Section 333 Attorney or Section 333 Preparation Company?

  • ON Dec 17, 2015
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  • BY Christopher Ison
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  • IN Drone Law

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

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

 

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

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

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

Is Recreational Drone Registration Practical?

  • ON Nov 03, 2015
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  • BY Christopher Ison
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  • IN Drone Law

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

DUI and the FAA: What Should I Do?

  • ON Nov 02, 2015
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  • BY Christopher Ison
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  • IN Pilot Law

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

 

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

 

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

 

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

 

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

 

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

 

As soon as you are involved in a DUI situation, it is important to contact your FAA Enforcement Attorney. Getting your Aviation Attorney involved in the process early on is a good idea, as he or she can ensure that you get the appropriate counseling and evaluation in anticipation of a FAA certificate action. If you have questions about a DUI charge in Florida, or have questions about a DUI and the FAA on a national basis, feel free to call an Aviation Attorney at The Ison Law Firm. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com. 

Liability in the Dynamic Airways Boeing 767 Engine Fire

Let’s discuss liability in the Dynamic Airways Boeing 767 engine fire that occurred at the Fort Lauderdale/Hollywood International Airport on October 29, 2015. The plane, a Boeing 767 bound for Caracas, Venezuela, had a serious engine fire while taxiing for departure on Taxiway B. According to the Air Traffic Control (“ATC”) feed, everything happened relatively quickly. The aircraft behind the Dynamic 767 informed ATC that the “live” engine was leaking what appeared to be fuel. Moments later, that engine and a large portion of the port side of the aircraft were engulfed in flames. Fortunately, Broward County Fire Department responded to the scene and all passengers were able to evacuate within six minutes via the aircraft’s emergency exit slides. What is unfortunate, however, is that more than 20 people were injured, landing at least one passenger in the ICU with serious burns and one child injured. Furthermore, the Fort Lauderdale/Hollywood International Airport was closed for an indefinite period while emergency teams and airport administration contained the situation.

 

Time and time again, we are told that the most dangerous part of flying is “the drive to the airport.” Today, for some unfortunate souls onboard the Dynamic 767 bound for Caracas, that saying was a colossal farce. So who is to blame? Who do we hold responsible for the fact that some Dynamic passengers took a ride in an ambulance rather than an airworthy Boeing 767? Can those individuals have any redress for the injuries that they have sustained?

 

As of right now, it is too soon to tell who is at fault. Was it the airline, the pilots, the mechanics, ground crew, aircraft/engine manufacturers, and/or some unknown entity? It’s hard to say this early into the investigation. However, there is at least one early indications that seemingly spells disaster for both Dynamic Airways’ and the engine manufactures…the fuel leak. The two primary questions about the fuel leak are: what caused the leak and did the leak have anything to do with the fire? From there, an apportionment of blame can begin to sort itself out.

 

Well, what does “the blame game” have to do with potential torts in Dynamic Airways’ engine fire? Think of it this way. If the fire was caused by some sort of design defect in the engine, there may be a potential claim for strict product liability against the engine’s manufacturer. This theory of damage recovery allows the plaintiff to avoid showing negligence on the part of the manufacturer. Instead, the mere fact that the product was defective and caused injury is sufficient to allow the plaintiff to sue. Depending on the law in your state, for the most part, a strict liability claim will have four elements: 1) the defendant must be a merchant; 2) the product is defective at the time it is sold by the defendant; 3) the product is unreasonably dangerous; 4) the plaintiff suffers personal injury or property damage caused by the defective property. In the scenario where the engine was improperly designed, those injured on the Dynamic flight could potentially have a case using the strict liability theory.

 

Think of another scenario where the pilots of the Dynamic Airways’ 767 knew of the fuel leak and did nothing to correct or investigate the issue. In this scenario, you will likely have to also assume that the leak had something to do with the fire. This situation speaks to the tort theory of negligence. Negligence is an unintentional tort involving carelessness that causes harm. Generally, the tort of negligence requires the plaintiff to meet 4 burdens: 1) the defendant owed the plaintiff a duty of care; 2) the defendant breached that duty of care; 3) the defendant’s breach is the proximate cause of the plaintiff’s injury; and 4) the plaintiff suffers injury that is protected under the law. In the scenario of pilot negligence, you could see where those individuals injured on the flight could say that the pilot owed a duty and that the pilot breached that duty by not seeing to it that the leak was corrected, thus causing their injury. You could also see that in the world where a mechanic incorrectly/failed to fix/diagnose/maintain the engine, the injured parties could work up a case for negligence.

 

Nonetheless, those with significant injuries do not want to sue pilots and mechanics for their catastrophic injury. Why? Simply put, these aren’t the people with the money. Rather, the pilots and the mechanics would rather need to worry about a FAA Enforcement Action being brought against them in that sort of situation; however, that is not to say that they could not also be sued for negligence.

 

As the investigation continues, it will be possible to give more poignant analysis on the situation. None of the above is to be considered legal advice, rather brief legal musings on the details as reported. There are a lot of moving parts to be considered in a case such as this (like will the Montreal Convention come in to play, etc)…much of which are too lengthy to recite in a blog article. If you have questions about the Dynamic Airways Boeing 767 engine fire, call an aviation attorney at The Ison Law Firm…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

Operating A Drone Near An Airport: A Guide

In order to avoid ending up on the nightly news or worse, the FAA’s list of civil penalty recipients, it’s a good idea to have at least a cursory understanding of the regulations/rules in place for operating a drone near an airport. There are so many UAV operators out there right now that don’t know how to go about legally operating their drone near an airport and/or what interaction they need to have with the airport/ATC/FAA before doing so. Most of the problem is that the FAA/DOT has dropped the ball and has failed to make crystal clear rules for UAV operators. Instead, drone operators are treated like the red-headed step-child of the aviation community and forced to second guess every move they make. As of right now, there are at least three things required for flying a drone: 1. Aircraft; 2. Controller; 3. A prayer that your operations are legal. Be that as it may, the following will hopefully guide your Section 333 operation toward being legal, should you need to fly your drone near an airport.

 

So what are the general rules? The golden rule from the FAA on UAV operations near airports is: don’t fly within 5 miles of an airport unless you contact the airport and control tower before flying. To that end, the FAA requires that a drone not be flown within 3 NM from an airport with a published instrument flight procedure, but not an operational tower, or 2 NM from an airport without a published instrument flight procedure or an operational tower, or 2 NM from a heliport with a published instrument flight procedure. That seems pretty simple…right?

 

The main question becomes: what do I do if I need to go within the area prohibited for UAVs? Let’s say for example you run a wedding photography business and your client is getting married at an outside venue and requires aerial footage. Luckily, you have a Section 333 Exemption and all of the necessary documentation to operate your drone commercially. But wait a minute…the wedding venue is within 5 NM of an airport with a published instrument flight procedure and operational tower. The first thing you will want to do is find the number for the Air Traffic Control tower at issue. The telephone numbers for most Air Traffic Control towers are available online at www.acukwik.com. When you call ATC, be prepared to supply them with your flight path and the location, date, and time of your requested operation. For example, you might call and say, “Good Morning, my name is Bill Smith and I plan to fly my 3D Robotics UAV over the Sable Wedding Pavilion tomorrow at 9:30 AM. I will circle the area for roughly 45 minutes at approximately 150 feet.” Generally, you will want to tell ATC who you are, what you are going to fly, where you want to fly it, and when you want to fly it. Make sure that you actually obtain permission from ATC before flying within their airspace. You may even want to provide ATC with your cell phone number so that they can get in touch with you if necessary.

 

Secondly, the FAA calls for drone operators to contact the airport before entering its airspace to conduct a drone flight. Most importantly, there will be times where you may want to fly within 2 NM of an airport with a published instrument flight procedure and no ATC tower, in which case you will only have to call the airport. Who do you call at the airport? The best person(s) to call at an airport for legal purposes would be the office of the airport administrator. Essentially, these are the CEOs of the airport. Again, you will want to advise this office of your flight path and the location, date, and time of your requested operation. If you cannot get ahold of anyone at the office of the airport administrator and you are working with a general aviation airport, you may want to try calling the fixed based operator (“FBO”). A FBO is typically the entity that provides fuel, pilot services, and aircraft services, etc. You can typically find the telephone number to both the office of the airport administrator and FBO online at www.airnav.com.

 

For consistent flight within the 5 NM barrier, the airport administrator may request a letter of agreement between you and the airport. In most cases, this is not necessary and is something that the FAA will not require. If an ATC tower or airport administrator, consult with your drone attorney or Section 333 attorney.

 

You will also note that restrictions are placed on airports with a published instrument approach. Most airports have some sort of instrument approach associated with one of its runways, be it a GPS approach, ILS approach, VOR approach, etc. Typically, you can determine whether a particular airport utilizes an instrument approach by reviewing the airport specifics online at www.airnav.com.

 

Maybe you have also heard of the term “No Drone Zone.” There are some areas in the country, such as Washington, D.C., in which the FAA explicitly prohibits the operation of UAVs. It is critical to make sure that the airport and area in which you want to fly are not under such a flight restriction. If so, you had better make other plans for your operation’s flight path.

 

And one last thing that all UAV pilots should always remember when flying, whether or not within an airport’s drone-restricted airspace, is to ALWAYS remain clear of other aircraft. While there haven’t been any conclusive tests completed to prove that a small unmanned aerial vehicle could cause catastrophic harm or any harm at all to a general aviation or commercial aircraft, it is highly advised that you not be the drone operator to test the theory. Such unauthorized drone operation could result in property damage, death, and/or FAA civil penalties for unauthorized UAV operation.

 

If you have any questions about how to operate within an airport’s drone-restricted airspace, be sure to call a drone attorney at The Ison Law Firm. Or, if you feel that you have violated a rule or regulation mentioned in this article, feel free to reach out. We are standing by to vector you through legal turbulence…call us at 863-712-9472 or e-mail to Anthony@ThePilotLawyer.com.

 

 

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