Below is this author\u2019s present perspective on the four best known (as of today) drone law decisions and some lessons to be learned.<\/p>\n\n\n\n
In Huerta v. Pirker<\/em>, [1]<\/span><\/a> the National Transportation Safety Board<\/a> held that \u201cmodel aircraft\u201d a\/k\/a<\/em> drones are just a subset of \u201caircraft\u201d and therefore subject to FAA regulation, however limited or extensive the boundaries of that regulation may be. Federal<\/em> law controls what is or is not an unmanned aircraft, federal rules apply, and the FAA\u2019s 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 \u201cair.\u201d Read Part 107 and stay informed through the FAA\u2019s UAS website.<\/p>\n\n\n\n Huerta v. Haughwout<\/em>,[2]<\/span><\/a> showcases the FAA\u2019s 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 \u201call\u201d documents related in any manner to Haughwout\u2019s \u201cuse of an unmanned aircraft\u201d and the date, time, and location of all his photo- or videographic projects using a UAS.<\/p>\n\n\n\n Haughwout agreed to comply but only if the FAA first articulated what the alleged violation was. Though sympathetic to Haughwout\u2019s argument, the district court agreed that the FAA could force compliance without articulating or pointing to any specific violation. [3]<\/span><\/a> 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.<\/p>\n\n\n\n <\/a>Taylor v. Huerta<\/em><\/a>[4]<\/strong><\/span><\/a> was a relatively simple case in which the D.C. Court of Appeals pushed back on the FAA\u2019s 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 \u201cmay not promulgate any rule or regulation regarding a model aircraft.\u201d It easily concluded that the registration requirement was a rule regarding model aircraft and found registration \u201cunlawful as applied to model aircraft.\u201d This case illustrates that there are recognized limits on the FAA\u2019s authority, but that those limits have to be enforced. Like most agencies, the FAA will test the limits of its authority. <\/p>\n\n\n\n Singer v. City of Newton[5]<\/strong><\/span><\/a><\/em> 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]<\/strong><\/span><\/a><\/em> had tried to get analogous issues before a federal court in Kentucky, but his case was dismissed on jurisdictional grounds. <\/p>\n\n\n\n Singer <\/em>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.<\/p>\n\n\n\n Each challenged provision was held to be pre-empted by federal law. The FAA\u2019s 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 <\/em>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\u2019s \u201cState and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet\u201d published December 17, 2015. <\/p>\n\n\n\n Singer <\/em>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. <\/p>\n\n\n\n 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 \u201cresults may vary.\u201d In any event, a business using drones will need to be aware of local laws and have a plan for dealing with them.<\/p>\n\n\n\n If you would like guidance about drone law, need to incorporate drones into your business model or have any other questions about the use \u2014or misuse of drones, please contact me<\/a>.<\/p>\n\n\n\n [1]<\/span><\/a> Docket CP-217, NTSB Order No. EA-5730<\/a> (November 18, 2014).<\/p>\n\n\n\n [2]<\/span><\/a> 2016 WL 3919799 (D. Conn. July 18, 2016). The FAA never pursued enforcement of the regulations.<\/p>\n\n\n\n [3]<\/span><\/a> Whereas Pirker urged that a drone couldn\u2019t be classified as an aircraft, Haughwout took the opposite route. He conceded that drones are \u201caircraft,\u201d 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\u2019s authority was established, Haughwort should not have to comply with the subpoenas.<\/p>\n\n\n\n [4]<\/span><\/a> 856 F.3d 1089 (D.C. Cir. 2017).<\/p>\n\n\n\n [5]<\/span><\/a> Case No. 17-10071-WGY (D. Mass. September 21, 2017).<\/p>\n\n\n\n