Tag Archives: regulations

Singer v. Newton: Are State and Local Governments Now Prohibited From Regulating Drones?

Posted on by

The short answer is, no.  The Singer decision is narrow, non-binding, leaves other parts of the ordinance in place, and expressly leaves the door open for Newton (and other state and local governments) to enact more narrowly-tailored regulations on drones.

In a way, the four challenged provisions of the Newton ordinance were an easy call, because each conflicted with or effectively usurped existing FAA regulations.  This allowed the court to invoke the doctrine of “conflict preemption,” as opposed to what is called “field preemption.”

“Field preemption” is invoked when the federal government occupies the entire field of an area of regulation that is within its Constitutional authority, even though it might not have enacted a specific regulation pertaining to the challenged state or local law.  Significantly, the court rejected field preemption because the FAA has expressly left the door open to some state regulation of drone use (such as the privacy protections of Florida’s FUSA statute, which I discussed, here).

“Conflict preemption” means exactly what it implies:  That when the federal government regulates an area within its Constitutional authority, those regulations are the supreme law of the land and the states may not enact laws that would contradict or undermine the federal regulation.

Briefly:

Section (b) of the Newton ordinance provided that “[o]wners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .”  Because the FAA has held itself out as the exclusive authority for registration of aircraft, striking down this provision of the ordinance was that rare bird in litigation: a no-brainer. This is probably the broadest part of the decision, in that the court made it clear that the city may not require any kind of drone registration, period.

The ordinance at subsection (c)(1)(a) prohibited drone flights below an altitude of 400 feet over any private property without the express permission of the property owner.  Also, subsection (c)(1)(e) prohibited flying drones over public property, at any altitude, without prior permission from the city.  The court found that these provisions had the effect of banning all drone flights in the city, because FAA regulations restrict sUAS flights to below 400 feet AGL.  While the FAA left the door open to some local regulation of drones, that should not be interpreted as license to effectively ban drone operations. This leaves the door open to the possibility of a more narrowly-drawn ordinance.

Finally, subsection (c)(1)(b) of the ordinance prohibited drones from being operated “at a distance beyond the visual line of sight of the Operator.”  This was plainly duplicative of Part 107 and, as such, tended to usurp an express regulation of the FAA (which could, at some time in the future, change its mind about BVLoS operation).

The decision ends with a note that Newton is welcome to craft narrower regulations.  Precisely what those regulations will look like is hard to say.

Whatever the case may be, one should not take this as an invalidation of drone regulations in one’s particular state or city.  The court only addressed these specific provisions of the Newton ordinance, and the decision has no binding effect on other courts, let alone other states and municipalities.

But let us not detract from the significance of this win, either.  Major kudos are in order for the petitioner, Dr. Michael Singer, and his attorneys.

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

Posted on by

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.

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

Posted on by

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?

Posted on by

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.

FAA Publishes Drone Registration Rules

Posted on by

Other than a few blurbs on Twitter, I haven’t had much to say about the pending rules on drone registration, primarily because it was unclear to me just how it could work, especially vis a vis hobbyists.  And it seemed especially unlikely to achieve the putative goal of allowing authorities to trace drones that endanger other aircraft back to their owners.

As I have said in the past, where the burden imposed by a regulation significantly outweighs the chance of getting caught, the likely result will be a lot of non-compliance.  And, as with many things, the people who do comply are unlikely to be the people that you need to worry about.

But I also know some of the stakeholders who participated in crafting the rule, and I wanted to wait and give them the benefit of the doubt.  They were given an enormous task, and very little time to come up with a solution.

Following a breakneck rule-making timeline, the interim final rule on drone registration has now been published.  It goes into effect next Monday.

FAA Grants Section 333 Exemption for Paper Airplane

Posted on by

Yes, you read that correctly.  The FAA got massively trolled by Peter Sachs, who applied for and received a Section 333 Exemption to commercially operate a PowerUp 3.0 Smart Phone-controlled paper airplane.  From the article by John Goglia:

His exemption allows him to “conduct aerial photography and videography” with the powered paper airplane so long as he meets dozens of conditions specified in the exemption and attached certificate of authorization. I asked the FAA for comment on whether granting the exemption indicates that the FAA considers a powered paper airplane an unmanned aircraft system, or UAS. An FAA spokesperson responded that “Mr. Sachs submitted a valid petition for exemption, and we granted the requested relief.”

And while Mr. Sachs has a helicopter pilot’s license, he is not current, which means that, in order to operate his paper airplane, he will need to spend thousands of dollars to become current or to hire a pilot.

You can read the exemption and application, here.

This brings to mind the ruling of the law judge in the Pirker case, wherein he found that the FAA’s position, vis a vis regulation of model aircraft, would lead to the “risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the ‘operator’ to the regulatory provisions of [14 C.F.R. part 91 and] Section 91.13(a).”  As we know, an appellate panel at the NTSB rejected that notion.

Well, now we know.

About that handgun-firing drone

Posted on by

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.

sUAS Apples to Amazon Oranges

Posted on by

Amazon Prime Air

Two news items on drone rules have some reporters comparing sUAS apples to Amazon oranges. The first is that, yes, hallelujah, the FAA expects to finalize its sUAS rules within a year.  The other news is the congressional testimony of Amazon VP Paul Misener that his company’s drone delivery technology will be ready to roll out in about a year, as well.

Several reporters, including the one cited above, have leapt to the conclusion that Amazon PrimeAir can start deliveries as soon as the final sUAS rule has been published.  See here and here.  Not so fast.

The NPRM that will be finalized next year only contemplates flights that are remotely operated by a single pilot, within visual line of sight.  While the NPRM invites comments on using drones for air carriers, Amazon’s PrimeAir business plan contemplates something much more complex – multiple, autonomous flights, well beyond visual line of sight.

The Daily Mail, of all publications, gets it right – that the launch of PrimeAir will completely depend on the FAA making major changes to the proposed rules. It is therefore highly unlikely that the final sUAS rule will address Amazon’s proposed method for drone delivery.

In fact, it is more likely that the FAA would issue an entirely separate NPRM for autonomous drone delivery services like that contemplated by Amazon. This would, in turn, be subject to the usual notice and comment period.

The upshot is that, while we are thankfully only a year away from having a final sUAS rule for remote-controlled, visual line of sight operations, we are, unfortunately, probably still years away from autonomous drone deliveries.

This could change, of course, should Congress decide to intervene. But for now, no such discussion appears to be on the table.

Has the FAA Claimed Jurisdiction Over Indoor Airspace?

Posted on by

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

Posted on by

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.