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29

Oct,2015

Liability in the Dynamic Airways Boeing 767 Engine Fire

Let’s discuss liability in the Dynamic Airways Boeing 767 engine fire that occurred at the Fort Lauderdale/Hollywood International Airport on October 29, 2015. The plane, a Boeing 767 bound for Caracas, Venezuela, had a serious engine fire while taxiing for departure on Taxiway B. According to the Air Traffic Control (“ATC”) feed, everything happened relatively quickly. The aircraft behind the Dynamic 767 informed ATC that the “live” engine was leaking what appeared to be fuel. Moments later, that engine and a large portion of the port side of the aircraft were engulfed in flames. Fortunately, Broward County Fire Department responded to the scene and all passengers were able to evacuate within six minutes via the aircraft’s emergency exit slides. What is unfortunate, however, is that more than 20 people were injured, landing at least one passenger in the ICU with serious burns and one child injured. Furthermore, the Fort Lauderdale/Hollywood International Airport was closed for an indefinite period while emergency teams and airport administration contained the situation.

 

Time and time again, we are told that the most dangerous part of flying is “the drive to the airport.” Today, for some unfortunate souls onboard the Dynamic 767 bound for Caracas, that saying was a colossal farce. So who is to blame? Who do we hold responsible for the fact that some Dynamic passengers took a ride in an ambulance rather than an airworthy Boeing 767? Can those individuals have any redress for the injuries that they have sustained?

 

As of right now, it is too soon to tell who is at fault. Was it the airline, the pilots, the mechanics, ground crew, aircraft/engine manufacturers, and/or some unknown entity? It’s hard to say this early into the investigation. However, there is at least one early indications that seemingly spells disaster for both Dynamic Airways’ and the engine manufactures…the fuel leak. The two primary questions about the fuel leak are: what caused the leak and did the leak have anything to do with the fire? From there, an apportionment of blame can begin to sort itself out.

 

Well, what does “the blame game” have to do with potential torts in Dynamic Airways’ engine fire? Think of it this way. If the fire was caused by some sort of design defect in the engine, there may be a potential claim for strict product liability against the engine’s manufacturer. This theory of damage recovery allows the plaintiff to avoid showing negligence on the part of the manufacturer. Instead, the mere fact that the product was defective and caused injury is sufficient to allow the plaintiff to sue. Depending on the law in your state, for the most part, a strict liability claim will have four elements: 1) the defendant must be a merchant; 2) the product is defective at the time it is sold by the defendant; 3) the product is unreasonably dangerous; 4) the plaintiff suffers personal injury or property damage caused by the defective property. In the scenario where the engine was improperly designed, those injured on the Dynamic flight could potentially have a case using the strict liability theory.

 

Think of another scenario where the pilots of the Dynamic Airways’ 767 knew of the fuel leak and did nothing to correct or investigate the issue. In this scenario, you will likely have to also assume that the leak had something to do with the fire. This situation speaks to the tort theory of negligence. Negligence is an unintentional tort involving carelessness that causes harm. Generally, the tort of negligence requires the plaintiff to meet 4 burdens: 1) the defendant owed the plaintiff a duty of care; 2) the defendant breached that duty of care; 3) the defendant’s breach is the proximate cause of the plaintiff’s injury; and 4) the plaintiff suffers injury that is protected under the law. In the scenario of pilot negligence, you could see where those individuals injured on the flight could say that the pilot owed a duty and that the pilot breached that duty by not seeing to it that the leak was corrected, thus causing their injury. You could also see that in the world where a mechanic incorrectly/failed to fix/diagnose/maintain the engine, the injured parties could work up a case for negligence.

 

Nonetheless, those with significant injuries do not want to sue pilots and mechanics for their catastrophic injury. Why? Simply put, these aren’t the people with the money. Rather, the pilots and the mechanics would rather need to worry about a FAA Enforcement Action being brought against them in that sort of situation; however, that is not to say that they could not also be sued for negligence.

 

As the investigation continues, it will be possible to give more poignant analysis on the situation. None of the above is to be considered legal advice, rather brief legal musings on the details as reported. There are a lot of moving parts to be considered in a case such as this (like will the Montreal Convention come in to play, etc)…much of which are too lengthy to recite in a blog article. If you have questions about the Dynamic Airways Boeing 767 engine fire, call an aviation attorney at The Ison Law Firm…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

28

Oct,2015

Operating A Drone Near An Airport: A Guide

In order to avoid ending up on the nightly news or worse, the FAA’s list of civil penalty recipients, it’s a good idea to have at least a cursory understanding of the regulations/rules in place for operating a drone near an airport. There are so many UAV operators out there right now that don’t know how to go about legally operating their drone near an airport and/or what interaction they need to have with the airport/ATC/FAA before doing so. Most of the problem is that the FAA/DOT has dropped the ball and has failed to make crystal clear rules for UAV operators. Instead, drone operators are treated like the red-headed step-child of the aviation community and forced to second guess every move they make. As of right now, there are at least three things required for flying a drone: 1. Aircraft; 2. Controller; 3. A prayer that your operations are legal. Be that as it may, the following will hopefully guide your Section 333 operation toward being legal, should you need to fly your drone near an airport.

 

So what are the general rules? The golden rule from the FAA on UAV operations near airports is: don’t fly within 5 miles of an airport unless you contact the airport and control tower before flying. To that end, the FAA requires that a drone not be flown within 3 NM from an airport with a published instrument flight procedure, but not an operational tower, or 2 NM from an airport without a published instrument flight procedure or an operational tower, or 2 NM from a heliport with a published instrument flight procedure. That seems pretty simple…right?

 

The main question becomes: what do I do if I need to go within the area prohibited for UAVs? Let’s say for example you run a wedding photography business and your client is getting married at an outside venue and requires aerial footage. Luckily, you have a Section 333 Exemption and all of the necessary documentation to operate your drone commercially. But wait a minute…the wedding venue is within 5 NM of an airport with a published instrument flight procedure and operational tower. The first thing you will want to do is find the number for the Air Traffic Control tower at issue. The telephone numbers for most Air Traffic Control towers are available online at www.acukwik.com. When you call ATC, be prepared to supply them with your flight path and the location, date, and time of your requested operation. For example, you might call and say, “Good Morning, my name is Bill Smith and I plan to fly my 3D Robotics UAV over the Sable Wedding Pavilion tomorrow at 9:30 AM. I will circle the area for roughly 45 minutes at approximately 150 feet.” Generally, you will want to tell ATC who you are, what you are going to fly, where you want to fly it, and when you want to fly it. Make sure that you actually obtain permission from ATC before flying within their airspace. You may even want to provide ATC with your cell phone number so that they can get in touch with you if necessary.

 

Secondly, the FAA calls for drone operators to contact the airport before entering its airspace to conduct a drone flight. Most importantly, there will be times where you may want to fly within 2 NM of an airport with a published instrument flight procedure and no ATC tower, in which case you will only have to call the airport. Who do you call at the airport? The best person(s) to call at an airport for legal purposes would be the office of the airport administrator. Essentially, these are the CEOs of the airport. Again, you will want to advise this office of your flight path and the location, date, and time of your requested operation. If you cannot get ahold of anyone at the office of the airport administrator and you are working with a general aviation airport, you may want to try calling the fixed based operator (“FBO”). A FBO is typically the entity that provides fuel, pilot services, and aircraft services, etc. You can typically find the telephone number to both the office of the airport administrator and FBO online at www.airnav.com.

 

For consistent flight within the 5 NM barrier, the airport administrator may request a letter of agreement between you and the airport. In most cases, this is not necessary and is something that the FAA will not require. If an ATC tower or airport administrator, consult with your drone attorney or Section 333 attorney.

 

You will also note that restrictions are placed on airports with a published instrument approach. Most airports have some sort of instrument approach associated with one of its runways, be it a GPS approach, ILS approach, VOR approach, etc. Typically, you can determine whether a particular airport utilizes an instrument approach by reviewing the airport specifics online at www.airnav.com.

 

Maybe you have also heard of the term “No Drone Zone.” There are some areas in the country, such as Washington, D.C., in which the FAA explicitly prohibits the operation of UAVs. It is critical to make sure that the airport and area in which you want to fly are not under such a flight restriction. If so, you had better make other plans for your operation’s flight path.

 

And one last thing that all UAV pilots should always remember when flying, whether or not within an airport’s drone-restricted airspace, is to ALWAYS remain clear of other aircraft. While there haven’t been any conclusive tests completed to prove that a small unmanned aerial vehicle could cause catastrophic harm or any harm at all to a general aviation or commercial aircraft, it is highly advised that you not be the drone operator to test the theory. Such unauthorized drone operation could result in property damage, death, and/or FAA civil penalties for unauthorized UAV operation.

 

If you have any questions about how to operate within an airport’s drone-restricted airspace, be sure to call a drone attorney at The Ison Law Firm. Or, if you feel that you have violated a rule or regulation mentioned in this article, feel free to reach out. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

 

 

27

Oct,2015

Pilot Deviation Penalties

Pilot deviation penalties can be stiff. What is a pilot deviation? A pilot deviation is an action of or by a pilot that results in a failure to comply with an ATC clearance and/or instruction. The penalties for pilot deviations can range anywhere from a FAA Administrative or Enforcement Action, a “709” ride requirement, or even death. Possibly the best (and worst) example of how disastrous a pilot deviation can be comes from the deadliest aviation accident in history…the Tenerife Airport disaster.

 

On March 22, 1977, at the Los Rodeos Airport (now Tenerife North Airport) in the Canary Islands, two Boeing 747s collided on the runway causing the death of 583 people. At the time of the accident, the Tenerife airport was under dense fog and the taxiways were congested with overflow traffic. Immediately after lining up, the Captain of KLM Flight 4805 advanced the throttles and the aircraft started to move forward. The First Officer advised the Captain that ATC clearance had not yet been given, to which Captain Veldhuyzen van Zanten responded, “I know that. Go ahead, ask.” First Officer Meurs then radioed the tower that they were “ready for takeoff” and “waiting for our ATC clearance”. The KLM crew then received instructions which specified the route that the aircraft was to follow after takeoff. The instructions used the word “takeoff,” but did not include an explicit statement that the flight was “cleared for takeoff.”

 

First Officer Meurs read the flight clearance back to the controller, completing the read-back with the statement: “We are now at takeoff.” Captain Veldhuyzen van Zanten interrupted the First Officer’s read-back with the comment, “We’re going.” The controller then immediately said “OK” followed by “stand by for takeoff, I will call you,” indicating that he had not intended the clearance to be interpreted as a takeoff clearance. Unbeknownst to the KLM crew, Pan Am Flight 1736 was not clear of the runway. As a result, the two 747s collided, causing the deadliest aviation accident in history.

 

Let’s use this disaster to learn more about pilot deviations and their associated penalties. As evidenced by the Tenerife collision, the most important thing to know is that pilot deviations can be deadly. Some pilots may be able to stomach a potential FAA Enforcement Action brought against their certificate, but there is not one pilot on this planet that could stomach the death of passengers, crew, and those on the ground. While it may be easy to think “ATC probably won’t notice my screw up if I fly at 25,000 feet instead of 24,700 feet,” or “the FAA won’t ding me for such a small deviation,” you MUST remember that a simple deviation such as that could be the difference between life and death.

 

However, let’s say for example that the two Boeing 747s at Tenerife managed to avoid collision. Maybe KLM Flight 4805 was able to prematurely rotate and get airborne before striking Pan Am Flight 1736. What would the penalty be for a deviation like this? There were no fatalities. There was no property damage. There was, however, potential for disaster…which is what the FAA is concerned about. In this scenario, the FAA would likely initiate investigation and potentially administrative or enforcement proceedings. There is a litany of Federal Aviation Regulations that the FAA would claim the crew violated, however 14 C.F.R. §91. 123 and 14 C.F.R. §91.13 are used most often. §91.123 speaks to compliance with ATC clearances and instructions and §91.13 speaks to careless and reckless operations. Note that the §91.13 “careless and reckless operation” card is one that the FAA regularly plays, ancillary to other FAR violations. The penalties to such violations could include no action, a warning notice or letter of correction, a “709” ride, certificate suspension, civil penalties, and even certificate revocation.

 

If you are the subject of a FAA investigation, administrative or enforcement action, or civil penalty, make sure you contact an aviation attorney to speak about your possible defenses. In most cases, filing a NASA report is a good idea if you deviated from ATC clearance or instruction. If you have any questions about pilot deviation penalties and defenses, call an aviation attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

22

Oct,2015

Do I Need A Pilot’s License to Get a Section 333 Exemption?

The first question most people seem to have about getting a Section 333 Exemption, is “do I need a pilot’s license to get a Section 333 Exemption?” This is an especially good question for people that want to use their drone for things like photography, real estate surveillance, agriculture, and filmmaking, because these folks typically don’t have a pilot’s license and consequently, they don’t want to go spend $14,000 on a private pilot’s license just to operate their drone commercially. The answer to the question, however, is that you DO NOT need a pilot certificate in order to OBTAIN a Section 333 Exemption from the FAA.  Nonetheless, the FAA requires that the person operating a drone under your Section 333 Exemption have at the bare minimum a Sport Pilot Certificate and a valid U.S. Driver’s License. This means that if you don’t have a pilot’s license, you can still get your Section 333 Exemption and then hire someone with a Sport Pilot Certificate to operate your drone for you. The following will outline your options if you don’t have a pilot’s license but still want to get a Section 333 Exemption for your drone operation.

 

First, you have to look at the economic and utilitarian side of going out and getting a pilot’s license. Do you have three to five months that you can dedicate to studying course material, taking lessons, and learning a new skill? Do you have the funds to get the license? Would having your license be useful to you in your personal life or business (other than for operating your drone)? If the answers to these questions are “yes,” you may want to carefully consider getting a pilot’s certificate for your Section 333 Exemption. And remember, you don’t have to have your pilot’s certificate at the time you send your Section 333 Petition to the FAA. Rather, you just have to have the certificate by the time you go out to operate your UAV as pilot-in-command.

 

So, if you decide that you DO want to get your pilot’s certificate, what is the most cost effective and efficient way to go about it for Section 333 purposes? There is an old wives’ tale out there that getting a Lighter-Than-Air Certificate (i.e. blimps and hot-air-balloons) is the fastest and most cost effective way of getting a certificate for Section 333 purposes. The ideology behind this theory is supported by the fact that a Sport Pilot, Lighter-Than-Air, Balloon, Certificate only requires 7 hours of training. While in some worlds this theory could be true, you will likely find that it is more difficult to actually locate a facility that can give out these types of certificates, let alone cheaply and quickly.

 

Nonetheless, if all you want to do is be legal while operating your drone and you are afraid that you won’t be able to get a FAA Medical Certificate, your best route is to get a Sport Pilot Certificate. The Sport Pilot Certificate for airplanes and helicopters requires a minimum of 20 training hours. The Sport Pilot rule allows a pilot to fly light-sport aircraft without the need for an FAA medical certificate. However, a sport pilot must hold at least a current and valid U.S. driver’s license in order to exercise this privilege. The caveat to obtaining a Sport Pilot Certificate is that there are a lot of restrictions placed upon operators with these certificates. In that, airmen with a Sport Pilot Certificate cannot go into certain airspaces, cannot fly at night, cannot carry more than one passenger, go faster than 87 knots, etc.

 

If you have a little more time to devote to training and a little more money to throw at the situation, you may be interested in obtaining a Private Pilot Certificate. The minimum number of training/solo hours required for this certificate is 40 hours and you will have to be able to pass the FAA Third Class Medical exam. While this process of obtaining this certificate is definitely more involved, there are significantly less restrictions placed upon you than those with a Sport Pilot Certificate. You can take passengers, fly into complex airspaces, go day or night, etc. Essentially, your wings aren’t clipped when you have a Private Pilot Certificate.

 

But what if you don’t have any desire in obtaining a pilot’s license but you still want to fly your drone for commercial purposes? As mentioned above, the best route for you is to either hire someone with a Sport Pilot Certificate or find a bored pilot down at your local airport to come fly for you. Some pilots may even be willing to fly your drone for free – just to have the thrill of flying a cool drone! But remember, you can still change your mind and decide to get your pilot’s license after getting your Section 333 Exemption, thus allowing you to operate your drone.

 

If you have any questions about this murky area of the Section 333 Exemption process, feel free to call a drone attorney at The Ison Law Firm. We can walk you through the process and help you develop a strategy that is best for you and your operation. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

21

Oct,2015

FAA Drone Registration Rulemaking Process: Will They Make It In Time?

The FAA drone registration rulemaking process may be more involved than Anthony Foxx and Michael Huerta are letting on. On October 19, in a joint news conference, the two aviation “bigwigs” announced their proposal to develop a drone/UAV registration system. This, of course, is the government’s response to ever-happening incidents between drones and other aircraft in the National Airspace System. In order to do so, the Department of Transportation and the Federal Aviation Administration have put together a “task force” of drone industry leaders to develop the new registration “rules” by November 20, 2015. You read that correctly. The FAA thinks it can answer the National Airspace System’s drone problem in just one month. Beyond that, Foxx and Huerta expect to have these rules implemented “sometime in December.” Clearly, this is a knee-jerk reaction to the FAA’s expectation that close to a million drones will be sold over the course of the holiday season. There’s nothing like taking a relatively complex problem and finding a solution as quickly as possible (no matter how sloppy and poorly thought out the solution will be). Be that as it may, is it even possible for the FAA to hit the December deadline?

 

Let’s walk through how the FAA rulemaking process works and make a prediction as to whether or not the new drone regulations will be ready by December. Normally, the FAA will utilize what’s known as notice-and-comment rulemaking. In this situation, in order to create a new rule or Federal Aviation Regulation, the FAA must issue to the public a document known as a Notice of Proposed Rulemaking (“NPRM”). The NPRM explains things such as the need, the source of authority, and the reasons for the proposed rule. Once the NPRM is issued, the FAA must allow a period of time for public comment upon the rule. For instance, if the FAA wanted to create a new rule on how to manage wildlife at an airport, they would have to release the NPRM and then give the public a period of time to comment on the potential rule. Who would comment? In this situation, maybe an airport director would comment that such a regulation is “impractical for day-to-day wildlife management” but an animal trapper might say “this is a useful regulation for trappers.” Nonetheless, anyone that cares to comment is allowed to do so. Most of the time, the comment period is shorter than the public would like (only 30 days), so the public will petition the FAA to have the comment period stay open for longer.

 

The Administrative Procedure Act (“APA”), the go-to text on administrative law, indicates that the notice-and-comment process allows for changes to be made to the proposed rule based on the public comments received. Nonetheless, the courts have required that any changes made in the final rule be of a type that could have been reasonably anticipated by the public – a logical outgrowth of the proposal. If a change is not a logical outgrowth of the proposal in the NPRM, an agency is required to provide the public with a further opportunity for comment.

 

Once this process is completed, the FAA then issues its Final Notice of Rule Making (“FNRM”). In doing so, the FAA Administrator will review and analyze the comments received and decide whether to proceed with the rulemaking proposed, issue a new or modified proposal, or take no action on the proposal. At this point, the final rule is published in the Federal Register and a copy is placed in the rulemaking docket. Essentially, anyone that disagrees with the final rules or accompanying analysis issued by the Administrator may file a petition for reconsideration explaining why they believe the administration is wrong. The Administrator will then issue an order granting or denying the petition. Alternatively, as long as the Administrator has addressed an issue, the parties who disagree with a rule that affects them may seek court review of the decision. We predict that there will definitely be some judicial review of the new UAV registration regulations.

 

The foregoing is the process that would be involved if the FAA were going about the drone registration regulation in the “normal” fashion. Seemingly, that is not what is happening here. Instead, the FAA and the DOT are treating drone registration as an emergency situation. It’s not as if they haven’t known for some time that they needed to come up with a solution for integrating drones/UAVs into the National Airspace System. Again, the best solution is rarely the solution that is developed in a month’s time.

 

Nonetheless, the APA permits a pseudo emergency rulemaking process, where the FAA can finalize rules without first publishing the proposed rules in the Federal Register. This exception, however, is limited to cases where the agency has “good cause” to find that the notice-and-comment process would be “impracticable, unnecessary, or contrary to the public interest.” These situations usually include emergencies where problems must be addressed immediately to avert threats to public health and safety, minor technical amendments, and corrections where there is no substantive issues, and some instances where the FAA has no discretion to propose rules because Congress has already directed a specific regulatory outcome in a law. However, the FAA must state its reasoning for finding good cause in the preamble of the final rule, published in the Federal Register.

 

So what are our predictions? Will the FAA be able to get these regulations out by the December deadline? It’s hard to say. There are a few hurdles that the administration will have to get over. First, will the “task force” of drone industry leaders be able to come up with a palatable plan? This plan would have to account for the process of registering drones, how registered drones will be tracked, the consequences of not registering a drone…and the list goes on. Once the “task force” finally answers these hard hitting questions (in a month), will the FAA (a government agency) be able to efficiently and effectively administer and issue the new regulation by December? It remains to be seen. All that can be said right now is that the FAA knew that this was coming and they chose to wait until the last minute. Whether or not they will be able to come up with a quality regulation by December is going to be an interesting process to watch.

 

If you have any questions about the new UAV regulations, the FAA rulemaking process, how to obtain a Section 333 Exemption, or any other aviation law question, please contact a drone attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

20

Oct,2015

FAA Civil Penalties for Drone Operators – Everything You Need To Know

On October 19, 2015, DOT Secretary Anthony Foxx and FAA Administrator Michael Huerta revealed the news that essentially recreational drone pilots will need to register their drones with the government before the end of the year. These new registration requirements are largely in response to the numerous complaints of “close calls” with UAVs and other aircraft. Anthony Foxx said that “[r]egistration will reinforce the need for unmanned aircraft users, including consumers and hobbyists, to operate their drones safely. It’s hard to follow rules if you don’t know what the rules are…this will help us enforce the rules against those who operate unsafely by allowing the FAA to identify the operators of unmanned aircraft…we want to ramp up on enforcement.” The key words here are: we want to ramp up on enforcement. Essentially, enforcement means civil penalties. In other words, we are seeing that the FAA wants to make the skies safer AND they want to build up their bank account while they’re at it. So what does this mean for you?

 

The following is for commercial drone operators and hobbyists alike. In this article, you will learn:

1. What a FAA civil penalty is

2. What to do if you are the subject of a civil penalty

3. How to avoid civil penalties in the future

 

What is a FAA civil penalty? To answer this question, you must start with the broader term of “FAA enforcement action.” When the FAA believes that a certificate holder (i.e. an airman, air carrier, repair station or otherwise) has violated a Federal Aviation Regulation (“FAR”), it may pursue enforcement action against the offending party. At this point, an enforcement action essentially branches off into two subdivisions: certificate actions and civil penalties. A certificate action or proposed certificate action is usually when the FAA seeks to suspend or revoke a certificated person’s license, as a penalty for violating the FARs.

 

Alternatively, the FAA could also seek to impose a civil penalty upon a person or entity operating contrary to the FARs. Civil penalties are likely more appropriate for recreational drone operators because recreational drone operators typically don’t hold a certificate that can be revoked or suspended. As such, civil penalties are can be imposed against companies, entities, and individuals alike. How much are you looking at per violation? The FAA determines the amount of the civil penalty using a Sanction Guidance Table, which provides ranges for civil penalties based upon the type and size of the certificate holder, the type of alleged violation, and the number of alleged violations. A proposed civil penalty for anything over $50,000, leaves the FAA’s jurisdiction and is prosecuted by the United States Attorney’s office. But watch your clock! The FAA must bring the proposed civil penalty against you within 2 years of discovering an alleged violation of the Federal Aviation Regulations.

 

What do you do if you are the subject of a civil penalty? First, if the FAA believes that you violated a FAR, they will send you a “Notice of Proposed Civil Penalty.” In the notice, there will be a recitation of the relevant facts, which FARs you allegedly violated, and the cost of the proposed civil penalty. When you read the letter, your gut instinct will be to call the investigator of record and tell him or her why you should not have to pay the civil penalty. Don’t do this.

 

Have you ever watched the television program called COPS? Usually, a police officer will be arresting a suspect for selling drugs and while the police are putting him in handcuffs, the suspect says, “I shouldn’t be arrested; I use drugs but I don’t sell drugs!” All the while, you are sitting there, screaming at the TV, saying “anything you say can be held against you in a court of law!” Maybe you aren’t a nerd like we are while watching COPS. Nonetheless, your situation with the notice of proposed civil penalty is very much like the drug dealer’s situation on COPS. Anything you tell the FAA investigator, can and will be used against you during the course of your enforcement action. So, your first step should ALWAYS be to call your aviation attorney…let him or her respond to the FAA on your behalf.

 

That being said, you have roughly seven options when it comes to responding to the notice of proposed civil penalty. First, you can outright pay the civil penalty and be done with the whole situation. Beyond that, your attorney can send a letter showing that either you did not violate the FARs, you are not able to pay the proposed civil penalty, or that the penalty fee should be lowered. Ultimately, what you may consider doing is essentially fighting the penalty in a formal evidentiary hearing before an Administrative Law Judge (“ALJ”). If you chose to go this route, the ALJ will decide issues of fact and law and will determine whether, and in what amount, a civil penalty will be assessed against you. A formal hearing before an ALJ is very similar to a trial…like on Law & Order.

 

Every civil penalty is like a snowflake. Every case is different. Every drone operator is different. Every set of facts are different. Essentially, if you are sent a notice of proposed civil penalty, you should speak with your drone attorney about what the best way of moving forward with your case would be.

 

How can you avoid civil penalties in the future? The simple answer is: pay attention to the FARs and use common sense. A good rule of thumb would be that a drone that is flown strictly for hobby or recreational must be:

 

*operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;

*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;

*operated in a manner that does not interfere with and gives way to any manned aircraft;

*not flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower…with prior notice of the operation;

*flown within visual line sight of the operator.

 

If you have questions about how to legally operate your drone, if you are the subject of a FAA civil penalty, looking to operate your drone commercially, or just want to chat, call a drone attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

15

Oct,2015

“Pilot-In-Command” Insurance Exclusions

 

Most prudent pilots know that accidents happen. Despite expensive training and exercising an abundance of caution, the unexpected can happen…which is one reason why pilots purchase accidental death and dismemberment insurance. Did you know, however, that sometimes your accidental death policy will exclude coverage for accidents occurring when you are acting as a “pilot or crewmember” of an aircraft involved in an accident? This means that if at the time of an aviation accident that causes your death, you are the pilot-in-command or crewmember of an aircraft, your loved ones will be denied the coverage offered under your policy.

 

But for general aviation pilots, there can be a fine line between when you’re acting as a “pilot or crewmember” and when you are just a passenger with a pilot’s license. For instance, what is one to do in the flight instructor/instrument student situation? If an aircraft requires only one pilot and there are two licensed pilots at the controls, how can an insurance company determine who was acting as a “pilot” or “crewmember” on that particular flight? Better yet, at what point during the flight will the insurance company base its determination of whether or not the insured is acting as “pilot?” State and federal courts alike have struggled to answer this question – as nearly every court has a different stance. Perhaps one of the “better” cases for pilots, and a position which every court should adopt, comes from the Federal Court of Appeals, 11th Circuit, in Jordan v. Natl. Acc. Ins. Underwriters Inc., 922 F.2d 732 (11th Cir. 1991). The following will review the facts of this case and the court’s holding.

 

“James Jordan obtained his private pilot’s license in 1976 and his instrument rating in 1978. He accumulated over 600 hours of flight time in private aircraft and was part owner of a six-seat Cessna Centurion. This aircraft was equipped with dual controls so that it could be flown from either of the two front seats. The left front seat was designated the pilot’s seat and the right front seat the co-pilot’s or passenger’s seat. In November 1986 Jordan hired Jack Page, a professional flight instructor, to give him a refresher course in instrument flying. Page was a highly experienced pilot who had flown more than 9,000 hours in military and civilian aircraft.

 

On the day of the crash Jordan made arrangements for himself and Page to take his plane up for instrument practice. He called the FAA to obtain a weather briefing and file a flight plan. He performed a pre-flight inspection of the aircraft, taxied to the runway, and took off. As Jordan and Page flew from Birmingham to Montgomery, Jordan sat in the pilot’s seat and handled all the flight controls without assistance from Page. After landing in Montgomery the two men took off again to practice instrument approaches. Again, Jordan performed all of the pre-flight procedures, sat in the pilot’s seat, and handled all the flight controls alone. As he maneuvered the plane on the practice landing approach he wore “floggles,” which allowed him to see only the aircraft’s instruments.

 

The plane suddenly lost power while it was on final approach. Page immediately engaged his set of flight controls and took over the throttle and the control wheel. He instructed Jordan to switch fuel tanks and engage the fuel pump boost as part of the emergency procedures for a loss of power. Page attempted to guide the plane back to the Montgomery airport, but it struck power lines and crashed. Page survived the crash but Jordan was killed. Approximately 30 seconds elapsed from the time that Page took control of the aircraft until impact. Page did not operate any of the flight controls that day outside of that 30 second period.”

 

In this case, Jordan’s estate sued because accidental death and dismemberment benefits were denied based on the following exclusions in Jordan’s policy:

 

“SECTION II DESCRIPTION OF COVERAGE: Subject to the conditions, limitations and exclusions of the policy, the insurance granted hereunder shall apply to the injuries sustained by an Insured Person anywhere in the world provided that aviation coverage shall be limited to riding as a passenger (and not as a pilot or member of the crew) in any previously tried, tested and approved aircraft. (emphasis added).

SECTION IV EXCLUSIONS: The policy does not cover an Insured Person for any loss caused by, contributing to or resulting from…injury sustained while, or in consequence of, riding as a passenger or otherwise, in…any vehicle or device for aerial navigation other than as provided by Section II, Coverage.”

 

The Insurance Company advanced two principal contentions relating to interpretation of the policy on summary judgment and at trial: (1) the policy required that the status of an insured person as passenger, pilot or crew member be established at some point during the flight before the death or injury occurred (i.e. before the so-called moment of impact); and (2) even if the insured person’s status was to be determined at the moment of impact, Jordan’s actions during the flight nevertheless established that he was a pilot or crew member and therefore was not entitled to coverage.

 

The district court, applying Alabama law, rejected each of these contentions and ruled for Jordan. First, the court held that the policy was ambiguous, and, construing it against its drafter as required by Alabama law, it determined that an insured’s status must be determined at the moment of impact. Secondly, the court held that Reliable had not met its burden of proving that Jordan was a pilot or crew member at the moment of impact and that therefore the policy covered him at the time of his death.

 

Some courts in the United States have held that the determination of whether the insured was acting as a “pilot” or “crewmember” must be determined by the tasks that the insured had while on the flight. For instance, if the insured gathered weather information, talked on the radios, did the preflight check, etc., he or she may have been the “pilot” on that flight. Keyser v. Connecticut Gen. Life Ins. Co., 617 F. Supp. 1406, 1413 (N.D. Ill. 1985). In Jordan v. Natl. Acc. Ins. Underwriters Inc., however, the Court says that the insurance company could have limited coverage by defining the key terms in the policy so as to expressly rule out the moment of impact test. It could have defined “pilot” as “any person who operates any flight control at any time during the flight in question,” but it did not. As a result, the Court etched out the moment-of-impact rule, where the insurance company must determine “pilot” or “crewmember” status at the time of the accident.

 

What does all this mean for you? First, know what your accidental death and dismemberment policy says. What are the exclusions? How does it define “pilot” or “crewmember?” Secondly, know what the state of the law is on this issue in your state. An aviation accident is a very unfortunate occurrence; however, it can be much worse for your family if they have to wrestle with insurance companies after you are gone. If you have any questions, feel free to contact an aviation attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

 

08

Oct,2015

Avoiding Civil Penalties for UAV Operations: Don’t Be the Next SkyPan International

As you may or may not know, the Federal Aviation Administration recently announced that it is expecting to fine SkyPan International, a Chicago-based drone company, a whopping $1.9 million for “endangering the safety of [American] airspace.” The announcement of this incredible enforcement action seems to be the FAA’s warning to the public that unauthorized UAV operations will not be tolerated. Many of us in the drone community were expecting this eventual crackdown on unauthorized drone use – but maybe not to this magnitude. Nonetheless, this announcement is coming at a curious time – right before the holiday season (during which the FAA expects that over a million drones will be sold). As such, everyone from Corporate America to Little Billy with a DJI Phantom 3 on his Christmas list, is shaking in their boots wondering if they will be the next SkyPan International – with a debt of close to $2 million. But don’t worry; if YOU employ some of the following precautions in your UAV operations, you can attempt to shield your pocketbook from the FAA and its civil penalty wrath.

 

The first thing to know is that the $1.9 million fine is the result of 65 unauthorized flights, which SkyPan conducted within New York and Chicago’s airspaces over the course of a two year period. Essentially, these were hobbyist flights because during this period, SkyPan did not have a Section 333 Exemption. So what does that mean to you? First, if you are operating your drone for commercial purposes, get a Section 333 Exemption now. Secondly, whether you are a hobbyist or commercial operator, you need to know exactly where/how you can and cannot fly your UAV. Thirdly, remember that while it is against regulations to violate certain airspaces and that you would likely be subject to penalties for doing so, it’s likely you won’t be the subject of a $1.9 million fine for a one-time accidental flight above 400 feet. It will all depend on where you are and what you are doing – it took SkyPan 65 flights over congested airspace to hit the $1.9 million mark. So, let’s go through each step of protecting yourself.

 

First, all commercial UAV operators must have Section 333 Exemption from the FAA. Let’s say that together: ALL COMMERCIAL UAV OPERATORS MUST HAVE A SECTION 333 EXEMPTION FROM THE FAA. What is a Section 333 Exemption? A Section 333 Exemption essentially gives an individual or entity relief from certain FAA regulations. For example, an individual seeking a Section 333 Exemption may request to be exempt from the following Federal Aviation Regulations:

  • 14 C.F.R. §91.121: which provides guidelines for the use of altimeter settings while operating an aircraft
  • 14 C.F.R §91.119(c): which provides that except when necessary for takeoff or landing, no person may operate an aircraft below an altitude of 500 feet above the surface. Furthermore, this section provides that an aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.
  • 14 C.F.R. §91.7(a): which prohibits the operation of civil aircraft unless it is in airworthy condition
  • 14 C.F.R. §§ 61.101(e)(4) and (5) which prohibits recreational pilots from receiving compensation for hire or providing flight services in furtherance of a business
  • 14 C.F.R. §91.151(a)(1): which provides that no person may begin a flight in an airplane under VFR conditions with less than 30 minutes of reserve fuel

As you can see, the Section 333 Exemption keeps commercial operators from having to jump through various FAA hoops. As such, if you are a hobbyist, you don’t have exemption from these regulations and must adhere to these rules…which SkyPan International did not.

 

Secondly, the friendly, blue skies are not the wild, wild west. A drone operator cannot switch his or her drone to the “on” position and takeoff to photograph the Empire State Building at 1,200 feet. No, instead, whether you are a commercial drone operator or hobbyist, you must adhere to certain altitude and area restrictions. For commercial operators with a Section 333 Exemption, the FAA will typically allow UAV operation up to 400 feet for aircraft that weigh less than 55 pounds, operating during daytime Visual Flight Rules (VFR) conditions, operating within visual line of sight (VLOS) of the pilots, and staying certain distances away from airports or heliports:

  • 5 nautical miles (NM) from an airport having an operational control tower; or
  • 3 NM from an airport with a published instrument flight procedure, but not an operational tower; or
  • 2 NM from an airport without a published instrument flight procedure or an operational tower; or
  • 2 NM from a heliport with a published instrument flight procedure.

As for hobbyists, the altitude and airspace restrictions are similar if not identical. According to the FAA Modernization and Reform Act of 2012, a drone that is flown strictly for hobby or recreational must be:

  • operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
  • 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;
  • operated in a manner that does not interfere with and gives way to any manned aircraft;
  • not flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower…with prior notice of the operation;
  • flown within visual line sight of the operator.

The general rule is to use common sense. Beyond that, if you are a hobbyist, make sure you stay within all Federal Aviation Regulations, especially those requiring altimeter and transponder equipment. If you study the SkyPan case, you will notice that the FAA specifically cites the company for flying within certain airspaces without transponder or altimeter equipment. Remember, if you are a hobbyist, you don’t have the leniency of someone operating under a Section 333 Exemption. Read up on the Federal Aviation Regulations and know the rules before you fly.

 

Everyone makes mistakes. If you operate your drone contrary to the above regulations, don’t panic – you likely won’t get hit with a $1.9 million fine. If you have any questions about where you can and cannot operate your drone or if you are already the subject of a FAA civil penalty or enforcement action, contact your friends at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

05

Oct,2015

PRIA: FAA Enforcement Actions And Your Aviation Career

Did you ever fall off your bike as a child and scrape your knee? If so, what did your mom do when she saw your “boo boo?” Did she pull out the Morton salt and pour it on the raw flesh? If she did, we’re sorry to hear that…but, if your mom is anything like ours, she probably just put a Band-Aid on it and sent you on your way. As an aviator, you might know by now that the FAA can sometimes be the mom that pours salt on that fresh, flesh wound. In that, when it comes to the Pilot Records Improvement Act (PRIA) the FAA is pouring salt in our wounds all the time. The following will walk you through how PRIA works and make some suggestions as to how to avoid the FAA’s wrath.

 

PRIA requires that all air carriers operating under 14 CFR parts 121, 125, and 135, request, receive, and evaluate certain information concerning a pilot/applicant’s training, experience, qualification, and safety background, before allowing that individual to begin service as a pilot with their company. Of course, this is a good idea…we don’t need Bozo the Clown being hired to fly a 737 for Southwest just because his resume says he has 20,000 hours. Essentially, PRIA provides potential employers with confirmation from the FAA and one’s previous employers that an applicant’s qualifications are credible and accurate.

 

An airmen’s PRIA records will include files from the FAA, previous employers, and the National Driving Registry. The FAA’s file will include records containing information on your airmen certificates, current medical certificates, and type ratings. However, the frustrating part about PRIA is that the FAA’s file on you can contain career-crushing data. In that, the FAA records required to be reviewed by the hiring airline include your Enforcement Information Subsystem (EIS):

Enforcement Information Subsystem (EIS)

  • Computerized database of enforcement actions
  • Information may be accessed without pilot’s permission
  • Maintained by Flight Standards’ Information Management Section (AFS-624) in Oklahoma City

So, what’s the big deal? Well, everything is hunky-dory until the FAA decides to bring an enforcement action against you or you have an accident. Prior to 2010, records of action brought against your certificate would be expunged after 5 years. However, The Airline Safety and Federal Aviation Administration Extension Act of 2010, signed August 1, 2010, changes how PRIA works. Now, the new law requires the FAA to retain certain legal enforcement records until the agency is notified that a pilot has died. The FAA won’t be happy until we are all dead. As a result, if you are hit with a certificate suspension, your potential employers will know about it…which probably won’t make your application go straight to the top.

 

So what can you do in an effort to keep your PRIA record looking pristine? The obvious first step is to avoid doing anything that would warrant the FAA bringing an enforcement action against your certificate. Unfortunately, that’s easier said than done. The FAA can essentially investigate whatever they feel like investigating. Luckily, the FAA will still expunge letters warning notices and letters of correction after 2 years. Furthermore, open cases are not reported by PRIA. Once fully adjudicated and closed, both suspensions, other formal enforcement events, and revocations will become permanent entries on an airman’s EIS record, and are required to be reported by PRIA. These EIS records will remain on the PRIA report, even in cases where the airman has re-qualified, and has been issued another current and valid airman certificate.

 

Beyond that, PRIA will retain records of civil penalties. A civil penalty is basically a monetary fine issued either to an individual airman or to an air carrier. When it comes to civil penalties, air carriers are held to a higher standard. An air carrier can be subject to a penalty of up to $11,000 for a single violation. Other certificate holders such as repair stations, pilots or mechanics, can receive a penalty of up to $1,100 for each violation. Civil penalties have also become a permanent entry on an airman’s EIS record and subsequently on their PRIA report.

 

Should the FAA bring legal action against you (either in the form of a certificate action or civil penalty), the ideal modus operandi would be to adjudicate the action to its fullest. This way you can attempt to have your name cleared and your PRIA record remaining faultless. In the event of winning your enforcement action case, the “legal action” notice on your PRIA record will be expunged between 30 and 90 days. The relationship between of PRIA and enforcement actions is frustrating for airmen…such that it feels like the FAA is continuously pouring salt in the proverbial “wound.”

 

If you are the subject of an enforcement action and want to speak with an aviation attorney, call your friends at The Ison Law Group. Let us vector you through your legal turbulence… call us today with your questions at 1-855-LAW-1215.

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