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FAA Releases New UAS Policy Document

Drone Laws Blog by Antonelli Law

On October 27 2015 the FAA released a new UAS policy document:

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logoFAA

We will be analyzing this released document and its likely effects and commenting soon.

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Another Section 333 Copy/Paste Bites The Dust

Drone Laws Blog by Antonelli Law

Another Section 333 Copy/Paste Bites The Dust

We’ve written before about the hazards of bad Section 333 copy and paste jobs. Number one, they can void your insurance coverage when an accident occurs. Number two they can be rescinded by FAA. If you are not going to hire an attorney to file your Section 333 petition for exemption, please take the time to tailor it to your actual intended operations.

Yesterday, the FAA rescinded the Section 333 approval of a Mr. Thomas Johan Walter. Thomas-Johann-Walter-Rescission

From the FAA public document:

“On June 2, 2015, Mr. Walter submitted a petition for exemption to allow commercial operations of unmanned aircraft, on behalf of Drone Fleet & Aerospace Management, Inc. Mr. Walter was identified in the petition as the CEO of Drone Fleet & Aerospace Management, Inc., and as well as the point of contact; however, the email and mailing addresses provided for Mr. Simon Nielson. On September 2, 2015 the FAA granted the exemption to Mr. Walter and emailed its decision to Mr. Nielson at the email address provided in the contact information section of the petition. On September 2, 2015, Drone Fleet & Aerospace Management, Inc. notified the FAA, stating that Mr. Thomas Walter is not and has not been affiliated with Drone Fleet & Aerospace Management, Inc.

A review of Mr. Walter’s petition shows that Mr. Walter submitted, verbatim, the petition submitted by Drone Fleet & Aerospace Management, Inc. on October 3, 2014,  including the point of contact information on Page 14. Mr. Walter substituted his name for Drone Fleet & Aerospace Management, Inc. in only a few places.”

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In consideration of the foregoing, I find that Exemption No. 12719 was issued based on erroneous information submitted by petitioner and was therefore granted in error. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113 and 44701, delegated to me by the Administrator, Exemption No. 12719 is rescinded effective immediately.”

For another Section 333 rescission example, see this one from August:  Kramer-Rescission-11629

If you would like experienced attorneys to file your Section 333 petition, please contact us through the contact form below or directly at 312-201-8310.

And if you do it yourself, please do not forget to copy, paste, and edit!

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FAA Announces Impending Rule: All Drones And Model Aircraft to be Registered

Drone Laws Blog by Antonelli Law

FAA Announces Impending Rule: All Drones And Model Aircraft to be Registered
Today, the FAA announced that it intends to create a rule effective mid-December 2015 requiring model aircraft and small “drones” to be registered with the agency. Drones are included in the term ‘‘model aircraft’’ which means an unmanned aircraft that is flown within line of sight and for hobby or recreational purposes.
When the Congress gave FAA’s its marching orders in the 2012 FAA Modernization and Reform Act it stated in Section 336 that ” the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft” if it was used for hobby or recreational use. But that is exactly what the FAA seems to have announced today that it would be doing – imposing a regulatory requirement on the operators of model aircraft used for hobby or recreational use by requiring them to be registered.
Therefore, any plan to require registration of model aircraft must foresee congressional support in the form of emergency legislation to be implemented prior to the imposition of this new rule.
If there is no emergency legislation from Congress, we expect the registration rule to be challenged in court.

 

Attorney Jeffrey Antonelli is available for questions regarding this registration requirement by contacting him at 312-201-8310 or by using the contact form below

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The FAA’s Proposed $1.9 Million Fine for SkyPan– Harbinger or Outlier?

Drone Laws Blog by Antonelli Law

The FAA’s Proposed $1.9 Million Fine for SkyPan– Harbinger or Outlier?

While we were in Las Vegas exhibiting at the Commercial UAV Expo, the FAA announced on October 6, 2015 that it is proposing to fine SkyPan International, a Chicago-based drone operator, $1.9 million for repeatedly violating FAA regulations and flying in restricted airspace. The FAA notice states that the company conducted 65 unauthorized flights in the skies over Chicago and New York and alleges that SkyPan operated the aircraft in a careless or reckless manner so as to endanger lives or property. The fine is the largest the FAA has ever proposed against a drone operator — by about $1.9 million.

The facts of the SkyPan case are unique. SkyPan is relatively open about that fact that it has been using drones in its commercial operations, and according to published reports it received a subpoena from the FAA as early as 2013. (http://www.itechsum.com/mashable/item/91128-faa-has-clamped-down-on-realtors-using-drones-for-months). Presumably, the FAA’s detailed information about the 65 unauthorized flights came from SkyPan’s subpoena responses. In 2014, along with several business plaintiffs, SkyPan sued the FAA in the U.S. Court of Appeals for the D.C. Circuit, challenging the FAA’s regulation of commercial drone operations.

Inquiring minds in the commercial drone world want to know if the FAA’s action is the beginning of a campaign against the many businesses that have been engaged in commercial operation of drones without FAA authorization, or just a one-off enforcement action against a company that has publicly flaunted the FAA’s authority and probably gotten under the agency’s skin. It’s too early to tell, but it may not be too long before we find out. Stay tuned.

For more information or to contact us call us at 312-201-8310 or use the contact form below

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Why Many State and Local Drone Laws Will Not Fly

Drone Laws Blog by Antonelli Law

 Why Many State and Local Drone Laws Will Not Fly

 Part One in a Series on Federal Preemption - Mark Del Bianco

The explosive growth in commercial and hobbyist use of drones (a/k/a unmanned aircraft or UAs) is creating fears among citizens and state and local officials about invasions of privacy and possible injuries or property damage. The result is a proliferation of laws and regulations designed to limit or prevent many commercial and personal uses of drones. It is obvious that many of these regulations will be struck down when they are challenged. However, this will be a lengthy, piecemeal process akin to legal whack-a-mole.

For those keeping score at home, or those just looking to predict outcomes, here are the grounds that courts will most likely use to strike down local drone regulations.  I’ll address each of them in more detail in future blog posts. Interestingly, the likely grounds for challenge will shift over time, as more comprehensive federal regulations come into effect and improvements in technology enable longer drone flights and greater payload capacity.

  1. Conflict Preemption

For the next few years, conflict preemption will be the most likely basis for striking down state and local drone regulations. Conflict preemption is a doctrine created by courts to sort out conflicts that regularly arise in the U.S. Under our federalist system of government, legislative bodies at different levels of government can enact laws or regulations that address identical or overlapping issues or behavior. When the laws or regulations impose different requirements, or when one law permits and another prohibits certain behavior, a conflict arises. People and companies affected by these discrepancies need to know what they can and cannot do.   That’s when they ask courts to step in and clarify their obligations.

The federal regulations governing commercial drone use are in flux right now. The FAA has both a process for obtaining one-off exemptions for commercial use of small UA systems (sAUS) (the 333 exemption process) and an ongoing proceeding to establish comprehensive rules for commercial use of sAUS. It hopes to finalize the rules before the end of 2016.

Once the more comprehensive federal rules are in place, conflicts with new and inconsistent state and local laws while inevitably increase. Look for conflicts preemption challenges to state and local laws to proliferate in the next few years. Examples of state enactments that raise potential conflicts preemption issues are the 2015 Virginia drone law and California’s SB 142, which was recently vetoed by Gov. Jerry Brown. The FAA has specifically permitted hobbyists and holders of commercial Section 333 exemptions to make drone flights at altitudes up to 400 feet above ground level (AGL) for a variety of purposes. SB 142 would have made most such flights illegal if they took place in California and were below 350 feet AGL. The potential conflict was clear – SB 142 would have created civil liability for flights that the FAA has already determined to be legal (and which would continue to be legal once the sUAS rules go into effect). Had Gov. Brown not vetoed the bill, a challenge on conflicts preemption grounds would have been swift and likely successful.

  1. Express Preemption

In the ongoing sAUS rulemaking, several parties have asked the FAA to include an express preemption provision in the new rules. Such a provision would affirmatively state that the new federal rules are intended to preempt state laws and regulations applicable to the operation of drones. If the FAA does decide to include a preemption provision – and there is no guarantee that it will – the scope of the preemption language will be crucial. It could range from near-complete preemption to a preemption of just certain types of state regulation, such as flying height restrictions or aircraft marking requirements.

  1. Field Preemption

Another possible basis for a court to strike down a state or local drone law is the doctrine of field preemption. This doctrine is applied when a court concludes that (even in the absence of an express preemption provision) the federal regulatory scheme sufficiently pervades a particular subject area that it was the intent of Congress or the implementing agency for federal law to occupy the entire field and to preclude state or local action. In general, the breadth of any field preemption argument depends on the specificity and comprehensiveness of the federal regulatory scheme in question. The more specific and comprehensive the federal law or regulations, the more likely a court is to find field preemption.

Courts have to date found relatively broad, but not total, field preemption in the federal regulation of aviation. They generally acknowledge the pervasive power of the federal government to regulate aircraft safety and crew qualifications, but have recognized a more limited preemptive scope in areas such as products liability actions. It is safe to say that the strength of any field preemption argument will depend on the scope and comprehensiveness of the sUAS regulations whenever they finally go into effect.

  1. First Amendment infringement

Numerous state and local ordinances are being introduced to address citizens’ privacy concerns and to limit private parties’ ability to use drones to capture data (often referred to in the laws as “conducting surveillance”). There is an inherent tension at all levels of government between privacy and various First Amendment freedoms, including freedom of the press and the right of individuals to gather information, as part of speech or a precursor to it. For example, in recent years, numerous courts have recognized First Amendment protection for videotaping and audio-recording police and private individuals in and around public spaces. The logic of these cases theoretically applies to data acquisition that takes place when a drone is in public airspace, even if the activity about which the data is being acquired is taking place on private property.

There are numerous examples of existing or proposed state laws that are potentially vulnerable to First Amendment challenges. One is House Bill 5 introduced in Georgia this year, which provides that “(a) It shall be illegal for a person to use an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on such individual or property.” This provision is almost certainly unconstitutional, because it imposes overly broad restrictions on fundamental First Amendment rights. It makes the violation dependent on the intent of the actor, singles out one type of technology – UAs – while permitting the use of other types of technology (e.g., ladders, manned aircraft and satellites) to “capture an image” or otherwise conduct surveillance, and does not require that the surveilled party have any, much less a reasonable, expectation of privacy.

The potential for conflicting laws and regulations will only increase over the next few years. Within that period, technological developments will enable longer and autonomous flights by sAUS. Many of these, particularly in large metropolitan areas such as New York, Chicago or Washington, D.C. that border more than one state, while be interstate flights. While the pending FAA regulations will not permit autonomous sUAS flights or flights beyond the operator’s line of sight, the FAA will inevitably revise its rules to permit such flights, probably within 3-5 years. Once the FAA rules are revised, other grounds for striking down state and local laws will come into play. For example, a state that prohibited drones with data acquisition capability (which would be all drones) from flying over private property in the state would arguably violate the Interstate Commerce Clause by imposing unjustifiable burdens not only on a wide swath of interstate commerce originating or terminating in the state, but also on substantial amounts of commerce between other states, commerce which would be burdened by not being able to take a direct route and fly over the enacting state.

About Attorney Mark Del Bianco 

Attorney Mark Del Bianco is Special Counsel to Antonelli Law’s DSC_2812Drone/UAS Practice group. Mark has more than three decades of experience representing clients in federal administrative rulemaking, enforcement proceedings, and court reviews at the DOJ, ITC, FCC, FDA, CPSC, and NHTSA. He has litigation experience ranging from state trial courts to case briefs in the United States Supreme Court, and in recent years has litigated the constitutionality of state laws at the intersection of technology and privacy. He also provides transactional and regulatory assistance to a wide array of clients, including fiber networks, satellite service providers, business owners, application developers and cloud services providers.

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