Technical Ramblings

The FAA’s ability to enforce civil penalties against safe flyers of UAV craft has not yet been tested in court, but don’t take this to mean that flying drones commercially is without risks: even in cases where the FAA isn’t assessing fines, handling the legal side of an FAA investigation can be a long, drawn-out process that can cost you lots in attorney’s fees.

With the advances in unmanned remote controlled craft over the past couple years, a massive industry of new photographers has sprung up. Even with a strongly stated position from the FAA that commercial flying is against Federal Aviation Regulations (FARs), there are many businesses in the US that continue to use drones for photography. Some do this knowing that there is risk, while some eschew the risk, taking the approach that safe flight is not within the realm of enforcement of the FAA for remote control model aircraft.

Even if the FAA has no power to enact penalties for a particular operation, that doesn’t mean that the flight is risk free, from a business perspective. In the ongoing case of “Michael Huerta, Administrator, Federal Aviation Administration v. Skypan International Inc.”, the FAA is pursuing Skypan for failing to meet the terms of a subpoena (original petition, exhibits). Unlike in any other case that has been publicized, however, this case is one where the FAA has no evidence that the flight was in any way unsafe, other than it took place inside New York City’s Class B airspace (approximately 5 miles from LaGuardia airport).

Over the past year, Skypan International has filed more than a half dozen motions related to responding to this subpoena, regularly producing documents that they feel are meeting the FAA’s demands, and being repeatedly called to task by the FAA for failure to meet with the demands of the subpoena. In the latest bout, the FAA claims that Skypan International has failed to the extent that they are in contempt of court for their failure to produce documents associated with the subpoena. Overall, more than a year has passed, with presumably dozens or possibly even hundreds of hours of legal time spent both on complying with, and responding to requests from, the subpoena from the FAA, from an organization which felt it was cooperating with the FAA!

As part of the continuing case, Skypan did attempt to claim that since the FAA had no regulatory power to assess the fines it was considering, it was unreasonable to request the documents as part of the subpoena; this was not successful, as the FAA (reasonably) argued that as part of an investigation, requesting documents to figure out whether anything *did* take place under their regulatory authority is part of their job.

A number of people flying under the “Fly Safe, and Keep Flying” approach. This is a reasonable approach for most people: the risk of FAA enforcement action in most cases is pretty slim. However, even if flying safely, as a commercial organization, there is still risk to any flight for commercial purposes of FAA investigation — which, even without penalties, can be a costly endeavor.

There is one upside at the moment. The pending case in DC Circuit Court against the FAA for their overly broad “Interpretation of the Special Rule for Model Aircraft” is currently held in abeyance at the request of one of the petitioners — which is itself a problem, slowing the potential response from the FAA to this legal challenge. However, as a component of the abeyance, the court has ruled that: “In the event the agency starts enforcing the rule challenged in this proceeding – “Interpretation of the Special Rule for Model Aircraft,” 79 FED. REG. 36,172 (June 25,
2014) – before considering and disposing of the comments it solicited, petitioners may request appropriate action.” (abeyance order). In short: If the FAA chooses to pursue further activities under the interpretation from June, the abeyance can be set aside, and the case against the FAA will proceed. This is hardly an ironclad agreement, but it seems unlikely that this is in the FAA’s best interest, and it is unlikely that they would choose to do so absent extreme cases.

Fly safe, but be aware: No amount of commercial flying is without risk of potential investigation from the FAA.

(One of the best sources of kibbitzing on drone-related legal topics that I have found is the UAV Legal News and Discussion Facebook group (somewhat to my surprise). In this group there are many of the experts in the field, from lawyers to journalists investigating the FAA’s actions. I highly recommend joining the group if you’re interested on keeping up with legal-related drone developments.)