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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.

24

Aug,2015

FAA Ramp Checks: A Survival Guide

You’ve landed, taxied to the ramp, and are tying your Cessna 172 down for the night. But who is that guy walking across the ramp toward your plane…oh no, it’s the FAA! When you see the badge clipped to his shirt that says “FAA” in big letters, you’ll probably want to climb into the baggage compartment and hide, but don’t. If you understand the “Ramp Check” process and are properly prepared for an unexpected chat with the inspector, the chances are you will survive.

 

Remember back to when your flight instructor briefly mentioned “Ramp Checks.” It is likely he or she did not spend too much time going over the process of a “Ramp Check” because they seem fairly rare. If you are a flight instructor, it may be a smart idea to have a mock “Ramp Check” with your students before sending them off to solo. Nonetheless, what is a “Ramp Check?” Essentially, these checks are conducted to ensure that a licensed pilot or student pilot are conducting flight operations safely and within the parameters prescribed by the Federal Aviation Regulations. While most checks end with the inspector shaking your hand and saying “everything looks good,” it is possible for the check to result in an enforcement action. If the FAA initiates an enforcement action as a result of a ramp check, it is possible that your pilot’s license could be suspended or revoked, and/or you could face a civil fine. The stakes are high.

 

When will a “Ramp Check” occur? A ramp check is not scheduled and is unpredictable. A check will commonly occur when an inspector observes an unsafe operation in the traffic pattern or on the ramp, is notified by ATC of an unsafe operation, or just feels like checking out your operation to make sure you are in compliance with the rules. If you are approached by someone claiming to be an FAA inspector, make sure you ask for identification before proceeding with the check, as the inspector is required to present identification prior to initiating a check. If the inspector does not present identification, make note, as that may become part of your defense if the check proceeds to an enforcement action. Furthermore, the inspector may not detain you if it means you will miss a flight or an appointment; he or she may only detain you long enough to check your records.

 

Once the “Ramp Check” is initiated, however, what can you do to ensure you keep your nose clean with the FAA? Most checks will include an inspection of the pilot’s airman and medical certificates, the aircraft paperwork, and an exterior inspection of an aircraft. Your pilot certificate will be inspected to make sure that you are licensed for the operations that you a conducting. For instance, if the inspector witnesses you landing in IFR conditions, he or she will look at your certificate to make sure that you are an instrument rated pilot. Furthermore, your medical certificate will be checked to make sure you are conducting operations within your class medical. Again, the inspector is making sure that for instance you aren’t conducting commercial operations with a third class medical. And if you are a student, your logbook will be checked for records of currency, solo endorsement, etc.

 

As to your aircraft, the inspector will want to make sure you have certain documentation/equipment onboard. Do you remember ARROW from your training – now is the time to use it! The inspector will want to see that you have with you your aircraft’s airworthiness certificate, aircraft registration, weight and balance information, and operating handbook. Beyond that, the inspector is authorized to inspect: the aircraft’s minimum equipment list (if applicable), Aeronautical charts (if applicable), the general airworthiness of the aircraft, the ELT battery, the seats/safety belts. Furthermore, the inspector can conduct a VOR check. It is important to remember, however, that the inspector is not authorized to board your aircraft without the knowledge of the entire crew; however, the inspector may inspect the exterior and look through the windows. Again, if the inspector boards your aircraft without the knowledge of the crew, note that, as it may become part of your defense if the check leads to an enforcement action.

 

Always remember to prepare for an unexpected FAA “Ramp Check,” as preparation is your only chance to survive one of these checks. Furthermore, if the check is in response to a possible violation, anything you say can be used against you. If you have questions about “Ramp Checks” or are the subject of a check, contact your team at The Ison Law Firm. We are standing-by 24/7 to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

19

Aug,2015

UAV Operations and the FAA’s New Enforcement Guidelines: We Can Do This The Easy Way or the Hard Way

UAVs are quickly becoming more regulated than the world’s oldest profession. Perhaps more regulation is necessary, however, as every time you turn on the news there is another DJI Phantom flying into the flightpath of a Boeing 737. On August 4, 2015, in an effort to prevent such violations by drone operators in the National Airspace System (NAS), the FAA released an updated notice for “Education, Compliance, and Enforcement of Unauthorized Unmanned Aircraft Systems Operators.” FAA Notice N 8900.313 replaces the now expired FAA Notice N 8900.268; however, both notices essentially contain identical provisions and guidelines. Notice N 8900.313 provides Flight Standards divisions (RFSD), and Flight Standards District Office (FSDO) aviation safety inspectors (ASI) with the “FAA approved” protocol for how drone operators should be “properly educated” if they violate a regulation within the NAS. This notice applies to both recreational (i.e. hobby enthusiasts) UAV operators and those operating under a Section 333 exemption for commercial purposes.

 

Let’s work through the guidelines together. So let’s say for example you are flying your Parrot AR 2.0 Elite Quadcopter on a photography assignment and you lose Visual Line of Sight (VLOS) with the UAV. When you lose VLOS you inadvertently climb to 1,600 feet, right into the path of a Cessna 172 on a VFR flight plan. As a result of this mistake, you are reported by the Cessna pilot and the FAA traces the UAV’s operation back to you. What’s going to happen?

 

As per Notice N 8900.313 the FSDO air safety inspector assigned to your case will first attempt to call you on the phone. The guidelines indicate that the inspector should “conduct an inquiry appropriate to the circumstances.” In our hypothetical, the inspector will likely ask what happened, whether you remained within visual line of sight with the UAV, why you climbed, etc. Beyond that the inspector will review with you the appropriate Code of Federal Regulations (CFR) provisions and counsel you on how to operate your UAV within said provisions. If the inspector deems necessary, he will send you an administrative informational letter that includes website addresses to FAA UAS guidance and relevant CFR provisions. As in any FAA enforcement case, it is advised that you speak with an aviation attorney before speaking with the FAA inspector.

 

The abovementioned scenario is the easy way the inspector may resolve your case. There is, however, another, more odious way the inspector may resolve the case. If, when talking to the inspector, he or she determines that you are “uncooperative, intentionally noncompliant, or the operation poses medium to high potential or actual endangerment to the NAS,” he or she will proceed with an enforcement action as outlined in the Compliance and Enforcement Bulletin No. 2014-2. One lesson here is to not be uncooperative with the inspector, should you talk to him on the phone. Furthermore, keep yourself apprised of the CFR provisions that apply to UAV operations and don’t intentionally violate them.

 

Should the inspector propose an enforcement action, the UAS Integration Office will take over and prepare a memorandum for the Office of the Chief Counsel recommending an appropriate sanction based on the facts of the case and in accordance with the guidance in Order 2150.3 and the Compliance and Enforcement Bulletin No. 2014-2.6. At this point, the FAA could either take legal or administrative action against you. If you are notified that you are the subject of an enforcement action, it is imperative that you contact an aviation attorney.

 

The short and long is that if you violate a regulation within the NAS with your UAV, you could be subject to suspension or loss of licensure, penalties and fees, and/or a very stern talking to by some guy at the FAA. If you feel you have violated a regulation with your UAV and want to speak with an aviation attorney,call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

24

Jun,2015

These Private Eyes Are Watching You: Privacy Laws for Drone Operators

You’ve saved, shopped online, watched “unboxing” videos on YouTube, and read the owner’s manual, and now it’s time for you to take your new drone for its maiden voyage. The one question that may still be unanswered, however, is: how can you enjoy your drone, while not violating privacy laws? Imagine you decide to take your UAV for a flight across town to capture some video footage of the summer festival. Look down there; the crowds are swarming around the cotton candy booth, the line for the Ferris wheel is swelling, and the Foreigner cover band is killing it on stage. You’re getting all the action on film, thanks to your UAV! However, the question is whether all the people you filmed waiting on line for a corndog have a claim against you for invasion of privacy.
 
The answer to this question requires a highly complex legal analysis, because the law is volatile and extremely uncertain. Right now, as you are reading this blog post, there are congressmen chain-smoking, scratching their heads, and sweating over their fourth cup of coffee as they draft new privacy regulations for drone operators. The FAA is hoping to make privacy a major focus in their new UAV regulations, set to come out who knows when. Suffice it to say, drones will probably be a thing of the past by the time the Federal government gets its act together and passes some privacy regulations that make sense. Earlier this year, the FAA was sued by the Electronic Privacy Information Center (EPIC) because the FAA’s initial drone regulations failed to address privacy. EPIC pointed to the fact that a drone’s ability to gather personal data such as a location “poses a public safety problem for millions of individuals.” The case is still pending in a Federal court of appeals in Washington, D.C. Harley Geiger, advocacy director for the Center for Democracy and Technology says, “until privacy concerns are dealt with or made clear by some government entity, the drone industry will continue to develop at a slower-than-possible pace because the general public won’t embrace the industry.”
 
So where does that leave you as a drone operator? Congress says that drone operators should look to the states for privacy related regulations. Some states, including Florida, are placing restrictions that seemingly make the state a no-drone-zone. Take a look at the language from Florida’s new Unwarranted Surveillance Act:
 
A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.
 
As per this language, you do not have a reasonable expectation of privacy if you’re observed from a helicopter, but do have an expectation of privacy when observed from a drone.
 
There are exceptions for commercial operators, however. Land surveys, power grid inspections, cargo delivery, and possibly even professional photographers and realtors may fall into this exception. The operative language from the statute is whether the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s or entity’s license. The exception does not apply a profession in which the licensee’s authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.
 
While Florida is attempting to pass these poorly worded laws; other states are developing drone regulations like a teenager’s beard…very patchy. Oregon is prohibiting a drone operator from using it to fire a bullet, shoot a laser, or crash into an aircraft. In North Carolina, “it shall be a Class 1 misdemeanor for any person to fish or to hunt using an unmanned aircraft system,” per N.C. Gen. Stat. Ann. Section 14-401.24. And in Illinois, it is a crime to “use … a drone in a way that interferes with another person’s lawful taking of wildlife or aquatic life,” per Illinois Compiled Statutes, 720 ILCS 5/48-3. As a result, drone operators must look to state privacy laws, which traditionally provide extremely limited privacy rights in connection with actions taken in public or which are available from the public view. The generally thinking is: if the subject matter is visible from public view, you are not violating privacy laws. Hopefully future drone laws in Florida will revert to this general rule and expunge exceptions for drone operators.
 
How can you avoid intruding on someone’s privacy? Where is the public/private line for drone operators? Despite there being very little law on the issue, many drone operators have gotten themselves on the wrong side of Larry Law recently because of the fine line between public and private. In 2014, a New York man was arrested for flying his drone close to a medical facility. Patients complained that the drone operator was deliberately spying into the examination rooms. The drone operator was acquitted of the charges, because he wasn’t intentionally peeking into the building, and his actions were of little or no harm.
However, there are situations in which the public/private line is not as obvious. What will the courts do in the area of divorce investigations? Take for example a case where a spouse hires a private investigator to fly a drone over Central Park in pursuit of photographic evidence of a cheating spouse and his mistress. The issue is whether or not the subject matter is public (because they are in a public space), but they are engaged in a very private situation. It’s hard to say here, because while the two were in a public place where privacy expectations are lowered, it isn’t too much of a leap to predict that this drone has entered an area that is clearly private. In Florida, this would be an illegal invasion of privacy because private investigators are almost exclusively prohibited from gathering intelligence with their drones.
 
So the question remains: are you liable for the people you filmed while flying your drone over the town festival? The Federal government says, “we don’t know, ask the states.” The states say, “you might be liable, but you will have to check our law.” Essentially, it all boils down to which state you are operating your drone in and how it views invasion of privacy. A good rule of thumb is that if the subject matter is reasonably in public view on ground level, you could argue that you did not violate privacy.
 
Whether you operate your drone for business purposes or just for fun, you should be cognizant of everyone else’s privacy concerns. If you have any questions or concerns, don’t hesitate to call the drone lawyers at The Ison Law Group. Call us toll free at 1-855-LAW-1215 or 863-712-9475.

15

Jun,2015

The Potential Future of Commercial Drone Use Regulation: Limitations and Requirements Found in the Newly Proposed “Commercial UAS Modernization Act”

Recently, U.S. Senators Cory Booker and John Hoeven introduced Senate Bill 1314, “Commercial UAS Modernization Act,” with the intent of regulating the commercial use of Unmanned Aircraft Systems (UASs), commonly referred to as drones, within the U.S. National Airspace. If you are planning to start a new business that operates a UAS, or want to incorporate the use of a UAS into your current business, pay attention to the proposed requirements for commercial UAS operators outlined in the “Commercial UAS Modernization Act.”
 
As of now, any person that desires to commercially operate a UAS must petition the FAA under Section 333 of the FAA Modernization and Reform Act of 2012 for exemption of certain Federal Aviation Regulations (FARs). Since the FAA began granting Section 333 exemptions for commercial UAS operators, the FAA’s streamlined Section 333 process has not included a requirement that the operator of a UAS hold any type of insurance policy for the operation of that UAS. That, however, would change under the Commercial UAS Modernization Act which would require a UAS operator to attest to the FAA Administrator that the operator has a liability insurance policy covering the operation of the drone.
Fortunately for UAS operators, the proposed bill remains silent as to the amount of liability coverage that a UAS operator should hold. If the final bill does not require a specific amount of liability insurance coverage, the UAS operator should select an appropriate amount of insurance coverage that will protect the operator from personal liability in the event that the UAS crashes, causing serious injury or death or property damage.
 
In addition to potential insurance requirements, the Commercial UAS Modernization Act also requires any individual commercially operating a drone to undergo testing – a requirement the FAA does not impose when granting Section 333 exemptions. Currently, the FAA does not require a commercial drone operator to take any aeronautical tests specific to drone operations. Moreover, the FAA does not require the commercial drone pilot to undergo any flight exams specific to drone operations. The bill, however, instructs the FAA to develop an aeronautical knowledge test for commercial drone pilots and would require the commercial drone pilot to demonstrate an ability to appropriately fly the drone before commercially operating the drone.
 
Of course, restrictions and regulations are only words on paper. Thus, the bill provides teeth to these regulations by enabling the FAA to bring an enforcement action against the commercial operator of a UAS who allegedly violates a section or regulation. Specifically, the bill empowers the Secretary of Transportation to bring a civil action against any person, in a district court of the U.S., to enforce the sections or requirements set forth in the Commercial UAS Modernization Act.
 
Currently, the FAA can bring an enforcement action against a commercial UAS operator for not complying with the FARs. On October 10, 2014, the FAA Administrator published a guideline (Change 6 to the Compliance and Enforcement Handbook) for FAA inspectors and attorneys relating to the handling of enforcement actions against UAS operators. Among the various issues discussed, the Administrator states that if the operation of a UAS “is contrary to applicable operational requirements, the FAA may cite the operator for violations of those operational requirements in any enforcement action determined to be appropriate.” In short, this means that the FAA believes they currently have the right, regardless of the Commercial UAS Modernization Act, to bring an enforcement action against any commercial UAS operator in violation of the applicable FARs.
 
There is no way of knowing whether Congress will pass Senate Bill 1314, “Commercial UAS Modernization Act,” this year, if at all. For a more detailed look at this bill, click the following link to view the bill in its entirety: https://www.congress.gov/114/bills/s1314/BILLS-114s1314is.pdf.
 
In the meantime, if you want to commercially operate a UAS, you will have to petition the FAA for a Section 333 exemption and abide by those limitations. Call The Ison Law Group toll-free at 855-LAW-1215 or locally at 863-712-9475 to discuss your petition for Section 333 exemption.

14

Jun,2015

The Un-responsive Pilot: request to call the tower and Letters of Investigation – how the FAA wants to use your statements in an enforcement action

Imagine a beautiful Saturday afternoon with calm winds and high ceilings – the type of day that just beckons a pilot to go fly. You hop in your plane and off you go, soaring above all your worries and concerns. As you fly along without a care in the world, you unknowingly fly into class “B” airspace without a clearance. As soon as you realize your mistake, you exit the airspace and head home, except ATC contacts you and requests that upon landing you contact the tower. What do you do? Should you call the tower? Or, do you just go about your business?
 
The answer is simple: do not call the tower. Tell ATC thank you and go about your business. When ATC tells a pilot to call the tower due to a potential violation, no legal authority requires the pilot to call the tower. Beyond the lack of legal authority, no good can come from calling the tower, as the FAA will likely use your statements against you in a potential enforcement action.
 
Likewise, pilots may also question whether they have to respond to a Letter of Investigation from the FAA. Again, imagine the same scenario as detailed above. Only, this time, instead of ATC telling you to contact the tower, you later receive a Letter of Investigation from the FAA in the mail. What do you do? Should you respond to the letter? Or, should you just throw it away and pretend you never got it?
 
Again, the answer is simple: do not respond to the Letter of Investigation. As a pilot, you are not legally obligated to respond to a Letter of Investigation from the FAA. Just like ATC requesting you contact the tower, anything you say in response to a Letter of Investigation could be used against you in an enforcement action. See Funk, 6 NTSB 1016 (1989); Salkind, 1 NTSB 714 (1970).
 
Fortunately, the Pilot’s Bill of Rights, Public Law 112-153, requires the FAA to inform the airman that there is no obligation to respond to the Letter of Investigation. Under the Pilot’s Bill of Rights, the FAA must inform the airman of the nature of the investigation, that an oral or written response to a Letter of Investigation form the FAA Administrator is not required, that no action or adverse inference can be taken against the individual for declining to respond to the Letter of Investigation, and that any response to an Letter of Investigation, or any other FAA inquiry may be used in evidence against the individual.
 
There are certain times, however, when you must respond to an inquiry from ATC or the FAA. After all, not responding to ATC’s request that you contact the tower or a Letter of Investigation from the FAA does not mean the FAA will just give up and leave you alone. If the FAA serves you with a Notice of Proposed Action, you will need to take action as failure to respond to a Notice of Proposed Action can have drastic consequences in your defense of an enforcement action.
 
By now you probably get the picture – anything you say can be used against you in an FAA enforcement action. Unfortunately, this also means that your conversations with ATC can be used as evidence against you. Consequently, an airman should be mindful of his tone and phrasing of words when responding to any and all ATC requests that require a response. The pilot should always be honest while being polite and brief. Given all the opportunities to hang yourself, the FAA bets that you will talk yourself right into proving their enforcement case. Don’t fall into this trap! When responding to a request that requires a response, never divulge more information than requested.
 
As pilots, we at The Ison Law Group understand the stress that comes with flying an airplane, or a helicopter for that matter. As if keeping an aircraft in the air is not difficult enough, having to mind your “P’s and Q’s” seems like the straw that will surely break the camel’s back. Yet, the law does not discern between words spoken on the ground or words spoken at 15,000 feet in the air.
 
Long story short, do not make the FAA’s job easier. If you do not have an obligation to respond, do not respond. If you do have an obligation to respond, be polite and brief. In any event, give The Ison Law Group a call toll-free at 855-LAW-1215 or locally at 863-712-9475 to discuss your case.

02

Jun,2015

Don’t Drone In Liability: A brief look at drone liability and ways to protect a business operating Unmanned Aircraft Systems (UAS)

Without a doubt, starting a new business can be one of the most rewarding, and equally terrifying, experiences in anyone’s life. With the commercial availability and success of Unmanned Aircraft Systems (UAS), commonly referred to as drones, many business entrepreneurs are starting new aviation businesses. Whether the UAS business uses drones for aerial mapping/videography/photography, pipeline/hydro-transmission line inspection, real estate, railroad and highway maintenance, film production, agricultural and conservation, or for any other purpose, UAS business owners need to consider the drone liability ramifications should a drone cause damage to a person’s property or injury to a person during the commercial usage of that UAS.
 
From a legal standpoint, current federal law states that “a lessor, owner or secured party of an aircraft is liable for personal injury, death, or property loss or damage on land or water only when a civil aircraft, aircraft engine, or propeller is in the actual possession or control of the lessor, owner, or secured party” and “the personal injury, death, or property loss or damage occurs because of the aircraft, engine, or propeller, or the flight of, or an object falling from, the aircraft, engine, or propeller.” 49 U.S.C.A. §44112(b) (2015).
 
In a case involving the crash of a fixed wing aircraft and death of a passenger, the Florida Supreme Court in Vreeland v. Ferrer, 71 So. 3d 70 (Fla. 2011), held that 49 U.S.C.A. §44112 preempts Florida’s statutes and applies in cases where people on the ground (surface of the Earth) are injured or killed, but does not apply when the injury, death or property damage is to the passenger of an aircraft. Given the holding of the Florida Supreme Court and unique nature of unmanned drones, liability for drone operators, at least in Florida, will fall under 49 U.S.C.A §44112. Consequently, as the “lessor, owner or secured party of an aircraft,” the UAS business entrepreneur will likely be liable for injuries or damages to people or property on the surface when caused by the UAS drone.
 
So, what does the UAS business entrepreneur do to protect himself? For starters, UAS business owners that operate drones can personally protect themselves from liability by forming either a limited liability company (LLC) or a corporation. While an LLC provides for both a favorable flow-through partnership taxation and limited liability protection for all members, corporations allow for limited liability, continuity of life, free transferability of ownership interests and centralized management. The greatest benefit of a corporation is the limited liability aspects – a shareholder’s financial risk is limited to the amount invested in the corporation and the shareholders is not liable for corporate obligations. Simply put, in most cases, the liability for any injuries or damages due to a UAS crash will stop with the business such that the injured or damaged party will not be able to collect from the UAS business owner’s personal assets.
 
New UAV business owners should also consider insuring their drones before taking to the skies. In the unfortunate event that a drone crashes, a UAS business owner will want to have peace of mind that any damage caused by his drone will be covered by insurance. A quick Google search yields several insurance companies that insure UAS operators for commercial purposes. UAS Business owners should purchase an insurance policy that will fully cover all aspects of the UAS business’ operations. Before inking the contract for drone insurance, read the policy to see what exclusions the policy contains. After all, a UAS business owner would hate to have a drone crash and injure a person because the drone lost signal connectivity, only to later find that the insurance policy excludes accidents that occur under those conditions.
 
Even before the FAA grants a UAS business owner’s petition for Section 333 exemption, the business owner needs to consider the liability aspects of his new business. If you are a UAS business entrepreneur and have questions about your new drone business, give The Ison Law Group a call at either 855-LAW-1215 or 863-712-9475.

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