Saturday, October 31, 2015

FAA Proposes $1.9 Million Fine for Unauthorized Drone Use - Part Two

As discussed in the prior post, the ramifications of the proposed $1.9 million civil penalty against SkyPan International, Inc. by the Federal Aviation Administration are significant. 

As the wave of UAS activity in the United States mounts and will increase substantially in the future (the FAA estimates one million drones will be sold during the upcoming Christmas holidays in  2015 alone), the FAA has implemented a tripartite strategy to stay ahead of the rash of unsafe and  unauthorized activities which will inevitably follow in the future. 

The first leg of the strategy is education, which involves several public outreach programs involving the FAA.  One example is the “Know Before You Fly” educational campaign, which provides prospective UAS operators with information and guidance they need to fly safely and responsibly online at Another is B4UFLY.  B4UFLY is a smartphone app that the FAA says users will be able to access before they operate their unmanned aircraft to determine  whether there are any restrictions or requirements in effect at the location where they want to fly. On August 28, 2015, the FAA indicated that it released B4UFLY to approximately 1,000 beta testers, including members of industry, government, and the public.

According to the FAA, this limited beta test is expected to run for several months, after which the FAA plans to make a final version of B4UFLY available for the general public. The beta version of the app is for iOS devices only, but the FAA intends to release a future version for both iOS and Android devices.

The FAA indicates that key features of the B4UFLY app include:
  • A clear "status" indicator that immediately informs the operator about their current or planned location. For example, it shows flying in the Special Flight Rules Area around Washington, DC is prohibited
  • Information on the parameters that drive the status indicator
  • A "Planner Mode" for future flights in different locations
  • Informative, interactive maps with filtering options
  • Links to other FAA UAS resources and regulatory information
The second leg of the FAA strategy to limit the amount of unsafe UAS incidents involves an enforcement partnership with local law enforcement authorities. On January 8, 2015, the FAA released a document entitled Law Enforcement Guidance For Suspected Unauthorized UAS Operations, here. The document discusses, inter alia, the law enforcement community’s vital role in deterring, detecting and investigating unsafe operations:

State and local police are often in the best position to immediately investigate unauthorized UAS operations, and as appropriate, to stop them. The document explains how first responders and others can provide invaluable assistance to the FAA by:
·   Identifying potential witnesses and conducting initial interviews
·   Contacting the suspected operators of the UAS or model aircraft
·   Viewing and recording the location of the event
·   Collecting evidence
·   Identifying if the UAS operation was in a sensitive location, event or activity
·   Notifying one of the FAA’s Regional Operation Centers about the operation as soon as possible

The need for this partnership is obvious.  The FAA would require  an army of enforcement employees to control the flood of new UAS activity that will assuredly commence in the not too distant future.  Relying on the assistance of local law enforcement officials makes sense both from a practical and budgetary perspective.

The FAA’s budget for the personnel responsible for regulating the UAS miscreants is illustrative of the enormous practical difficulties facing the agency,  In 2009, the budget for the Office of General Counsel was approximately $43.5 million, and the office had 246 full-time employees.  Those numbers grew to $47.6 million and 252 FTE in 2012.  By 2014, those numbers dipped to $44.19 million and 233 FTE, and in 2015, $44.24 million and 236 FTE.  The requested amounts in the FAA budget for 2016 are $44.786 million and 236 FTE.  These static budget amounts are not nearly sufficient to support the regulatory and enforcement efforts needed in the future to combat  what is anticipated as the onslaught of problems that will arise from UAS miscreants. 

Third, there is new regulation and enforcement.  As discussed elsewhere in this blog, the FAA in February, 2015, proposed rules for the commercial use of UAS in the United States.  It is expected that the final rules will be issued in the early to middle part of 2016.  As stated on my comments filed on behalf of NetMoby, Inc., in the Federal Aviation Administration (FAA), Department of Transportation’s Notice of Proposed Rulemaking in Docket No. FAA-2015-0150, Operation and Certification of Small Unmanned Aircraft Systems, the FAA's Notice Of Proposed Rulemaking for small UAS is an extraordinary moment for 21st-century technology.  The first generation of regulations for small UAS has the potential to revolutionize air traffic not only across the United States of America but around the world. This is particularly true given the anticipated increase in UAS use, and concomitant rise in unsafe behavior, in the near future.

In addition, the Department of Transportation and Federal Aviation Administration has opened Docket No. FAA–2015–4378  seeking comments from the public concerning clarification and a request for information in Docket No. FAA–2015–4378 entitled “Clarification of Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems and Request for Information Regarding Electronic Registration.”  See the text of the notice at 80 FR 63912 (October 22, 2015) or here.   In essence, the FAA seeks to require the registration of all UAS and is seeking comments on the best method for allowing owners of UAS to register their aircraft with the FAA.  The FAA states

This document requests information and recommendations regarding what information and registration platform would be appropriate for UAS registration and ways to minimize the burden to the regulated community. In addition, we request comment on which UAS, based on their weight or performance capabilities, warrant a continued exercise of discretion with respect to requiring registration because of the negligible risk they pose to the national airspace system (NAS).

Registration will be an enormous undertaking, both to establish a user-friendly and streamlined platform for the public to use and also to allow the FAA to compile a database for access by the public.  The reason for the FAA’s admitted change in course on the proposed requirements of registration for all UAS, including model aircraft, is of course safety.  The FAA states in the Clarification that:

During the past several months, we have received increasing reports of unauthorized and unsafe use of small UAS. Pilot reports of UAS sightings in 2015 are double the rate of 2014. Pilots have reported seeing drones at altitudes up to 10,000 feet, or as close as half-a-mile from the approach end of a runway. In recent weeks, the presence of multiple UAS in the vicinity of wild fires in the western part of the country prompted firefighters to ground their aircraft on several occasions. These UAS operations are unsafe and illegal. However, only a small percentage of these incidents have resulted in enforcement actions against individuals for unsafe or unauthorized UAS operation because identifying an individual or entity responsible for the dangerous operation of UAS is very difficult.

Finally, the third tool is the FAA's enforcement authority. The $1.9 million fine proposed against SkyPan International, Inc.,  should serve as a tremendous deterrent to other companies in the business community contemplating the unauthorized use of drones should the enforcement action be brought to a conclusion with the imposition of a fine in the neighborhood of the amount proposed.  Whether such a fine will serve as a deterrent to the recreational user community remains to be seen.

Saturday, October 24, 2015

FAA Proposes $1.9 Million Fine for Unauthorized Drone Use - Part One

On October 6, 2015, the Federal Aviation Administration (FAA)  announced the largest civil penalty the FAA has proposed against an Unmanned Aircraft System (“UAS”) operator for endangering the safety of the U.S. National Airspace. 

The FAA proposed a $1.9 million civil penalty against SkyPan International, Inc. of Chicago. Between March 21, 2012, and Dec. 15, 2014, SkyPan allegedly conducted 65 unauthorized commercial UAS flights over various locations in New York City and Chicago between March 21, 2012 and Dec. 15, 2014.  The flights involved aerial photography.  Of those, 43 flew in the highly restricted New York Class B airspace.  These unauthorized operations took place in some of the country’s most congested airspace and heavily populated cities.  These unauthorized operations violated airspace regulations and various UAS operating rules, the FAA alleges. The FAA noted in its press release that the operations which were the subject of the FAA’s enforcement letter were illegal and not without risk.  

The FAA’s press release quoted FAA Administrator Michael Huerta .  “Flying unmanned aircraft in violation of the Federal Aviation Regulations is illegal and can be dangerous,” said Huerta.  “We have the safest airspace in the world, and everyone who uses it must understand and observe our comprehensive set of rules and regulations.”  In an interview with National Public Radio, Huerta said the proposed fine is designed to send a message that action will be taken against those who do not safely operate unmanned aircraft in compliance with FAA regulations. 

SkyPan allegedly operated the 43 flights in the New York Class B airspace without receiving an air traffic control clearance to access it as required by 14 C.F.R. §91.131   (Operations in Class B airspace.)   Additionally, the agency alleged the aircraft was not equipped with a two-way radio transponder, and altitude-reporting equipment as required by 14 C.F.R. §91.131 and §91.215 (a).

The FAA further alleges that on all 65 flights, the aircraft lacked an airworthiness certificate which is generally required by 49 U.S.C. § 44711(a)(1)  and effective aircraft registration as required by 49 U.S.C. § 44101(a).  In addition, SkyPan did not have a Certificate of Waiver or Authorization issued by the FAA for the subject operations.  SkyPan operated the aircraft in a careless or reckless manner so as to endanger lives or property, the FAA alleges.  See 49 U.S.C. § 44701 et seq. and 49 U.S.C. § 40103 et seq.  
SkyPan has 30 days after receiving the FAA’s enforcement letter to respond to the agency.

The regulatory implications of the FAA’s proposed fine are substantial.  These ramifications will be examined in the second part of this post.