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13

May,2016

Ambiguities in Fitness For Duty Requirements of 14 C.F.R. § 117.5

Have you ever been in a quandary as to whether you are “legal” under the rather ambiguous fitness for duty requirements of 14 C.F.R. § 117.5? If you are unfamiliar with this particular regulation, you will note that the essential rule is that “each flight crewmember must report for any flight duty period rested and prepared to perform his or her assigned duties.” Other than some of the rest requirements found in part 117, the only litmus test for “rested and prepared” under § 117.5 offered by the regulations is whether the crewmember is “too fatigued” to perform his or her duties in a safe manner. One ambiguity begets another… you are too tired when you are too tired. What’s worse is that even with very little to go on, the FAA has concluded (2014 WL 657509) that § 117.5(d) requires a flight crewmember to make a written affirmation that he or she is fit for duty each time that flight crewmember commences a flight segment under part 117. The issue here is that due to the subjective nature of the regulation, the FAA can potentially have a field day with you when it comes to an enforcement action – they even have you affirming statements and creating their evidence beforehand. How so?

 

Let’s say for example that a Captain for an airline finds him or herself pretty tired when he or she shows up to work. The Captain has satisfied all the rest qualifications found in part 117, but due to family stress/drama, finds him or herself pretty tired. The Captain is just plain worn out. Is it enough to bow out of work? That’s a question only the Captain can really answer for him or herself. If the Captain decides to fly and affirms in writing that he or she is fit for duty, but later goes on to have a runway incursion, you can bet your bottom dollar that the FAA will question whether or not the Captain was really “fit for duty.” Unfortunately, the FAA holds all the cards in a situation like this. The objective of the FAA will be to blame someone (or “figure out the cause”) for the runway incursion and an easy soulution would be to bring an enforcement action against the Captain for not really being “fit for duty.” It’s the Captain’s word versus the FAA’s  and when such subjectivity is allowed in the regulations, the FAA can pretty much say whatever it wants.

 

Another hypothetical scenario outlined in a recent FAA legal interpretation highlights more ambiguities in 14 C.F.R. § 117.5. This scenario poses the question of what a flight crewmember should do if he discovers that he is unfit for duty while flying in an airborne aircraft. 14 C.F.R. § 117.5(c) states that “no certificate holder may permit a flight crewmember to continue a flight duty period if the flight crewmember has reported him or herself too fatigued to continue the assigned flight duty period.” So, when a pilot reports him or herself too fatigued to continue the flight duty period while he or she is operating airborne, should the other flight crewmember declare a mayday emergency and land at the nearest suitable airport? Should the non-fatigued flight crewmember continue the flight while the fatigued flight crewmember takes an in-flight nap? Should the fatigued flight crewmember be permitted to perform any duties while fatigued? If the flight continues on with the flight crewmember in a fatigued state, can either or both flight crewmembers be subject to the catch-all enforcement regulation of 14 C.F.R. § 91.13: “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another?”

 

The FAA’s response to this hypothetical is that: “If a flight crew is augmented and there are non-fatigued flight crewmembers who are able to take over a fatigued flight crewmember’s duties, then they should do so to allow the fatigued flight crewmember to obtain in-flight rest. If a flight crew is unaugmented then the decision of whether to conduct an emergency landing will depend on the flight crewmember’s fatigue level. If the fatigued flight crewmember determines that he can safely land the aircraft at the intended destination, then he should continue to that destination and land. However, if the flight crewmember determines that he is too fatigued to safely land at the intended destination, then he should land the aircraft at the nearest suitable location to avoid accumulating additional amounts of fatigue while operating the aircraft.” Nonetheless, if a flight crewmember has to land a plane because he or she became to fatigued while airborne, the FAA is going to be curious as to why you admitted to being “fit for duty” when you embarked on the flight segment. What’s more is that even though a crewmember may be able to “take over” for a fatigued crewmember, the FAA may still consider this to be “careless or reckless manner so as to endanger the life or property of another” under part 91.

 

If you have any questions about crew rest requirements, part 117, or FAA enforcement actions, please contact The Pilot Lawyer at 855-FAA-1215 or visit on the web at www.ThePilotLawyer.com.

12

May,2016

Section 333 Loophole For News Media Use of UAS?

A recent legal interpretation put out by the FAA addresses Section 333 issues concerning news media use of UAS in the National Airspace System. Particularly, the issues being addressed are: 1) whether members of the media may use UAS for newsgathering; 2) whether the media can use pictures or videos collected by non-media affiliated UAS operators; and 3) whether UAS operators require Section 333 exemption if they wish to sell their pictures, images, or other information to media outlets. The legal interpretation highlights something everyone already knows…if the UAS operator is flying his or her UAS for commercial purposes, he or she will need to file for and receive a Section 333 Exemption.  This basic doctrine applies to news media, in that because the use of an unmanned aircraft by a media entity to gather news would be in furtherance of that entity’s business and because it would fail the “hobbyist” test under Section 336, the news media would require Section 333 Exemption. So, where is the loophole?

 

The legal interpretation (Department of Transportation (D.O.T.) Federal Aviation Administration, 2015 WL 3451735) highlights a pseudo-loophole for news media use of UAS. Essentially, news media outlets may use pictures, film, and/or other information obtained from a UAS operator so long as the UAS operator is “not affiliated with the media outlet.” The letter stresses that the FAA does not regulate what a third party does with UAS collected data; rather the FAA’s relationship is with the person operating the UAS in the National Airspace System. “A media entity that does not have operational control of the UAS and is otherwise not involved in its operation falls outside of the FAA’s oversight.” This begs the question…how does the FAA determine whether an entity is “affiliated with the media outlet?” Does this create an opportunity for news companies or any other type of company for that matter to gain the benefit of UAS technology as a straw-man, circumventing all FAA requirements?

 

Let’s say for example that Channel 89 News never files for or receives a Section 333 Exemption, never purchases a drone, and never employs a pilot to operate a UAS on its behalf, but every night on the 11:00 news, there is footage capture from a drone. Furthermore, let’s say John Doe Drones, LLC has caught on that Channel 89 News will pay a premium price for pictures and video gathered on popular news stories. Maybe Channel 89 instructs John Doe Drones, LLC to actively gather data on all trending stories. Is this technically being “affiliated with the media outlet?” Channel 89 News has no “operational control” over John Doe Drones, as the news media is not employing the drone company. The news media is not involved in John Doe’s operation – other than to say “bring us news footage.” They are not directing the drone company as to how, when, or where to operate the UAS.

 

At this point, this relationship between the news media and drone operator has strayed dramatically from the scenario the FAA has likely envisioned and approved. The FAA relationship between news media and drone operator is one in which a hobbyist UAS pilot is flying over his house and happens to catch a photo or video of a high speed police chase with his Parrot Bebop, at which point he sells his picture to the news for a few hundred dollars. The FAA would rubberstamp this scenario because the hobbyist was not operating his drone for money and the news media was innocently purchasing data that a hobbyist drone operator miraculously caught on film.

 

Despite the FAA’s intentions, the ambiguities in one’s “affiliation with the news outlet” and the news media’s “operational control” over the drone operator/operation leaves room for great interpretation. Primarily the ambiguities open the door for news media and potentially other types of businesses to reap the benefits of UAS technology without ever owning a drone or filing for Section 333 Exemption. So what’s the problem? That’s what drone companies are all about…providing aerial data services for other companies that don’t own a drone or wish to apply for Section 333 Exemption. Well, the interpretation says that,“if the individual’s takes the pictures or videos or gathers other information as part of a hobby or recreational activity, then a later decision to sell some or all of those pictures, videos, or other information would not change the character of the operation as part of a hobby or recreational activity that falls within the section 336 carve-out for model aircraft. No FAA authorization for that operation would be required. However, if the individual is conducting the operation with the primary intention of obtaining pictures, videos, or other information to sell, then the operation is commercial in nature and not part of a hobby or recreational activity.”

 

With this weak and ambiguous description of commercial vs. hobby UAS operation, there is a window for less than reputable UAS operators to argue that they never intended to sell their collected data. Rather, what’s keeping hobbyist UAS operators from actively gathering news data and then later deciding at some point to sell the data to the news media? In that scenario, the primary intention is not to sell pictures, videos, or other information — its to gather news footage. As a result, this creates a situation where neither the news media nor the UAS operator is filing for a Section 333 Exemption, but both are receiving the benefit.

 

While this loophole is a stretch, the FAA has created a potential slippery slope, as intent (whether to operate commercially or as a hobbyist) is a very subjective standard.  This article is just highlighting one more reason why UAS rules cannot get here soon enough. If you have any questions about Section 333, Section 336, or any other aviation or drone law, contact your drone attorney at The Ison Law Firm toll-free at 855-FAA-1215!

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