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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!

17

Dec,2015

Section 333 Attorney or Section 333 Preparation Company?

All commercial UAV operators have asked themselves this Section 333 preparation question: should I hire a Section 333 attorney or Section 333 preparation company to prepare my petition? It’s tempting to answer that question with another question by saying, “the Section 333 preparation company is cheaper…why would I spend more money for a Section 333 attorney to do the same thing?” It is true that many of the Section 333 preparation companies you see advertising on Google have undercut the market and are preparing petitions anywhere from $300 – $800. However, is making your company “legal” really the place you want to cut costs – especially in a field as legally volatile as UAV operation. This article will walk you through some of the pros and cons of Section 333 preparation companies and help you decide for yourself whether it is in your company’s best interest to hire a Section 333 attorney or not.

 
The first thing to think about is that the Section 333 process is all about preparing a petition – it’s essentially legal writing. While some preparation companies may have vast UAV and aviation technical knowledge, they generally aren’t trained in petition writing – especially petition writing that requires the appropriate legalese to allow growth within a client’s UAV business. Nonetheless, the preparation companies will claim that they have a GUARANTEED template and all they have to do is plug your company’s name into the document and you will receive your exemption…just like all their previous, successful clients. While that may be true, this strategy is not going to maximize the value of the business. In other words, let’s say you are starting a UAV business for real estate photography called “Real Estate UAV, LLC.” Are the preparation companies going to sit down with you and discuss how to broaden your Section 333 petition so as to maximize your business? No. It’s likely that they are going to plug your name into their template and spit back a cookie cutter petition with “Real Estate UAV, LLC” at the top and purpose at the bottom with: “real estate photography.”This will not maximize your potential growth. Instead, the drafter of your petition should sit down with you and discuss where your business may be 10 years down the road and whether you are legally capable of operating the type of business in your business plan, etc. After gathering this information and counseling you, the petition drafter should make your petition as broad as possible to allow for future growth. Maybe the attorney’s petition would read “Real Estate UAV, LLC” at the top and purpose at the bottom of the page with: “aerial photography; aerial videography; aerial surveying.” The problem with using a Section 333 preparation company is that they are not legally authorized to give you legal advice. This would be the unlicensed practice of law (“UPL”). As a result, essentially, all a preparation company is really allowed to do is put your name down into their template and send it off to the FAA for review…even that is legally a grey area and we feel is a pseudo unlicensed practice of law.

 

Be that as it may, because he or she is legally authorized to counsel you on aspects of the law, your Section 333 attorney can offer you so much more for a greater value than a Section 333 preparation company. For example, a Section 333 attorney can legally provide analysis of your business model, corporate set-up and structure, plan for the broadest commercial use, prepare operations, maintenance and airworthiness directives with an eye for liability, provide legal advice and analysis on UAV use prior to and after receiving you Section 333 exemption, and fight any potential FAA Civil Penalties and/or FAA Enforcement Actions that may come your way. When you consider most attorneys charge, maybe, $300 more than the Section 333 preparation companies, you are getting a great value for your money.

 
Beyond all this, you can tell the difference between an attorney prepared and an organizer prepared Section 333 petition for yourself by visiting regulations.gov. If you go to this website and search for any given Section 333 preparer, you can judge the quality of his or her work for yourself. We invite you to look at the quality of The Ison Law Group’s Section 333 petitions at regulations.gov.

 
Of course this article may be one-sided, as it is coming to you from a Section 333 and aviation law firm. Nonetheless, we think the issues speak for themselves. Hiring an attorney for legal work only makes sense. If you want to commercially operate your drone with a Section 333 petition, contact your drone attorney at The Ison Law Firm. We are regularly counseling our Section 333 clients with an eye for legal operation and a broad business plan. If you have any questions, feel free to call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

03

Nov,2015

Is Recreational Drone Registration Practical?

The announcement that the FAA will require recreational drone registration by the end of the year has generated new interest and even some refreshed hatred for drones in our nation. Seemingly, everyone from your neighbor to your grandmother is talking about drones and whether or not recreational drone registration is necessary. Everyone is torn on the issue. Recreational drone operators don’t want to go through the hassle of registering their $30 drone. The general public can’t fathom how registration will keep a drone from spying on them in their backyard. The FAA, however, wants to be able to hold someone accountable when a DJI Phantom 3 has a near-miss with a Boeing 737. There are a lot of arguments for the good and evil in recreational drone registration. Nonetheless, let’s hone in on the big question: is recreational drone registration practical?

 

Let’s overlook all the jurisdictional issues, such as whether or not the FAA really has the authority to regulate recreational drones. Instead, let’s assume that everything is on the up and up and God has etched into stone that the FAA can regulate recreational drones from here to kingdom come. With that out of the way, it’s easier to specifically focus on the logistics of registering a hobby drone. Besides, in case you haven’t noticed, this administration doesn’t seem to care about whether or not they are legally allowed to do something…they just do it.

 

So, let’s assume that before the end of the year, the FAA hands down a regulation that says “every single drone/UAV that is operated in the United States, no matter its size, no matter its operator, must be registered with the FAA.” This would mean each and every one of the one million recreational drones that the FAA expects to be sold over the 2015 holiday season would need to be registered. If Santa brings little Bobby a drone for Christmas, let’s hope that Grandma and Grandpa bought him the registration to go along with it. Therein lies a problem…can we expect drones to come “pre-registered” to where all the consumer has to do is send in her name and drone serial number on a postage-provided postcard (much like registering for a warranty) or should we expect something similar to waiting on line at the DMV? Would it cost money to register your drone – thus making it that additional gift under the Christmas tree?

 

The logistics of the registration process has a lot of drone enthusiasts concerned. The recreational drone operators that fly their drones just to have fun and blow ff some steam after work will probably give up their hobby before it comes a regulation minefield. If it costs an additional $125 to register the drone and $500 to have an attorney assist with the registration, most would probably take up a different hobby…we hear knitting isn’t that regulated yet. Herein lies another problem, however. It seems like the regulatory hassles of registration would alienate the industry, causing fewer and fewer people to want to get involved in UAV operations. Can we afford to lose a billion dollar industry?

 

Nonetheless, forget everything you just read (long enough to read this paragraph) and assume that registering a drone is as simple as pie. Maybe little Bobby can go onto a website and enter his name and drone serial number and then BAMM – his drone is registered. Well that’s great, but what happens if Bobby wants to sell his drone? Will it be as simple as registering the drone in the first place? We don’t have to look much further than the VA, to know that the government doesn’t do “streamline.” What if Bobby’s drone gets stolen? What if Bobby just wants to throw his $50 drone in the garbage – will he have to unregister his drone? Will that cost him anything? If so, the FAA is a sucker for thinking that little Bobby will do so.

 

Okay, so now let’s pretend that Bobby got his UAV for Christmas, registered it (no matter how difficult or expensive a task that was), and is out flying in the neighborhood. Bobby sees a Cessna 172 flying above his house and says to himself “let me see if I can get the drone to go up that high.” Every child flying a UAV has probably had this thought at some point. Surprisingly, Bobby is able to get some altitude with his drone, as he inches closer and closer to the flight path of the 172. Maybe the Cessna pilot doesn’t see the drone and the drone ends up striking the aircraft’s wing strut. Minimal damage is done to the Cessna (whew, they were lucky) but the drone is obliterated into smithereens. When the remaining particles come crashing back down to earth, maybe they catch on fire, fall in a lake, or somehow be further destroyed. Do you think it is likely that the FAA will be able to locate the serial number/registration number on this drone and ultimately track it back to little Bobby? The odds seem relatively low. Furthermore, how can we point the finger at Bobby – maybe his dad, his neighbor, his friend from school, or his grandma were flying at the time of the accident!

 

The foregoing are just a series of questions and scenarios that drone operators feel like the FAA is grossly overlooking. What we are seeing here is the FAA making a kneejerk reaction. The prediction was made that over a million drones would be sold over the holiday season and someone high up on the totem pole said, “we need to do something.” Unfortunately, the FAA waited until the last minute to find a solution and the drone industry will suffer as a result. Is recreational drone registration practical? It could be…but there’s no way the FAA will get it right with the two month timeframe they are working with. It’s clear, however, that the FAA wants more accountability within the recreational drone community and if that requires bringing a FAA Enforcement Action against a drone operator, they will probably do so.

 

If you have questions about operating your drone legally, want to fly your drone commercially with a Section 333 Exemption, or are facing a FAA Civil Penalty, call a drone attorney at The Ison Law Firm. Whether you need a Florida drone attorney, national drone attorney, or Section 333 attorney, feel free to call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com. 

 

02

Nov,2015

DUI and the FAA: What Should I Do?

Navigating the treacherous terrain of a DUI and the FAA can be tough. Did you know that you could have your airmen certificate suspended or revoked for certain offenses related to driving under the influence of drugs or alcohol? Beyond that, the FAA can deny an application for any certificate, rating, or authorization in response to a DUI offense. The FAA’s consequences for a DUI will make you regret ever drinking something besides water. However, the following will walk you through a scenario in which you are charged with driving under the influence and give you a few pointers on the FAA’s requirements.

 

Let’s say you go out on Friday night with your friends and with the social mores what they are today, you decide to indulge in an alcoholic beverage. Maybe you end up having more than one drink, but you claim to feel “fine.” One thing leads to another and you find yourself behind the wheel of your car, trying to find your way home. This is when you get pulled over by the local police for swerving in your lane. The officers conduct a field sobriety test, which you fail, and it is determined that your blood alcohol is approximately .250. As a result, you are charged with a State statute prohibiting the operation of a motor vehicle while intoxicated/impaired by drugs or alcohol. In this situation, you should speak to an attorney as to how to handle the DUI on the State/criminal level. Nonetheless, for the purposes of understanding a DUI and the FAA, let’s assume that you hire an attorney and you end up being convicted of one charge of DUI.

 

What happens now? The FAA has very strict reporting guidelines when it comes to airmen being charged with a DUI offense. The answer to this question comes from 14 C.F.R. §61.15(e), which reads: “[e]ach person holding a certificate issued under this part shall provide a written report of each motor vehicle action to the FAA…not later than 60 days after the motor vehicle action.” Did you catch that? The FAA requires that 60 days after you the motor vehicle action, you must submit a written report to the FAA. You have to tell the FAA about your DUI!

 

Some people think they will outsmart the FAA. They say, “I just won’t tell the FAA and they will never find out.” Okay, let’s run that theory down for a second. You may get away with not telling the FAA for a little while, but they will always find out somehow. The likely scenario is that the information will come out when you go to get your next medical certificate examination, as Form 8500 (medical application) authorizes the release of your National Driving Record to the FAA. Keeping this information from the FAA is a BIG MISTAKE. 14 C.F.R. §61.15(f) states: “failure to comply with paragraph (e) of this section is grounds for…denial of an application for any certificate, rating, or authorization…or suspension or revocation of any certificate, rating, or authorization.” When the FAA finds out about the DUI and subsequently revokes your certificate because you failed to notify them, they will now beg you as a liar and will make your life much worse than it needs to be.

 

So let’s say that you report the DUI to the FAA within the 60 time period. What happens next? When you report the alcohol-related motor vehicle action, the FAA will initiate a preliminary investigation to ensure your report was within the required 60-day time frame and that there are no other reportable actions. This investigation may lead to a formal investigation where the FAA will consider either suspending or revoking your certificate or giving you a warning, etc.

 

There is one tip which may seem self-serving to all the FAA Enforcement and Aviation Attorneys out there, but is really the best piece of advice for airmen in this situation: hire an Aviation Attorney. An Aviation Attorney can help you draft your initial 60-day filing to the FAA with an eye toward protecting your certificate from a certificate suspension or revocation. Beyond that, a FAA Enforcement Attorney can help coordinate medical experts and preserve legal evidence from the DUI conviction, which may become relevant in a subsequent FAA Enforcement Action.

 

As soon as you are involved in a DUI situation, it is important to contact your FAA Enforcement Attorney. Getting your Aviation Attorney involved in the process early on is a good idea, as he or she can ensure that you get the appropriate counseling and evaluation in anticipation of a FAA certificate action. If you have questions about a DUI charge in Florida, or have questions about a DUI and the FAA on a national basis, feel free to 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. 

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.

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