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Hiring a hobbyist? You might be committing a federal crime.

The question has arisen from time-to-time, as to whether a customer who willingly engages the services of a drone operator, knowing that he or she does not hold a Part 107 Remote Pilot Certificate, could be subject to federal legal action. The answer is a qualified “yes.”

This question has thus far centered around the meaning of “operate,” which is defined similarly in both the Code of Federal Regulations and the U.S. Code. Federal Aviation Regulation 14 CFR 1.1, defines “operate” as:

Operate, with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose (except as provided in § 91.13 of this chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as owner, lessee, or otherwise).

Similarly,​ ​U.S. Code 49 U.S. Code § 40102​(a)​​(35)​​, ​defines “operate” and “operation” as:

“operate aircraft” and “operation of aircraft” mean using aircraft for the purposes of air navigation, including—
(A) the navigation of aircraft; and
(B) causing or authorizing the operation of aircraft with or without the right of legal control of the aircraft.

​Note the phrases “cause to use” and “authorize to use”​ in the regulation, and the phrase “causing or authorizing” in the statute. That language indicates that the drafters contemplated scenarios where persons who are not actually piloting an aircraft may nonetheless be “operating” one if they cause or authorize it to be operated.

As an “operator,” logic dictates that they are subject to all regulatory and statutory requirements and restrictions that apply to the operation of aircraft. Indeed, case law supports this argument, as it has been the basis of at least one FAA enforcement action, the holding of which was subsequently affirmed by a Court of Appeals.

In The Matter of Fenner, FAA Order No. 1996-17 (May 3, 1996), aff’d Fenner v. FAA, 113 F.3d 1251 (11th Cir. 1997), a DOT Administrative Law Judge held that an aircraft owner was responsible for regulatory violations committed not by him, but by another person — a licensed airmen who was piloting the aircraft with the owner’s permission. Accordingly, the aircraft owner was assessed a civil penalty. On appeal, the FAA Administrator affirmed the DOT Judge’s holding, and the FAA Administrator’s holding was subsequently affirmed by the Court of Appeals.

In Fenner, an aircraft owner permitted another licensed pilot to fly his aircraft. That pilot proceeded to operate the owner’s aircraft in a careless and reckless manner, near other aircraft and he failed to grant the right of way to other aircraft, in violation of FARs 91.13, 91.111 and 91.113 respectively.

For reasons unknown, the aircraft owner refused to identify the unknown pilot he had permitted to operate his aircraft. Since there was no way to enforce anything against the unknown pilot, the FAA instead brought an enforcement action against the aircraft owner, using the legal definitions of “operate” as its basis for the action.

The DOT Judge held that the owner of the aircraft was the “operator” of the aircraft even without having been the person who flew it when the regulatory violations occurred, because he had permitted (caused or authorized) the operation. On appeal, the FAA Administrator upheld the DOT Judge’s decision, and on further appeal, the Court of Appeals affirmed.

Thus, as the Fenner case shows, it is possible for someone other than the actual pilot to be found liable for illegally operating of an aircraft, at least in the context of an aircraft owner permitting another person to fly his or her aircraft.

But what if it’s not the aircraft owner? What if it’s simply someone — namely a customer — who willingly hires someone to fly a drone who they know is not licensed to operate a drone commercially? Could they (like the aircraft owner in Fenner), be found legally liable for operating a drone commercially without holding an FAA Remote Pilot Certificate?

The answer is a qualified yes, and it’s a federal crime punishable by a fine of up to $250,000.00 or 3 years in prison, or both. It’s a qualified yes solely because to the best of this writer’s knowledge and research, the relevant section of the statute (referenced below), has never been enforced; it was drafted and adopted prior to the existence of modern drones; and prior to the availability of the now required FAA license to operate drones commercially.

I understand that it seems very odd and impossible to imagine that someone who hires an unlicensed drone operator could potentially face federal criminal charges. However, buried within our bodies of law exists a federal criminal statute, the plain language of which states it is a crime if a person “knowingly and willingly employs for service or uses in any capacity as an airman an individual who does not have an airman’s certificate authorizing the individual to serve in that capacity.” See: 49 U.S. Code § 46306(b)(8), entitled, “Registration violations involving aircraft not providing air transportation.”

The statute’s language is unambiguous, and would arguably apply to the knowing and willful hiring of an unlicensed person to conduct commercial drone operations. Drones are legally “aircraft,” they must be registered if operated commercially, and they do not provide air transportation. Although, as previously stated, this writer has no evidence of the statute ever having been enforced in this manner, there is nothing in its clear and plain language that would seem to prevent it from being used.

So, what’s a customer to do? Well, simply verify that the drone pilot holds an FAA-issued Remote Pilot Certificate. They must have been issued one to legally conduct commercial drone services. If they don’t have one, certainly don’t hire them. If you are searching online for an FAA-licensed commercial drone pilot, use a pilot directory like CommercialDronePilot.com, which verifies its member pilots’ credentials. (Full disclosure: I own and operate the site.)

In any instance, although this writer has yet to find any instances of the statute described above having been used for this purpose, there is nothing that would indicate it could not be used to charge a customer who does not perform due diligence, with a serious federal criminal offense. Why take a chance being a party to the first test case. Don’t hire hobbyists. Hire only FAA-licensed commercial drone pilots.

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DC Circuit Vacates Model Aircraft Registration Rule

The D.C. Circuit Court of Appeals has ruled in Taylor v. Huerta, that the FAA’s registration rule — with respect to model aircraft — is illegal, and has vacated that rule.

Court Order: http://bit.ly/2qz1p5h
Court Opinion: http://bit.ly/2q0tiAB

Read more from Former NTSB Member John Goglia here.

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Why is there a TFR over Standing Rock?

The FAA has imposed a 4-nautical mile Temporary Flight Restriction, (“TFR”), in airspace up to 3500 feet above sea level, over the Standing Rock Protest in North Dakota. The land in that area sits approximately 1600 feet above sea level, meaning about 1900 feet of the sky above the protest is off limits to any aircraft other than those permitted to fly — namely, aircraft in support of the law enforcement activities.

Neither the mainstream media, nor citizen journalists, nor activist hobbyists may fly in that area to document what law enforcement is doing. In essence, a “giant tarp” has been laid over the site, allowing law enforcement to act with impunity and without any witnesses. There is something very troubling about that, especially given the widespread accounts of militaristic law enforcement tactics, many of which have already been documented by drones.

Let me make it clear that I am not anti-law enforcement. I work with law enforcement on a regular basis, and many of my friends are local, state and federal law enforcement members. I simply do not consider the behavior of the law enforcement members at Standing Rock to be acceptable, or representative of professional law enforcement.

It does not take a degree in rocket science to realize the effect of the TFR is that it blocks any documentation of the protest from the sky. Whether that is also the reason it was requested and granted is a matter of opinion, of course. In this writer’s opinion that is unquestionably the reason. It’s another Ferguson-style TFR, where a TFR was requested and imposed specifically to bar media coverage. (The FAA has denied that of course, but the transcript indicates otherwise.)

What is not a matter of opinion is what the law requires for the issuance of a TFR. A TFR is issued by the FAA after it reviews and approves an agency’s request for one. The federal aviation regulation that governs the issuance of TFRs is FAR 91.137. In this instance, the FAA has used the most strict of the three degrees of flight restrictions available — 91.137(a)(1) — the relevant portion of which reads:

91.137 Temporary flight restrictions in the vicinity of disaster/hazard areas.

(a) The Administrator will issue a Notice to Airmen (NOTAM) designating an area within which temporary flight restrictions apply and specifying the hazard or condition requiring their imposition, whenever he determines it is necessary in order to –

(1) Protect persons and property on the surface or in the air from a hazard associated with an incident on the surface;

. . .

The Notice to Airmen will specify the hazard or condition that requires the imposition of temporary flight restrictions.

(b) When a NOTAM has been issued under paragraph (a)(1) of this section, no person may operate an aircraft within the designated area unless that aircraft is participating in the hazard relief activities and is being operated under the direction of the official in charge of on scene emergency response activities.

Note that FAR 91.137 requires that the FAA “specify the hazard or condition that requires the imposition of temporary flight restrictions.” Here’s the text of the NOTAM that accompanies the TFR:

FDC 6/1887 ZMP ND..AIRSPACE CANNONBALL, ND..TEMPORARY FLIGHT RESTRICTIONS WI AN AREA DEFINED AS 4 NM RADIUS OF 462610N1003752W (BIS164019.6) SFC-3500FT MSL EXCLUDING AN AREA DEFINED AS .3NM RADIUS OF 462515N1003751W (BIS164020.5) SFC-2000FT MSL FOR LAW ENFORCEMENT OPERATION. PURSUANT TO 14 CFR SECTION 91.137(A)(1) TEMPORARY FLIGHT RESTRICTIONS ARE IN EFFECT. ONLY RESPONSE ACFT IN SUPPORT OF THE LAW ENFORCEMENT ACTIVITY UNDER THE DIRECTION OF THE NORTH DAKOTA TACTICAL OPERATION CENTER AND ACFT APPROVED BY ATC IN COORDINATION WITH THE DOMESTIC EVENTS NETWORK ARE AUTHORIZED IN THE AIRSPACE. NORTH DAKOTA TACTICAL OPERATION CENTER TELEPHONE 701-667-3224 IS IN CHARGE OF ON SCENE EMERGENCY RESPONSE ACTIVITY. MINNEAPOLIS /ZMP/ ARTCC TELEPHONE 651-463-5580 IS THE FAA COORDINATION FACILITY. MEDIA CONCERNS REGARDING THIS TEMPORARY FLIGHT RESTRICTION SHOULD BE DIRECTED TO FAA PUBLIC AFFAIRS THROUGH THE WASHINGTON OPS CENTER AT 202-267-3333. 1611260000-1612022359.

The only language in the text of the NOTAM that even remotely resembles the specification of a hazard or condition, is the phrase “FOR LAW ENFORCEMENT OPERATIONS,” and I was able to confirm with an FAA spokesperson yesterday, that “FOR LAW ENFORCEMENT OPERATIONS” is, in fact, the specified hazard or condition for the TFR.

Assuming that the FAA does not consider law enforcement operations themselves to be a “hazard,” (which ironically is the case at Standing Rock), it must consider those operations to be a “condition.” Under FAR 91.137, that condition must also be the reason specified to support the issuance of the TFR to “[p]rotect persons and property on the surface or in the air from a hazard associated with an incident on the surface.”

What condition about “law enforcement operations” would present a hazard to persons or property on the surface?

Well, law enforcement is shooting drones out of the sky — eight of them as of this writing. Aside from being a federal felony, shooting drones (which are “aircraft”), from the sky most certainly presents a hazard to persons or property on the surface because of a universally-recognized law — gravity. However, that particular hazard, created solely by law enforcement, could be easily eliminated if they simply stopped shooting down drones. Law enforcement at Standing Rock is also flying aircraft, (displaying altered registration numbers in violation of federal criminal law), at extremely low and unsafe altitudes over those protesting against the pipeline, arguably in violation of FAR 91.13, which prohibits careless and reckless flight.

What condition about “law enforcement operations” would present a hazard to persons or property in the air?

Well, if they are flying carelessly or recklessly, that would certainly present a hazard. Intentionally descending upon other aircraft (the lower flying drones) would also present a hazard. Flying in areas where they know drones are flying would present a hazard, especially when FAR 91.113 requires all pilots to “see and avoid” other aircraft, rather than see and encounter them.

Thus, it appears that “law enforcement operations” is the only condition associated with the incident on the surface that presents any hazard to persons and property on the surface or in the air. That being the case, perhaps law enforcement aircraft, and only law enforcement aircraft, should be barred from flight over Standing Rock.

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FAR Parts 101 and 107 have arrived.

August 29 has arrived, and FAR Parts 101 and 107 are in effect. The FAA will be holding a media briefing today at 11:45 EDT, which will be live-streamed. In the meantime, the FAA has gone “live” with Part 107 Waiver Requests on its site, and has added “Remote Pilot Certification” to IACRA. It has also posted “Performance Based Standards, which provides insight into what the FAA will be considering in approving or denying Part 107 Waivers.

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New Rulemaking Creates Uncertainty for Model Aircraft Flyers

With all the media attention focused on the new commercial small UAS rules finally issued by the FAA last week, scant attention has been paid to the changes made by the same rulemaking effort to hobby or recreational flying regulations. But the changes are significant. And worrisome.

The FAA has added model aircraft flying requirements to Part 101 of the Federal Aviation Regulations, adding recreational drone flying to already existing rules for moored balloons, kites and so on. The new regulations basically incorporate statutory language from Section 336 of the FAA Reauthorization and Modernization Act of 2012. But the incorporation is not a simple transfer of statutory requirements to regulatory form. That is because the statutory language of FMRA Section 336 was never directed at model aircraft flyers but at the FAA: “…the [FAA] may not promulgate any rule or regulation regarding a model aircraft…if”, the statute then lists the very requirements that have now been made regulatory. So a requirement that previously only applied to the FAA has been made a regulatory requirement binding on model aircraft flyers.

I would argue that this new rule — disguised as a reiteration of a Congressional mandate — in fact violates the proscription on promulgating new rules. But the likelihood of someone challenging this rule is remote. This means that model aircraft flyers are considered to be operating under Part 101 — instead of Part 107 with its requirement for a remote pilot certificate — only if they can meet each and every one of the specific requirements that Congress enumerated as prohibiting FAA rulemaking:

(1) the aircraft is flown strictly for hobby or recreational use;

(2) the aircraft is operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization;

(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;

(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and

(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

Failing to meet anyone of these requirements, even unintentionally, could expose a hobby flyer to FAA penalties for violating Part 107. Yes, that’s correct. By FAA’s enforcement reasoning, if you don’t meet a Part 101 requirement you will be deemed to be required to operate under Part 107 – which if you happen not to hold a Part 107 certificate or meet the other Part 107 requirements, will subject you to an $1100 per regulation per flight civil penalty.

One concern I have is how exactly do you know whether you’re flying “in accordance with a community based set of safety guidelines” or “within the programming of a community-based organization”? Everyone assumes the AMA fits the CBO definition but the problem is there is no CBO definition. And what if you don’t want to be an AMA member and belong to a different drone group?

The FAA states in the rule’s preamble that a definition of a CBO is beyond the scope of this rulemaking. So that leaves all us hobby flyers uncertain as to whether we will be able to continue to fly our model aircraft as hobby flyers once the new Part 101 and 107 rules go into effect in August.

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