READ OUR BLOG

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.

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.

Lakeland Web Design by BrightSky Web Design