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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.

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.

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.

24

May,2015

Drone Use for Businesses: FAA Makes Petitioning for Section 333 Exemption Easier With “Blanket” COA

With the commercial success of the DJI Phantom and DJI Inspire, many Unmanned Aircraft Systems (UAS) (popularly referred to as drones) are becoming economically viable for certain industries. Consequently, whether your business is in real estate, construction, agriculture, filmmaking, or an industry that could benefit from the use of a UAS, many businesses are taking a look at how drones can supplement their productivity.
 
In order to fly a UAS for commercial purposes, the drone operator must meet certain standards put forth by the FAA. Since the use of drones is a new area of aviation, many of the Federal Aviation Regulations (F.A.R.s) cannot, or will not, apply to drone usage and flights. How, then, can a business fly a drone for commercial purposes and not run afoul of the F.A.Rs or FAA?
 
Under the FAA Modernization Act of 2012, a business can petition the FAA for a “Section 333” exemption, allowing for the piloting of a UAS even though the drone does not meet the requirements of certain F.A.Rs. If the FAA grants a Section 333 petition, a business may operate a drone for commercial purposes.
 
While the FAA only recently began granting Section 333 exemptions for commercial drone, the FAA has streamlined the exemption process if a business can operate within a certain set of criteria – referred to as a “blanket” Certificate of Authorization or Waiver (COA). Under the new policy, the FAA will grant a COA for flights at or below 200 feet to any UAS operator with a Section 333 exemption for aircraft that weigh less than 55 pounds, operate during daytime Visual Flight Rules (VFR) conditions, operate within visual line of sight (VLOS) of the pilots, and stay certain distances away from airports or heliports.
 
Under this “blanket” COA, drone operators need to be 5 nautical miles (NM) from an airport having an operational control tower, 3 NM from an airport with a published instrument flight procedure, but not an operational tower, 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.
 
The “blanket” 200-foot COA allows flights anywhere in the country except restricted airspace and other areas, such as major cities, where the FAA prohibits UAS operations. Previously, a business had to apply for and receive a COA for a particular block of airspace, a process that can take 60 days. The FAA expects the new policy will allow companies and individuals who want to use UAS within these limitations to start flying much more quickly than before.
 
If your business need to commercially operate a UAS, but the “blanket” COA is too restrictive, your business must obtain a separate COA specific to the airspace required for that operation.
 
The Ison Law Group is prepared and equipped to handle your petition for Section 333 exemption under the FAA Modernization Act of 2012. Give us a call today at 855.LAW.1215 or 863.712.9475.

03

May,2015

How to Get a Section 333 Exemption From the FAA

If you want to use an unmanned aerial system for your business or other commercial purpose, you will need to know how to get a Section 333 exemption from the FAA. The FAA requires that any aircraft operation (including UAS operations) in the national airspace (NAS) acquire pilot licensure and operational approval. Section 333 of the FAA Modernization and Reform Act of 2012 (FMRA) grants the Secretary of Transportation the authority to determine whether an airworthiness certificate is required for a UAS to operate safely in the National Airspace System (NAS).
 
This authority is being used to grant authorization for certain UAS to perform commercial operations prior to the finalization of Congress’ Small UAS Rule. The Section 333 exemption process provides operators a competitive advantage in the NAS to use UAS in the marketplace, thus discouraging illegal operations and improving safety. Once you know how to get a Section 333 exemption, you can obtain your Section 333 exemption and begin taking advantage of the economic benefits.
 
As recently as April 2015, the FAA announced that it had begun to use a “summary grant” process to speed up Section 333 approvals. With these procedures in place, the FAA continues to review each individual application, but will issue a summary grant where it finds that it has already granted a previous exemption similar to the new request.
 
It is important, however, that your application for Section 333 exemption be properly drafted. Contact your aviation attorneys at The Ison Law Group and we will discuss drafting an application for you. Call us toll-free at 855-LAW-1215.

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