aircraft use. Of those, 327 were still active as of mid-February, according to a spokesman.

The permits were sought by universities, police departments and government agencies because under the current rules, private drone operations are banned except those involving "research and development, market surveys and crew training."

The Alameda County Sheriff's Department has garnered headlines for attempting to become the first law enforcement agency in California to acquire a drone.

A sheriff's department in Texas already has a 50-pound ShadowHawk helicopter drone, which the department plans to use in SWAT operations. The drone reportedly can be outfitted with a grenade launcher and shotgun.

Sonoma County Sheriff Steve Freitas said he has not considered whether his department could use a drone. He said the sheriff's helicopter -- Henry 1 -- is available to help with pursuits and with other tactical operations.

Freitas said sending the helicopter around the county on non-specific surveillance missions -- something civil libertarians fear law enforcement will be tempted to do with drones -- would not be a "very effective use of the helicopter's or staff's time."

Santa Rosa Police Chief Tom Schwedhelm said it could be "very valuable" to have a drone that could transmit information in real-time during a law enforcement operation. He also acknowledged privacy concerns with the technology, saying "stringent controls would have to be in place" during their use.

"Is there an immediate need in the city of Santa Rosa for this new technology? My answer is, no, we're able to be a pretty effective agency without it," he said.

Noland, who presented his research on drones to the department's brass, outlined a number of scenarios in which unmanned aircraft could prove beneficial to the police.

He said in the event of a shooter inside one of the city's malls, a drone could be flown inside the building to relay information about the suspect's whereabouts to officers.

"The technology is going to get so good that you are going to be able to type in the height, weight, race, hair color and clothing of the suspect and it (the drone) will only look for that person," Noland said.

He described a different scenario -- one that could apply to police or criminals -- in which a drone is flown over someone's house and then underneath a patio cover for access to a marijuana garden.

"I can understand people's concerns for that type of flight," he said. "That's where the new type of regulations are going to come in."

Cal Fire has worked with other agencies, including NASA, to test whether drones can be of benefit during wildfires. A spokesman said the fire agency has begun to move away from the technology because it was taking too long for computer programs to process information gathered by drones.

In addition to the federal efforts, state Sen. Alex Padilla, D-Pacoima, has introduced a bill to regulate the aircraft in California. Lawmakers in at least 11 other states have drafted similar proposals.

Part of the effort involves simply defining what a drone is. The term implies something operating of its own accord, when in fact, these aircraft are almost always flown by humans, albeit from remote locations.

The Academy of Model Aeronautics argues that drones are not model aircraft because the latter are flown within the line of sight of, and under the control of, a pilot at all times.

Ray Marcinkowski, who works for Kunde in online marketing and pilots Vino, said he always has the device within visual range.

"There's nothing automatic about it," he said.

The name of the device -- the DJI Phantom Aerial UAV Drone Quadcopter -- implies something different. The aircraft has a range of 984 feet and includes a GPS-enabled auto-pilot mode so that it can hover in place or return to its user's last-known location, according to the manufacturer.

Mickelson said she believes the winery is on solid legal footing with the drone because it's only capturing images from winery property.

The videos are uploaded to a public YouTube channel and to the winery's Facebook page as a promotion for wine club members.

Nevertheless, Mickelson referred to the videos as a "private use."

Ian Gregor, an FAA spokesman, said that if someone uses unmanned aircraft to shoot videos or photos that will be used for promotional purposes, "the purpose of the operation would appear to be commercial, and commercial use of UAS is not allowed under current rules."

He said the agency typically sends cease-and-desist letters to people who are flouting the rules.

Marcinkowski said if it turns out that what Kunde is doing is illegal, "of course we'll stop doing it."

You can reach Staff Writer Derek Moore at 521-5336 or derek.moore@pressdemocrat.com. On Twitter @deadlinederek.

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