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.

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.

 

Managing Drone Liability: Is New Legislation Necessary?

Crash

The question of drone liability is something that comes up, from time to time, in discussions with clients and in casual conversation.  The conventional wisdom one hears is that the unmanned systems and autonomous vehicles industry will never really take off until new laws have been enacted addressing liability when a vehicle causes injury to persons or property.

But is that really true?  Probably, not.  At least, not in the United States.

The fact is that the common law in the United States is amply well-suited to addressing unmanned systems liability issues, and that no major legislation is likely to be required in order for the industry to flourish.  We already have a system of laws governing automobile accident liability on the ground, and aircraft accident liability in the air. The distinctions vis a vis unmanned systems and autonomous vehicles are not legal, but factual

Liability for accidents, and injuries arising from accidents, breaks down into two basic categories: operational negligence and products liability.  Operational negligence is easy enough to understand: You run a red light and cause an accident, chances are (absent some extraordinary, intervening event) that you are liable for any damages.

It doesn’t matter if you lack sufficient experience and training. The law implies a duty to act in a manner consistent with that of a reasonable driver of ordinary skill.

On the other hand, products liability arises when a defect in the vehicle causes an injury.  If the defect existed when the vehicle left the factory, or at the time of sale, then the seller or manufacturer can be held strictly liable in tort for any injuries caused by the defect.  What constitutes a defect is a fact-sensitive question, but in general a product is defective if the risk is something that cannot be managed or foreseen by the operator, and is disproportionate to the product’s utility (or social utility).

That is why, for example, dangerous products with relatively little social utility, such as lawn darts (I’m showing my age!), can no longer be found on the market, while dangerous products with a great degree of utility, like chainsaws and farming combines, remain on the market.

Extreme events in products liability usually arise when a product having a high social utility, like a car, has a defect that makes it unreasonably dangerous to use. The GM ignition switch fiasco comes to mind as a recent example (although GM was able to avoid liability in that case due to the structured bankruptcy orchestrated by the government).

Other issues can come into play in products liability. For example, even if an aircraft is decades old the manufacturer can’t just ignore an airworthiness directive from the FAA regarding a known condition that might cause loss of control of the aircraft. But a manufacturer is not liable for defects in aftermarket parts and accessories that are incorporated into a vehicle after it is sold.

Among the manufacturer’s defenses to a products liability claim will be any facts suggesting negligence by the user. For example, if a product is used for a purpose for which it was not intended to be used, or the user failed to exercise reasonable care, the manufacturer might be off the hook. Thus, facts surrounding the operator/machine interface are often an issue in such disputes.

One can easily imagine how these principles will apply to drone liability. Questions will arise on how to sort out the standards for reasonableness of operator skill and risk/utility. But insurers, judges, juries and expert witnesses will be the primary drivers behind these determinations, not legislatures.

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.

South Africa Moves Forward on Drone Regulations

Drone operators in South Africa have been cooling their heels, waiting for regulations allowing commercial drone operations from the South Africa Civil Aviation Authority (SACAA).  Based on this report, it looks like their wait will soon be over.  In what would constitute a lightning-fast rules process in the U.S., South Africa went from proposed rules, issued in December, to the close of comments just over two weeks ago.  The regulations are supposed to be finalized by the end of January, and will hopefully become law by April-May of this year.

The draft regulations would require aircraft to be licensed and registered and pilots/operators to undergo training to qualify them to fly the aircraft. Someone would only be able to fly a remotely piloted aircraft (RPA) if they have an RPA Pilot License, an RPA Operator Certificate, a certificate of RPA registration and an RPA Letter of Approval.
Importantly, RPAs will be classified according to their mass, kinetic energy and type of operation (line of sight, beyond line of sight etc.), with ten classes ranging from Class 1A to Class 5 and with masses ranging from less than 1.5 kg to greater than 150 kg.

The draft regulations apply to class 1 and 2 RPAs (up to 120 kg). Private operations of RPAs will be conducted only in restricted visual line of sight with a Class 1A or 1B RPA (up to 7 kg). However, operating a UAV as a hobbyist falls under different regulations.

The proposed categories for pilots is interesting:

For anyone in South Africa with a UAV, there are three options to fly legally: one can apply for a license if pursuing commercial work (once the regulations are finalised); one can become a member of the South African Model Aircraft Association (SAMAA) if flying as a hobbyist; or one can fly as a ‘park flyer’.

Great work for SAMAA.  We believe that the following applies to those seeking to do commercial work:

Someone would only be able to pilot an RPA once in possession of a Remote Pilot License (RPL) in one of three categories: RPL (A) – Aeroplane Remote Pilot License; RPL (H) – Helicopter Remote Pilot License; and RPL (MR) – Multirotor Remote Pilot License. Several ratings are available including visual line of sight operations (VLOS), extended visual line of sight operations (E-VLOS) and beyond visual line of sight operations (B-VLOS).

The License would test things like air law, meteorology, navigation, aerodynamics, propulsion, flight control, batteries etc. Flight training can be a combination of simulator and real aircraft training and would cover things like aircraft inspection, systems checks, flight control/manoeuvres, takeoff, landing etc.

In other words, the SACAA isn’t taking a one-size-fits-all approach to licensing and, unlike the FAA, apparently won’t require pilots to be licensed to fly manned aircraft.

The flight rules get a little more complicated:

For commercial, corporate and non-profit flight operations, an operator would be required to have an RPA Operator Certificate (ROC – valid for 12 months) or air services license, which can only be granted if the operator has a registered aircraft, an operations manual and an RLA. ROC holders would have background and criminal record checks conducted and would have to have third party insurance.

For private use, RPAs would only be flown in restricted visual line of sight (within 500 metres of the pilot) and over property the pilot owns or has permission to operate over.

With regard to operating an RPA, under the draft regulations an aircraft would only be operated in controlled airspace by a holder of an ROC or if the RPA is flown in visual meteorological conditions in an air traffic zone (ATZ) and controlled traffic region (CTR) below 400 feet. RPAs intended for operations within an ATZ or CTR would have to be fitted with a mode C or S transponder, altimeter, strobe light/s and navigation lights.

Did we say that the operations rules get a little complicated?  Scrolling through the proposed regulations, one finds nuggets like this:

First aid kits

101.05.24 (1) No owner or operator of an RPA shall operate the aircraft unless a first aid kit consisting of the medical supplies … for manned aircraft is available within the remote pilot station and within 300 m of the takeoff and landing points. . . .

(2) The owner or operator shall carry out periodical inspections of the first aid kit to ensure that, as far as practicable, the contents thereof are in a condition necessary for their intended use.

(3) The contents of the first aid kit shall be replenished at regular intervals, in accordance with instructions contained on their labels, or as circumstances require.

(4) The first aid kit shall be readily accessible to all crew members involved in the operation.

Hand-held fire extinguishers

101.05.25 No owner or operator of an RPA shall operate the RPA unless –

(a) a hand-held fire extinguisher is available in the remote pilot station and within 300 m of the takeoff and landing points;

(b) a hand-held fire extinguisher suitable for use with electronic equipment and any power generating equipment in use is available in the remote pilot station; and

(c) a hand-held fire extinguisher suitable for use on the RPA is available within 300 m of the takeoff and landing points.

Good Lord.

As one might imagine, South African officials are concerned about a lack of personnel to implement these regulations, once they become law.  Such a dilemma is the natural result of a regulatory regime that, while sensible on some levels, is still going to be grossly inefficient and difficult to administer.

We give this proposed set of drone regulations a C+.

The complete draft regulations can be found here.

Drone Sense at the Washington Post

The Washington Post’s Editorial page is one of the last remaining mainstream editorial pages that still seems to have a few adults in charge.  On Sunday, it published a remarkably simple and cogent pronouncement on the state of drone regulations.  Noting the dissonance between regulations over commercial vs. recreational operators, as well as the reports of drones entering sensitive airspace, the editors have a few suggestions:

The FAA should finally release rules governing commercial drone flights shorn of the absurd requirement that operators must have hours of cockpit time in real planes. Commercial drone pilots should have adequate practice on the equipment they are actually using, and they should be up to speed on FAA rules on unmanned aircraft, air traffic control practices and how to deal with bad weather. They don’t need to know how to land a Cessna. If the FAA doesn’t make that clear, Congress should.

Meanwhile, the FAA should also find better ways to keep drones out of sensitive airspace.

The editors point to something that we have frequently suggested, that manufacturers of recreational drones be required to include built-in altitude and geo-fencing restrictions.  Indeed, the editors note that some manufacturers are already doing so.  If the FAA declines to take this common sense approach, then Congress might have to step up and mandate that it do so.

 

Results of Transportation Oversight Committee Hearing

We live-tweeted House Transportation and Infrastructure Committee hearing on the status of UAS integration, oversight and competitiveness.  You will links to the prepared testimony of the witnesses at the link.  Our real time comments can be found on twitter at @dronelawdotcom.

Some interesting themes emerged from this hearing.  Everyone seemed to recognize that the U.S. is falling behind on R&D and investment due to the lack of a comprehensive regulatory framework.

Several of the committee members raised questions over whether the FAA should, like other developed countries, pursue a more risk-based approach to UAS regulations.  The FAA’s Peggy Gilligan claimed that her agency is doing just that, at least when evaluating section 333 exemption applications.  This was telling.  Most of her remarks smacked of happy talk and filibustering.

Rep. Todd Rokita asked, if we are taking a risk-based approach, whether any actuarial studies have been conducted.  The answer was yes, but only as to large, high-altitude UAS.  There were too many unknowns to be able to evaluate risk profiles for smaller drones.

Another interesting theme was the general frustration with the fact that the much-heralded test sites are not getting much support from the FAA.  Some spoke of opening up more test sites.  Jesse Kallman of Airware suggested that developers be permitted to operate their own test sites.  This made sense to us.

Capt. Lee Moak of the Airline Pilots Association began his testimony by putting a brand new DJI Phantom on the table.  He compared the risk of collision with small drones to the risk of bird strikes.  His testimony made it clear that the airline pilots are lobbying for a go-slow approach.  In other words, the FAA might not be aggressive enough in trying to shut this madness down.

The overall impression was that Congress understands the problem and is losing patience with the FAA.  We might see more legislative involvement if things don’t start picking up speed.

A full video of the hearing can be viewed, below:

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.