Drone Registration: A Question of Policy vs. Process

I often find myself in debates with smart people – people I like – who don’t understand the distinction between the merits of a particular government policy and the question of whether the government has the power to enact that policy.  To pick a recent example, you may think that preventing hunters from killing bear cubs in Alaska is a great idea.  Whether the government – especially, the Executive Branch, acting without statutory authority – has the power to enact such a ban is a question that many would regard as beside the point.  Those who question the Executive’s power to protect bear cubs obviously hate bear cubs.

Based on the tenor of articles like this one in today’s Washington Post, the FAA’s drone registration rule is the Alaskan bear cub of the moment.  Stakeholders are livid at John Taylor for having the temerity to question authority.  A spokesman for AUVSI (an organization in which I have been a member), seems rather beside himself:

Why do we have restrictions? Because we don’t want a drone ingested into an aircraft engine,” said Brian Wynne, a licensed pilot and president of the Association for Unmanned Vehicle Systems International, a leading industry group based in Arlington, Va.

Wynne said putting registration numbers on all aircraft should be seen as a basic safety requirement. But that was part of what was overturned by Taylor’s challenge.

“We have to have rules,” Wynne said.

I feel Mr. Wynne’s pain.  Really, I do.  Stakeholders who have invested so much in their drone businesses no doubt feel put upon by a regulatory regime that imposes high barriers to entry on them, while imposing very few restrictions on those who engage in the very same activity for personal pleasure.  A drone registration requirement for all seems only fair.

But, as Mr. Wynne said, “We have to have rules.” And first among those rules must be the rule of law.  Congress expressly prohibited the FAA from regulating model aircraft.  The FAA’s drone registration rule violated that unambiguous prohibition.

John Taylor was just the boy who pointed out the emperor’s lack of clothing.

D.C. Circuit Court Strikes Down Registration Rule for Non-Commercial Drones

We have previously expressed our skepticism of the FAA’s authority to require non-commercial drone operators to register their drones.  While the FAA’s registration requirement may have been well-intended, good intentions don’t overcome a clear statutory prohibition like FMRA Section 336, which expressly provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft…

That the FAA went ahead and did so anyway got under the skin of a lot of people, and rightfully so.  Perhaps the FAA didn’t count on the fact that at least one of those people had a license to practice law:

In a stunning David versus Goliath case, John A. Taylor, a model aircraft enthusiast and insurance lawyer, beat the Federal Aviation Administration and Department of Justice in a case challenging the legality of a December 2015 FAA rule requiring model aircraft to register like manned aircraft. The Court of Appeals for the District of Columbia ruled that the FAA’s registration rule, as it applies to model aircraft, “directly violates [a] clear statutory prohibition.”

The court specifically noted that Section 336 “codified the FAA’s long-standing hands-off approach to the regulation of model aircraft.”

In short, the 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.

The FAA raised two arguments.  First, the FAA argued that the registration requirement applied to all aircraft and pre-dated the FMRA.  In other words, it was pre-existing requirement.  This was belied by the FAA’s own history of making an exception for model aircraft.  The rule was a new regulation, and therefore prohibited by Section 336.

Second, the FAA contended that the rule was consistent with the FMRA’s purpose to “improve aviation safety.”  But that would be inconsistent with the text of the statute.  Congress, the court noted, is always free to amend the statute.

In a normal world, results like this wouldn’t be stunning.  Challenging the government on a rule that clearly exceeds its statutory authority should be more like shooting fish in a barrel.  But this is the world we have as a result of a judicial doctrine known as Chevron deference – i.e., that a court will generally defer to an agency’s interpretations of statutes, as long as there is a reasonable basis for that interpretation.  This has led to unfortunate consequences, and we may be witnessing the beginning of the end of the Chevron doctrine.

But let’s not take anything away from John A. Taylor’s achievement.  This was a great win, for himself, for the drone community, and for individual liberty.

Part 107 is finally out!

I always seem to be in a remote location with limited access to the internet whenever important news breaks.  Of course, today’s release of Part 107 was expected.  It was also expected that there would be few surprises, but there are some things that are worth noting:

While the altitude restriction is 400 ft AGL as opposed to 500 ft, you can fly higher if you are within 400 feet of a taller structure.  This makes sense when considering the number of drones that will be used for things like cellphone tower inspections.

The FAA will create a portal to apply for waivers of restrictions.

The FAA is creating a new certification, called “Remote Pilot Airman” certificate.  The good news is that the operator does not need to have the certificate as long as he is operating under the direct supervision of someone who does.  We are waiting to see what the aeronautical knowledge test will consist of.

While the FAA concedes that it does not regulate privacy issues, it intends to come out with some “best practices” on privacy.  It remains to be seen what those will be.

Of course, once the rule goes into effect, a Section 333 exemption will no longer be necessary to comply with what the FAA says is required to operate commercially.

For regular updates and commentary, on Part 107 and on other matters, follow us on Twitter at @dronelawdotcom.

 

Is Gun Drone Teen’s Challenge to FAA Subpoena Legally Sound?

Jason Koebler has another useful and informative story on a current development in the area of drone law.  This one concerns the “gun drone” teenager, Austin Haughwout, and he and his family’s challenge to an FAA subpoena demanding, among other things, “photographs and video, receipts for the flamethrower, YouTube audience, advertising, and monetization information. . . .”

The FAA is petitioning a federal judge to enforce its subpoena, which included a subpoena for depositions in New Haven.  The Haughwout’s opening brief in response (which cites this blog in a footnote) raises two arguments: (1) the FAA exceeded its regulatory authority by defining drones as “aircraft”; and, or alternatively, (2) the subpoena is unconstitutional as applied under the Commerce Clause of Article I.

For reasons that we discussed in this post and this post in the wake of the decision of the NTSB administrative appeals court in Pirker, this looks like a steep hill to climb.  Taking the second argument first, the Supreme Court practically slammed the door shut on limits to the Commerce Clause in Gonzalez v. Raich.  As we said here, the real question these days is, where does the Commerce Clause not extend?

Or, perhaps it would be more appropriate to ask, will the courts ever meaningfully limit the reach of the Commerce Clause? The Court did draw a line in National Federation of Independent Business v. Sebelius, but it was essentially rendered meaningless by the Court’s more memorable, alternative ruling that the Obamacare mandate could be construed as a tax.

Thus, unfortunately, the trend has been against the Haughwouts and, in any event, a court will decline to rule on a Constitutional question that can be resolved by statutory interpretation.  It would therefore take a judge of extraordinary courage to tell the FAA that is has overstepped its Constitutional bounds.

This brings us to the first question raised in the Haughwouts’ brief: Has the FAA overstepped its statutory authority by defining drones as “aircraft”?  The argument centers on the FAA’s interpretation of its “organic statute” at 49 U.S.C. §40101, and whether the FAA has overreached by defining drones as “aircraft”.  It also relies on a critique of the NTSB decision in Pirker II as having been wrongly decided.

This isn’t a bad question to raise.  Since the Pirker case settled, the question never went before an Article III court, and therefore remains unresolved.  Given that the question is to be argued at a hearing on July 6, I will not comment on the merits of this argument.

Surprisingly, we can find no discussion of FMRA Section 336, which bars the FAA from promulgating any regulation regarding model aircraft, the only exception being that nothing in Section 336 “shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”

We’re sure that the Haughwouts’ attorneys had good reasons for omitting any discussion of Section 336, but it’s certainly something that we would have considered raising.  The statute clearly evidences an intent by Congress to limit the FAA’s enforcement authority to threats to the NAS.  A battery-powered drone, being operated just above ground in a privately-owned forest, does not seem like a threat to the NAS, gun or no gun, flamethrower or no flamethrower.

Mr. Koebler correctly thinks that this might be the most important drone law case currently pending.

The story is also covered here by Ars Technica.

Who Is Being Fined By the FAA?

Jason Koebler of Motherboard made good use of FOIA and put together some useful information in a series of articles that are worth reading in detail:

Here, he reports on a list of every drone pilot that has ever been fined by the FAA:

The documents the FAA sent me show that the fine for flying a drone recklessly vary wildly: Some hobbyists have settled with the FAA for as little as $400, while others, such as the man who crashed his drone on the White House lawn, have paid as much as $5,500.

More commonly, the FAA fines people between $1,100 and $2,200 and, if it receives pushback, offers to settle for much less. Commercial operators have been fined as much as $1.9 million.

Among the interesting facts he reports is that the vast majority of fines are coming from the FAA’s Eastern Regional office.  What is it about the East Coast that makes it special? Tall buildings? More media attention?

I don’t want to detract from the excellent work, here, so go and read the whole thing.

Another article reports on the only licensed manned aircraft pilot in America who has had his license suspended (not revoked – the headline editor apparently doesn’t know the difference) for flying a drone.  Incredible.

The third article notes that the FAA has yet to fine anyone for flying commercially.  This may seem surprising, but it’s really not.  Koebler asked a former FAA counsel:

Loretta Alkalay, who was in charge of the FAA’s legal operations for the eastern region for more than 20 years, told me that the documents I showed her suggest the FAA doesn’t think it has legal standing to win a case that doesn’t involve reckless flight.

“I think it’s pretty obvious the FAA doesn’t think it can win a case on this whole commercial issue, which is why they haven’t really pushed it,” Alkalay told me.

That is probably why the FAA seems to treat FAR 91.13 as a catch-all for seeking fines against drone operators, but only sends cease and desist and educational letters to persons who are operating commercially without a Section 333.

About that handgun-firing drone

A knucklehead in Connecticut has caused quite the media firestorm over his video of a semi-automatic handgun being fired from a small drone.  I have received some media inquiries about whether it is legal or not.  The answer is that it depends.

Based on the video, it appears that this occurred on private property, away from any buildings or people.  The FAA does not seem to have a regulation that would prohibit discharging a firearm from a drone under those circumstances.

The closest thing you will find is FAR § 91.13, which prohibits the reckless operation of an aircraft (the FAA relied on this section in the Rafael Pirker case), and § 91.15, which prohibits dropping objects from an aircraft.  But both regulations apply only where the activity poses a danger to life or property.  That does not appear to be the case, here.

The more likely resource for determining the legality of this particular drone would be state law governing the handling and discharge of firearms.  These regulations vary by state, but in general one would look to whether a firearm was discharged in a reckless manner that posed a danger to others, or in a built-up area or an area zoned for housing.  You can review Florida’s law, here.

Does this presage the weaponization of private drones?  I doubt it.  The video seems to vindicate something I wrote back in October:

[A] small drone is unlikely to be a useful weapons platform. As anyone who has fired a gun can attest, the kickback from discharging a firearm would be just as likely to send a small drone tumbling out of the sky as it would be for the drone to hit its intended target.

The video proves the point.  The operator does not have any reasonable semblance of control over the weapon, and at one point he clearly seems to be downrange of the weapon.  That’s a big no-no among gun owners.

Having said that, I could foresee someone developing an “FPV drone paint-ball” war game (patent pending).  Where that would fit with FAA regulations and state firearms law might be a topic for another post.

Florida’s New Drone Law: Fulltime Employment for Lawyers?

Nothing can kill the growth of the commercial drone industry so much as bad laws and misguided regulations. And much as we discuss the issues surrounding federal regulation of drones, the industry faces equally difficult challenges at the state level, where an odd coalition of reactionaries from both the left and far-right have clamored for strict regulations on the use of drones, if not outright bans. State legislators are feeling the heat.

The Lawyers are lapping at my doorstep!Enter Florida’s new drone law.

Last week, Governor Scott signed Senate Bill 766 – called the Freedom from Unwarranted Surveillance Act (“FUSA”) – into law.  This new law adds language to Florida’s existing drone law, found at Section 934.50, Florida Statutes, providing for additional protections against drone surveillance, as well as providing a private right of action for violations.

Some have warned that the law will lead to a wave of litigation. For reasons that I will explain in a moment, I am not so sure. In any event, the law is definitely an example of poor draftsmanship, and it unfairly targets drone technology in a way that seems hypocritical. But its scope does not appear to be as broad as others have suggested.

First, some background:

In Florida v. Riley, the U.S. Supreme Court held that a police officer did not conduct a “search”, for purposes of the Fourth Amendment, when he observed a marijuana grow house from a helicopter that crossed the defendant’s property at 400 feet AGL (does that number seem familiar?). Relying on its prior opinion in California v. Ciraolo, in which police inspected the backyard of a house from a fixed-wing aircraft that was flying at 1,000 feet, the Court reasoned that “the home and its curtilage are not necessarily protected from inspection that involves no physical invasion.”

One might not like it, but for nearly three decades Riley and Ciraolo have been the standard for what constitutes a reasonable expectation of privacy on property as viewed from the air.

Thus, perhaps the most striking aspect of Florida’s FUSA is that it creates a “drone exception” to Riley and Ciraolo:

A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such persons reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

In other words, you have no reasonable expectation of privacy if you’re observed from a manned aircraft, but you do have such an expectation of privacy when observed from a drone. Go figure.

The statute contains a number of exceptions, such as when law enforcement has obtained a search warrant or when exigent circumstances exist. It also enumerates exceptions for commercial operations, such as land surveys, power grid inspections and, oddly enough, cargo delivery.

But the first commercial exception paragraph is likely to cause some problems.  It starts out well enough, excepting images captured:

By a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s or entity’s license.

That would seem to cover realtors, doctors, and lawyers, right?  I’m just kidding. Lawyers and doctors don’t really need to spy on people.

Well, actually, lawyers do hire “agents” and “contractors” to spy on people. They’re called private investigators. And herein lies a problem:

However, this exception does not apply to a profession in which the licensee’s authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.

In other words, if you’re a licensed private investigator, No exception for you! Which, by extension, means that lawyers also don’t get an exception. Unless they’re lawyers for the state, in which case they can get a search warrant. See how that works?

Speaking as a litigation professional, this is rather silly. Private Investigators are often called to check on whether someone is actually residing at a particular residence, or is hiding out to avoid service of process. Perhaps the legislature couldn’t figure out how to carve a narrow enough exception, or perhaps too many legislatures have been burned by divorce lawyers?

But the part that’s causing a lot of heartburn is the civil remedies provision:

The owner, tenant, occupant, invitee, or licensee of privately owned real property may initiate a civil action for compensatory damages for violations of this section and may seek injunctive relief to prevent future violations of this section against a person, state agency, or political subdivision that violates paragraph (3)(b). In such action, the prevailing party is entitled to recover reasonable attorney fees from the nonprevailing party based on the actual and reasonable time expended by his or her attorney billed at an appropriate hourly rate and, in cases in which the payment of such a fee is contingent on the outcome, without a multiplier, unless the action is tried to verdict, in which case a multiplier of up to twice the actual value of the time expended may be awarded in the discretion of the trial court.

This sounds scary, and it is. Attorney’s fees typically add up to an amount that is many times an actual damages award for these kind statutory remedies.  Some have suggested that the mere threat of a civil lawsuit poses a major hindrance to the development of commercial drones.  But does it really?

Let’s go back and look at what the statute prohibits: It says that a person

may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image. . . .

So, a plaintiff would have to prove that the defendant had a specific intent to conduct surveillance on the person or property captured in the image. In other words, you’re not liable for capturing images by mistake, or even incidentally. You have to have a specific intent to conduct surveillance.

That is likely to be a very tough standard for a plaintiff to meet. Discerning plaintiff lawyers (and there are many, believe it or not) might decide it’s not worth the trouble.

But keep in mind that (a) there are a lot of hungry lawyers on the street; (b) questions regarding intent are put to juries; and (c) juries have a way of being unpredictable. So, you might have a lot to think about.

If you have concerns about compliance with Florida’s new FUSA, don’t hesitate to drop me a line or give me a call, via the “Contact” page at the top.

UPDATE: Every so often, I need to remind readers that nothing on this blog should be taken as legal advice. My posts are intended to provide the public with general information, and some light academic discussion. If you need legal advice, please call a lawyer.

Has the FAA Claimed Jurisdiction Over Indoor Airspace?

Words have consequences.

Recently, I reported on remarks from a panel of experts on sUAS integration at the AUVSI expo in Atlanta. One of the more interesting comments came from the FAA’s director of sUAS integration, James Williams, who said that navigable airspace is wherever an aircraft can safely operate. And because Congress chose to define sUAS as “aircraft” in the FMRA, anywhere a small drone could fly safely is, therefore, navigable airspace.

The FAA uses this tautology to justify its claim of jurisdiction over all airspace, from the ground up, regardless of whether a discrete area is surrounded by trees or buildings that would make navigation impossible for a manned aircraft. But the weakness in this argument becomes apparent when taken to its logical conclusion, that the FAA may also claim jurisdiction over indoor airspace.

I have heard from a number of commercial operators who have been hired to conduct inspections inside of large warehouses, for example.  We also know, based on public comments, that Amazon has been testing its PrimeAir drones in the U.S. in enclosed spaces. Obviously, these are spaces where drones can safely operate.

So, why hasn’t the FAA claimed jurisdiction over indoor airspace?

The obvious answer is that indoor operations do not threaten the national airspace system (“NAS”) (we discussed the scope of the NAS here and here). But that just begs the soundness of the FAA’s reasoning.  The criteria should not be whether a drone can safely operate in a given area, but whether operating in a given area poses any kind of danger to the NAS.

We understand that the FAA has a difficult job to do.  But that’s no excuse for engaging in administrative overreach.

FAA Announces UAS Pathfinder Program

Everyone at AUVSI’s Unmanned Systems 15 expo waited on needles and pins for the FAA’s mysterious announcement, scheduled today for 11 am, EDT.  Your humble correspondent was able to crowd into the doorway of the press room and grab a few snippets.

The big takeaway is somewhat anticlimactic:  The FAA announced what it calls its “UAS Pathfinder Program” – a public/private partnership between leading companies in three business sectors – CNN, Precision Hawk, and BNSF Railway.  The latter companies will be permitted to operate beyond visual line of sight, while CNN will be permitted to operate in densely populated urban areas within visual line of sight.

The fact that the FAA seems to be favoring three selected businesses may seem disappointing to some; however, there is reason for hope.

Recall that the NPRM specifically left the door open to developing standards for BVLOS operations. The FAA sees this new initiative as an opportunity to gather data on the viability of these operations being conducted by sUAS operators.  I translate this to mean that the FAA is seriously considering an amendment to the final rule that will allow for beyond visual line of sight and for operations in densely populated urban areas.

But the FAA is nothing if not a cautious body, as we have all learned.

UPDATE: Brendan Schulman remarked  to me that the FAA is likely to take five years to gather data from this program, so he is less optimistic about seeing a BVLOS component to the pending sUAS rule. At least, he doesn’t see it happening by next year. That’s a fair point. 

Welcome to Unmanned Systems 2015

I’m here in Atlanta at AUVSI’s Unmanned Systems 2015 conference and expo, where DroneLaw.Com has its own humble booth on the expo floor while I split my time attending various panel sessions.

Our Humble Booth

Our Humble Booth

Yesterday, I had the good fortune of attending a panel on Legal Updates on the Use of sUAS, which was moderated by Mickey Osterreicher, General Counsel for the National Press Photographers Association.  Sitting on the panel were James Williams, Manager of the FAA’s UAS Integration Office; Dr. Gregory McNeal, law professor and Forbes contributor whose reports on UAS integration have been priceless; trailblazing sUAS attorney Brendan Schulman of Pirker case fame; media lawyer Charles Tobin; and English solicitor (he had a funny joke about that word) Peter Lee.  

The session mainly centered on critiques of the FAA’s rulemaking decisions, including its interpretation of Section 333.  Mr. Williams handled the slings and arrows with grace, and provided some plausible – if not completely satisfactory – explanations of the FAA’s thinking on various issues. 

One of the primary themes was the FAA’s claim that it lacks statutory flexibility on interpreting its mandate under the FMRA.  Mr. Williams noted that he is not an attorney, so he relies on what his legal staff tells him. He said that Congress made the decision to define sUAS as “aircraft,” which in turn brings all UAS under the existing FAR framework until new rules can be crafted. That is why, he said, the FAA has no flexibility under Section 333 to waive the airman certification requirement.

The lawyers on the panel expressed their disagreement, and during Q&A I pointed out that the Chevron doctrine gave the FAA a lot more latitude than it was claiming.  But of course, Mr. Williams didn’t come here to be persuaded to change the FAA’s mind, but to explain the FAA’s point of view.

One of the more interesting comments came when Mr. Williams was asked about the FAA’s broad definition of “navigable airspace” for purposes of sUAS. He said, first, navigable airspace is wherever an aircraft can safely operate. Second, because Congress chose to define sUAS as “aircraft” in the FMRA, anywhere a small drone could fly safely was therefore navigable airspace.

A clever bit of circular reasoning. But there you have it.

The panel also discussed the proposed microdrone rule that Brendan Schulman filed on behalf of the UAS America Fund.  The debate focused on the issue of whether a small drone of less than three pounds posed a genuine risk to aircraft.  Mr. Schulman pointed out that, in the opinion of his client’s expert, that sort of mass was equivalent to a medium-sized bird.  The data we have on bird strikes indicates that such a mass poses no unusual threat to manned aircraft.

Mr. Williams rebutted that mass is just one aspect of the equation, the other is kinetic energy. He said that the FAA has been diligently search for available data on this question, but have so far come up empty. (I suggested that someone should rent Boeing’s “chicken cannon”.  Williams said that he has actually looked into that, but that it would be too much money for his budget.)

Finally, readers will want to know of any new insight into the timeline for publishing a final sUAS rule.  Williams said that the FAA was pleasantly surprised by the manageable number of comments – somewhere in the range of 4,700.  This bodes well for having a final rule published by next year.