BFV Perspectives, Drones in Business, | Oct 18, 2017

Drone Law Analysis: Trends from Recent Cases

Below is this author’s present perspective on the four best known (as of today) drone law decisions and some lessons to be learned.

In Huerta v. Pirker, [1] the National Transportation Safety Board held that “model aircraft” a/k/a drones are just a subset of “aircraft” and therefore subject to FAA regulation, however limited or extensive the boundaries of that regulation may be. Federal law controls what is or is not an unmanned aircraft, federal rules apply, and the FAA’s own interpretation of its rules and regulations will be given significant deference and usually be controlling. The lesson here is that drone operators are aviators in the aviation business, regardless of how casual or pleasant the mission, and they will be held accountable for following the rules of the “air.” Read Part 107 and stay informed through the FAA’s UAS website.

Huerta v. Haughwout,[2] showcases the FAA’s incredibly broad power to investigate, which may be a shock to many drone operators. Haughwout attached a gun and later a flame thrower to a drone and took video of the drone firing bullets or flames, respectively. YouTube videos of these escapades triggered an FAA investigation. The FAA issued broad deposition and document subpoenas for “all” documents related in any manner to Haughwout’s “use of an unmanned aircraft” and the date, time, and location of all his photo- or videographic projects using a UAS.

Haughwout agreed to comply but only if the FAA first articulated what the alleged violation was. Though sympathetic to Haughwout’s argument, the district court agreed that the FAA could force compliance without articulating or pointing to any specific violation. [3]  This case demonstrates the broad, but by no means unlimited, power of the FAA to compel burdensome discovery even if no violation has been committed. At this point, the FAA is not a friend but an adversary. Good business practices require operators to consider the possibility of having records requested or being asked to testify.  Understand how to protect trade secrets and confidential client or business information that may be requested. Identify counsel to be called if a subpoena is issued, and consult with your attorney before producing anything.

Taylor v. Huerta[4] was a relatively simple case in which the D.C. Court of Appeals pushed back on the FAA’s attempt to exceed its statutory powers. In December 2015, the FAA issued an emergency rule without a notice and comment period requiring all persons intending to operate drones, including model aircraft, to register with the FAA.  The Court noted that Section 336(a) of the FAA Modernization and Reform Act of 2012 specifically states that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” It easily concluded that the registration requirement was a rule regarding model aircraft and found registration “unlawful as applied to model aircraft.” This case illustrates that there are recognized limits on the FAA’s authority, but that those limits have to be enforced. Like most agencies, the FAA will test the limits of its authority. 

Singer v. City of Newton[5] decided in September 2017, was the first federal court decision to consider, head on, how FAA regulations preempt state or local laws concerning UAS. The plaintiff in Boggs v. Merideth[6] had tried to get analogous issues before a federal court in Kentucky, but his case was dismissed on jurisdictional grounds. 

Singer is important both because it identifies specific categories of regulations that must give way to federal law, and because the District Court like other courts relied heavily on FAA documents. Among other things, the city ordinance at issue required all drone owners to register with the City Clerk, imposed altitude and flight-path restrictions, and prohibited all flights beyond visual line of sight.

Each challenged provision was held to be pre-empted by federal law. The FAA’s registration system is the exclusive registration requirement for aircraft being flown under Part 107. (Singer brought the case as a Part 107 pilot.). Provisions prohibiting ALL flights over certain property or without the express permission of land owners amount to impermissible regulation of the National Air Space and interfere with the FAA and Congressional goal of incorporating UAS into the NAS.  Banning flights beyond visual line of sight regulates how UAS are operated, trespasses on the exclusive purview of the federal government regarding aviation safety, and prohibits what the federal regulations allow through the waiver process. In reaching these conclusions, the judge relied heavily on the FAA’s “State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet” published December 17, 2015. 

Singer signals that non-federal laws about where or how UAS may be flown are pre-empted.  Laws that prohibit what the FAA regulations allow directly or by waiver are preempted. Such restrictions involve air safety or operation within the NAS, which are areas over which the FAA has exclusive jurisdiction.  To avoid preemption, some state statutes prohibit using a drone to photograph certain places or to use images from drones in certain ways.  Other states prohibit launching or landing from governmental properties, but such laws seem tedious to enforce. 

If faced with a statute that appears to be pre-empted, generally several options exist (1) comply with the local law; (2) do not comply with the local and if cited, challenge the statute in federal court; (3) seek declaratory judgment that the law is preempted; and/or (4) seek repeal of the law. All these options have risk and “results may vary.” In any event, a business using drones will need to be aware of local laws and have a plan for dealing with them.

If you would like guidance about drone law, need to incorporate drones into your business model or have any other questions about the use —or misuse of drones, please contact me.

[1] Docket CP-217, NTSB Order No. EA-5730 (November 18, 2014).

[2] 2016 WL 3919799 (D. Conn. July 18, 2016).  The FAA never pursued enforcement of the regulations.

[3] Whereas Pirker urged that a drone couldn’t be classified as an aircraft, Haughwout took the opposite route. He conceded that drones are “aircraft,” but so was everything else that became airborne.  In fact, he argued that the definition of aircraft was so broad as to be meaningless. Thus, until the limit of the FAA’s authority was established, Haughwort should not have to comply with the subpoenas.

[4] 856 F.3d 1089 (D.C. Cir. 2017).

[5] Case No. 17-10071-WGY (D. Mass. September 21, 2017).

[6] Memorandum Opinion, (Doc. 20), Case No. 3:16-CV-00006-TBR (W.D. Ky. March 21, 2017).

BFV Perspectives, Drones in Business, | Oct 18, 2017
Lydia M. Hilton
Lydia M. Hilton

Lydia Hilton knows bankruptcy – and drones. Having spent more than 25 years concentrating on real estate litigation and bankruptcy matters, today Lydia also applies that versatility to the highly entrepreneurial business opportunities within unmanned aircraft systems (UAS), a/k/a “drones.”