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.