Is the FAA On a Collision Course With the First Amendment?

I’ve been pretty busy, this week, and have just gotten caught up with this story about a letter from the FAA to Tampa Bay-area drone hobbyist Jayson Hanes. The precise meaning and intent of the letter is rather more vague than the writer suggests. As Hanes himself correctly pointed out in an interview, the FAA has not demanded that Hanes cease and desist from flying, or from posting his videos on YouTube, and has not threatened any enforcement action against him.

Nevertheless, this, and another recent story of a drone hobbyist in Maine who was told by the FAA that he would have to take down his website, raise a troubling concern that the FAA may be on a collision course with the First Amendment. Matters of free speech are not within the agency’s normal purview, which might explain the naïveté of an agent seeking to challenge one’s right to post videos on the internet.  Hanes commented that the FAA “is trying to flex its muscles” in an area that it doesn’t understand.

We understand that the FAA might be having difficulty enforcing its commercial drone ban.  The agency is not equipped to handle traditional law enforcement duties.  There are no police cars with flashing lights and the letters, “F-A-A,” emblazoned on their doors.  Everyone knows that non-compliance is rampant, and that the odds of getting caught and punished are low.

But such difficulties often prove to be the undoing of police agencies across the country.  The law books are full of cases where, out of sheer frustration, law enforcement officials overreached their constitutional boundaries and violated the rights of private citizens.  Avoiding such scenarios requires training and vigilance by those charged with enforcing the law.

As Peter Sachs commented to Motherboard, “It would behoove the FAA Office of Chief Counsel to make it abundantly clear to all aviation safety inspectors that the First Amendment is alive and well.”

Of course, the agency would more easily avoid getting itself into these kinds of embarrassing public relations imbroglios if it adhered to its own definition of what constitutes a “commercial” operation – i.e., activity with a business nexus.  It simply defies logic to say that posting videos on YouTube has any sort of nexus with business activity.

Can a State Grant Immunity for Shooting Down a Drone?

Do I feel lucky?

 

Anyone who has studied the law is likely to be familiar with the issue of federal-state preemption.  The doctrine may be generally described as, where the Constitution grants a power to the federal government to regulate an activity, and Congress exercises that power, state laws that contradict or undermine federal law are preempted and therefore invalid.

No one seriously questions whether Congress has authority under the Constitution to regulate the National Airspace (NAS), and no one questions the authority of the FAA to carry out enforcement of Congress’ mandates to regulate the NAS.  We discussed the scope of that power in this post, and the problem of drawing a bright line on the limits of the NAS.  The full answer to the question remains unsettled, but the argument is over where to draw the margins, not over the power, itself.

Enter the Oklahoma Senate, which might be about to vote on a bill that would grant immunity to anybody who shoots down a drone over his or her property.  If passed, this would put Oklahoma on a collision course with federal law, which makes damaging or destroying an aircraft a felony.  This statute covers pretty much any “aircraft” in the U.S.  The FAA has declared – and the NTSB has affirmed – that a “model aircraft” is an “aircraft” for purposes of the FARs.

Thus, even though Oklahoma might purport to grant its citizens immunity from prosecution when shooting down a drone (or a town passes a law encouraging its citizens to shoot down drones), the shooter could still be prosecuted under federal law, which would completely pre-empt any state law immunity.  If you think we’re kidding, consider the discussion of Gonzales v. Raich in this post.  The feds might decide not to enforce the law against a person, but that is a matter of prosecutorial discretion.

This is why state and local governments need to be very careful about incentives they put in place vis a vis drones.  They could very well mislead their citizens into earning time in federal prison.

We’ll be at the Florida Unmanned Systems Business Expo

The Florida Unmanned Systems Business Expo takes place at the Wyndham Resort in Orlando, February 26-27.  Go here to register and use promo code “DRONELAW2015″ to get a $100 discount.

If you register before February 4, you will get a $50 discount for your stay at the Wyndham.

If you attend, be sure to stop by the booth for Diaz Reus and say hello!

So, if you’re getting paid, the FAA says to get a pilot’s license

That seems to be the gist of this story, which has taken the internet by storm, today:

Highly anticipated federal rules on commercial drones are expected to require operators to have a license and limit flights to daylight hours, below 400 feet and within sight of the person at the controls, according to people familiar with the rule-making process.

The drone industry has awaited commercial rules for about six years, hoping the rules would pave the way for widespread drone use in industries such as farming, filmmaking and construction. Current FAA policy allows recreational drone flights in the U.S. but essentially bars drones from commercial use.

In addition, pilot certifications likely to be proposed by the FAA would typically require dozens of hours flying manned aircraft, according to people familiar with the rule-making discussions. Drone proponents have resisted requiring traditional pilot training for drone operators.

There’s a lot to unpack, here. But the upshot is that, assuming the report is accurate, hidebound thinking has prevailed over common sense: Two operators, side by side, operating the same model, under the same conditions will be subject to different requirements, based on the mere fact that one is getting paid and the other is flying for pleasure.

Leaving that aside, requiring anyone to go to traditional flight school to become licensed to operate a small, remote-controlled model-type aircraft makes about as much sense as requiring someone to be trained in an M1 Abrams tank as a condition for being allowed to fire a pistol on a shooting range.

We will obviously have much more to say about this as the news unfolds.

The Meaning of Yesterday’s NTSB Ruling

All Is Not Lost

Yesterday’s ruling from the NTSB, overturning Judge Geraghty’s order in the Pirker case, caused quite the twitter storm, and practically crashed our Google news feed. So, a lot of virtual ink has already been spilled on this. But much of it has been either poorly written or flat-out wrong.

We stand by our initial take, which is that the scope of this ruling is ultimately quite narrow. We also think it stands on shaky ground, and could be vulnerable on review by an Article III court.* Here’s why.

First, the opinion was narrowly tailored to the question of whether a model aircraft falls within the FAA’s enforcement authority under 14 C.F.R. § 91.13(a), which provides that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” The key finding was that a model aircraft is an “aircraft” under 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1. Section 40102(a)(6), the NTSB concluded:

defines “aircraft” as “any contrivance invented, used, or designed to navigate, or fly in, the air.” Similarly, 14 C.F.R. § 1.1 defines “aircraft” for purposes of the FARs, including § 91.13, as “a device that is used or intended to be used for flight in the air.” The definitions are clear on their face. Even if we were to accept the law judge’s characterization of respondent’s aircraft, allegedly used at altitudes up to 1,500 feet AGL for commercial purposes, as a “model aircraft,” the definitions on their face do not exclude even a “model aircraft” from the meaning of “aircraft.” Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. An aircraft is “any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless.

That sounds like a broad conclusion. It is, and it isn’t. The NTSB points out that, at the time of the original Federal Aviation Act:

so-called “drones” were largely the currency of science fiction. Congress demonstrated prescience, however, in the early definition of “aircraft”; it expressly defined the term as any airborne contrivance “now known or hereafter invented, used, or designed for navigation of or flight in the air.”

… [The FAA] may choose to exclude certain types of aircraft in a practical sense, by refraining from bringing a charge under the FARs against a model aircraft operator; Advisory Circular 91-57 implies such a practice, and the processes outlined in 14 C.F.R. §§ 11.81 – 11.103 provide a more formal means of seeking exemption. However, for the case sub judice, the plain language of § 91.13(a), as well as the definitions quoted above, does not exclude certain categories of aircraft.

Turning to whether the FAA correctly applied Section 91.13(a) to Pirker’s model aircraft, the NTSB points to the doctrine of judicial deference to agency interpretations of the statutes they are charged with enforcing. Agency interpretations will generally be accorded deference if the agency can point to a reasonable basis in the underlying statute. The NTSB concludes that, since nothing in the history of the statute or the FAA’s enforcement actions indicate a clear intent to categorically exclude model aircraft from the definition of “aircraft,” the FAA’s interpretation should be upheld as reasonable.

But the NTSB also hints that the scope of this conclusion will be constrained by practical limits on the FAA’s prosecutorial discretion. Simply put, the FAA cannot prosecute every operator of a model aircraft who does something dangerous or foolish. The decision also does not grant the FAA license to enact a wholesale prohibition on the operation of model aircraft, or even require licensing for hobbyists.

In summary, if you are an amateur hobbyist who operates a model aircraft within traditional parameters – less than 400 feet, within line of sight (precise definitions are being sorted out in the courts), and you refrain from doing anything stupid, the chances of getting a citation from the FAA are exceedingly remote.

Pirker might be able to argue that the NTSB’s ruling is inconsistent with the scope of the FMRA’s Special Rule for Model Aircraft, which we discussed here. The Special Rule contains a statutory construction provision:

Nothing in this section 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.

FMRA, Sec. 336(b) (emphasis added).

Although FMRA was enacted after Pirker’s “offending” flight, he could argue that this statutory provision shows that the FAA’s interpretation is directly at odds with Congressional intent, vis a vis model aircraft. A threat to individuals and their property, he might contend, is not a threat to the “safety of the national airspace system.” In other words, unless a model aircraft has somehow threatened the safety of the national airspace, as that has been traditionally defined, its unsafe operation should be a matter for local police authorities, not the FAA.

Such an argument would have sound Constitutional underpinnings. Congress derives its authority to regulate airspace from the Commerce Clause of Article I, which gives Congress the power to regulate interstate commerce. Granted, the courts have construed this power so broadly that it is by now practically meaningless as an enumerated limitation on the federal government. But it is generally recognized that the power extends to regulation of anything that has a material impact on interstate commerce.

What constitutes an effect on interstate commerce is typically a fact-sensitive question. Hypothetically, prosecuting a model aircraft operator who buzzes old ladies on a sidewalk is not something that even remotely affects interstate commerce, whereas an operator who flies his Phantom II into the air intake of a commercial jet does affect interstate commerce.

It will be interesting to see whether Mr. Pirker takes up these questions on appeal to an Article III court.

——
* An Article III court is a court established by Congress under Article III of the U.S. Constitution. The NTSB court is an administrative court and is therefor part of the Executive Branch under Article II. Article III courts have jurisdiction to hear appeals from the decisions of administrative courts.

Hogan Lovells Launches UAS Group

Global law firm Hogan Lovells has announced the formation of its UAS group.

“Companies around the world are considering, with great interest, the numerous possibilities that unmanned aircraft systems create,” said Hogan Lovells UAS Group chair E. Tazewell “Ted” Ellett. “This sophisticated technology opens up many business opportunities for our clients. Our Aviation practice has been assisting UAS clients for years. Now, by creating this dedicated UAS Group comprised of firm lawyers who are specialists in the many disciplines and industries of interest to our UAS clients, we are able to provide comprehensive UAS-related legal services on a global scale.”

A link to their UAS practice page can be found here.

Connecticut Lawmakers Consider Drone Rules

Today we have links to a couple of local reports on a hearing before Connecticut lawmakers regarding the creation of possible drone rules.

Both reports feature a demonstration by Peter Sachs, who continues to do yeoman’s work on behalf of small drone operators.  An excerpt of Peter’s testimony can be viewed here.

As usual, the media emphasizes privacy concerns while saying next to nothing about the wide range of proven and potential benefits of this technology.  We have unfortunately come to expect this kind of willful ignorance from reporters.

Some legislators fare no better.  Consider the comment from State Rep. Mary Mushinsky, who said, “We had one incident in New Jersey where somebody shot down their neighbor’s drone because he was using the drone to harass the neighbor.”

With all due respect, ma’am, we have seen no report suggesting that the operator was harassing anybody.  Please, learn the facts before you cast your vote on anything pertaining to this issue (or any other issue, for that matter).

Stupidity aside, the Connecticut legislature appears ready to abstain from instituting a moratorium on drone use.

Dumb, Dumb-Dumb Dumb!

Does anyone remember the old “Dragnet” theme? Put that tune to the words, “Dumb, dumb-dumb dumb,” and you’ll have some idea of our reaction to this story:

A New Jersey man was arrested after police say he shot down a neighbor’s remote control drone.

According to investigators, officers with the Lower Township Police Department were called to a home in the 1000 block of Seashore Road on September 26th to investigate the report by a resident that his remote control helicopter (drone) was shot down.

The suspect – a neighbor – was booked on charges of Possession of a Weapon for an Unlawful Purpose and Criminal Mischief, and his shotgun was seized by police.

We have seen a number of people, in various discussion threads, say that if a drone ever flew near their property they would shoot it down. We have sought to discourage such thinking. There is practically no good reason to discharge a firearm in a populated area, unless you are being attacked and threatened with impending death or great bodily harm (and the law on this varies by state – some require that you first exhaust all means of safe retreat before using deadly force).

A civilian drone is not a threat to your life or safety. It might be annoying. It might be regarded as an intrusion on your privacy (but not really – see here). But unless you’re in the crosshairs of a military drone in some godforsaken battlefield (and chances are that, if you do end up in such a situation, you are unlikely to know what’s coming until it’s too late), there is never a reason to shoot at one. At best, you might be sued for destroying someone’s private property.

But the more likely outcome is a story like the one above.

UPDATE: David Michael Butts at the UAV Legal News discussion group on Facebook makes an excellent observation: If the FAA insists on calling small drones “aircraft,” why didn’t this man just commit a federal crime?

A week of drone law blogging at the Washington Post!

Michael Berry and Nabiha Syed are guest-blogging at The Volokh Conspiracy this week in a series dedicated to the regulation of private drone use. Their first post, on “journo-drones,” is here. Today, they write about philosophical approaches to drone regulation:

As policymakers consider drone regulation – particularly with respect to privacy and safety – the possible fields of regulation fall into five principal realms: operators, flight, purpose, property and surreptitious use. Some of these categories face practical difficulties, while others present constitutional issues. Nevertheless, these five fields offer a framework to help make sense of the legislation and regulation emerging around the use of drones.

The authors intend to visit the history of the FAA’s piecemeal approach, tomorrow.

In the meantime, we would suggest that they consider the consumer product approach to sUAS regulations for one of their posts.