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Who Is Being Fined By the FAA?

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

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

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

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

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

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

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

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

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

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

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

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The FAA’s Drone Registration Requirement: A Brief Review

CHRISTMAS MORNING – SOMEWHERE IN AMERICA

A 12-year old boy opens a large package under the tree as his mom looks on with a tired smile.  “A drone!” the boy exclaims. “Just what I wanted! Thanks, Mom! Can I fly it, now? Can I, please?”

“I’m sorry, hon,” his mom sighs, “but you’re going to have to wait. Daddy’s still on the FAA website.”

And there you have it.  For the first time in the history of Christmas, an agency of the United States government will require you to register your child’s toy before he can begin to play with it.

Why?  Good question.

Section 336 of the FAA Modernization and Reform Act of 2012 contains an express prohibition, that the FAA “may not promulgate any rule or regulation regarding a model aircraft. . . .”  We naively assumed that, when Congress says that an agency “may not” do a thing, the agency indeed “may not” do it.

But nothing will upset the Constitutional order of the Republic faster than a bout of media-driven hysteria. The FAA has taken the position that all drones – including what were traditionally called model aircraft – are “aircraft” within the meaning of the Federal Air Regulations.  Taking its cue from panic over sightings of drones coming too close to manned aircraft, the FAA suddenly decided that 49 U.S.C. § 44102 gives it the authority to require registration of all drones, regardless of whether they are operated recreationally or professionally.

A task force of very capable individuals was quickly set up to provide recommendations to the FAA on drone registration.  Their proposal was subjected to a lightning-fast comment period which, depending on who you ask, may or may not have violated the Administrative Procedure Act.

The Final Interim Rule (a title which leads us to suppose that the rule isn’t FINAL final) on drone registration has been published, here.

The putative purpose of the registration requirement:

The estimate for 2015 sales indicates that 1.6 million small unmanned aircraft intended to be used as model aircraft are expected to be sold this year (including approximately 50 percent of that total during the fourth quarter of 2015). With this rapid proliferation of new sUAS will come an unprecedented number of new sUAS owners and operators who are new to aviation and thus have no understanding of the NAS [National Airspace System – ed.] or the safety requirements for operating in the NAS.

The risk of unsafe operation will increase as more small unmanned aircraft enter the NAS. Registration will provide a means by which to quickly identify these small unmanned aircraft in the event of an incident or accident involving the sUAS. Registration of small unmanned aircraft also provides an immediate and direct opportunity for the agency to educate sUAS owners on safety requirements before they begin operating.

Let’s unpack that last paragraph:

1) The risk of unsafe operation will increase as more small unmanned aircraft enter the NAS.

Well, maybe. The fact is that we don’t really know. Numerous reports of “drone strikes” on manned aircraft have turned out to be false.  In any event, Congress expressly prohibited any “rule or regulation” concerning model aircraft.  We are unaware of the FAA’s authority to circumvent Congress.  Indeed, it is almost laughable that the FAA seized the authority to require registration while claiming, for example, that it lacks statutory authority to waive the airman certification requirement under Section 333 or to waive the registration fee requirement for model aircraft.

2) Registration will provide a means by which to quickly identify these small unmanned aircraft in the event of an incident or accident involving the sUAS.

This makes two very large assumptions, neither of which are likely to be valid.  First, there have been almost no incidents of alleged threats to the NAS in which the offending drone has been recovered.  Without recovery, there will be no identification.

Second, it assumes 100% compliance with the registration requirement.  We frankly doubt that the level of compliance will be anything approaching 100%.  We especially doubt that those who are intent on causing harm or, at least, mischief, are likely to comply.

3) Registration of small unmanned aircraft also provides an immediate and direct opportunity for the agency to educate sUAS owners on safety requirements before they begin operating.

This might be true if the rule had either a point of sale requirement (unworkable) or required a device that prevented the drone from being operated before it was registered (some drone companies build this sort of requirement into their devices).  But the rule does neither.

In addition to being likely ineffective and almost certainly contrary to law, the FAA registry will present a significant likelihood of exposing private data to the public.

The drone registration site is here.

The deadlines for compliance is December 21, 2015 for drones that are intended to be used exclusively as model aircraft but never flown, February 19, 2016 for drones that have been previously operated as model aircraft.

Merry Christmas!

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FAA Publishes Drone Registration Rules

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.

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FAA Grants Section 333 Exemption for Paper Airplane

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.

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About that handgun-firing drone

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

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

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

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

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

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

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

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

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