2017 All-Ohio Legal Forum. The Sky Is Falling?... Changes in Drone Law

Transcription

1 2017 All-Ohio Legal Forum The Sky Is Falling?... Changes in Drone Law Aviation Law Committee 1.5 General CLE Hours August 23 August 25, 2017 Cleveland

2 Speaker Biographies William F. Hayes, Esq. Attorney at Law Bowling Green, Ohio Mr. Hayes received his BBA from The University of Toledo and his JD from The University of Toledo College of Law. His professional memberships include the Ohio State Bar Association (Ohio Lawyers Assistance Committee; Chair, Aviation Law Committee), Henry County Bar Association, Wood County Bar Association, and Ohio Bar College. In addition to being a private practitioner, Mr. Hayes has over 30 years of experience in the fields of criminal and traffic law. He is also an FAA Commercial Single- and Multiengine pilot and flight instructor, a ground instructor, and an advanced ground instructor. Mr. Hayes has been a writer and columnist for Plane and Pilot News, a monthly column in Aviation Law, since He has taught at The University of Toledo College of Law and Bowling Green State University and is a regular speaker at OSBA CLE seminars. Jason Lorenzon, Esq. Lorenzon Law LLC Independence, Ohio Mr. Lorenzon received his BA from Western University and his JD from Cleveland State University Cleveland - Marshall College of Law. His professional memberships include the Ohio State Bar Association, Florida Bar Association (Aviation Law Committee), Airplane Owners and Pilots Association (Panel Attorney), American Bar Association, Akron Bar Association, and America n Immigration Lawyers Association. He is a managing partner of his firm and practices in the areas of criminal defense, immigration, and civil litigation. Mr. Lorenzon was recently honored for his work in foreclosure defense by being awarded the Volunteer of the Year for the Community Legal Services of Akron Award. He was also named a Rising Star by Ohio Super Lawyers for the area of immigration in Mr. Lorenzon is a frequent speaker and author on topics related to his areas of practice. For additional information, please visit Stewart D. Roll, Esq. Climaco, Wilcox, Peca, Tarantino & Garofoli Co., LPA Cleveland, Ohio Mr. Roll received his BGS from Ohio University and his JD from Gonzaga University School of Law. His professional memberships include the Ohio State Bar Association and American Bar Association, where he serves on several committees. Mr. Roll is a principal of his firm, after serving in that capacity for 16 years at his prior firm as chair of its litigation department. He is as an arbitrator, resolving commercial disputes for the American Arbitration Association and National Arbitration Forum. For the first 10 years of his practice, Mr. Roll was assistant general counsel for a Fortune 500 corporation, supervising litigation and providing counsel in the purchase and sale of companies and license of technology, while traveling throughout several continents. He has been given Martindale-Hubbell s highest rating, AV preeminent, for legal ability and ethical standards. For additional information, please visit

3 The Sky Is Falling: Drone Regulation Update Jason T. Lorenzon, Esq. Lorenzon Law LLC Independence, Ohio Table of Contents Overview... 1 Part A: Current FAA UAS Enforcement... 3 A. Current FAA Enforcement Activities... 3 Discussion... 3 Section Basic Legal Mandates... 3 An Unmanned Aircraft is an Aircraft that Must Comply with Safety Requirements... 4 Model Aircraft Operations... 4 Model Aircraft that Operate in a Careless or Reckless Manner... 5 Commercial and Other Non-Model Aircraft UAS Operations ) 14 C.F.R. Part ) Section 333 Exemptions ) Public Aircraft Operations ) Airworthiness Certification... 6 UAS Compliance with Airspace Security Requirements... 6 UAS Registration Requirements... 7 Section The Role of Law Enforcement... 7 (1) Witness Identification and Interviews... 8 (2) Identification of Operators... 8 The Sky Is Falling: Drone Regulation Update i

4 (3) Viewing and Recording the Location of the Event... 8 (4) Identifying Sensitive Locations, Events, or Activities... 8 (5) Notification... 9 (6) Evidence Collection... 9 B. Responding to an FAA Investigation NASA - Aviation Safety Reporting System Program Administrative Action Legal Enforcement Action C. Recent Case Law FAA v. Skypan International, Inc (a) Skypan Press Release (b) FAA Press Release FAA Enforcement Regulations 14 CFR Part Manin v. Nat'l Transp. Safety Bd. & FAA The Pirker Case Enforcement Action Flowcharts Part B: The Sky Is Falling: Trespass, Nuisance and Privacy A. Commercial vs. Recreational Use: Legal Issues and Liability Fly for Work/Business Fly for Fun Safety Guidelines Additional Resources UAS Over 55 Pounds - The 333 Exemption Noise, Nuisance and Safety Considerations Liability and Other Concerns A. Insurance Coverage B. Civil and Criminal Penalties C. Real Estate Lease Issues and Violations D. Nuisance Laws E State Laws F. Trespass Case Law Bogg v. Merideth G. Private Property Protections for Low Altitude Airspace ii The Sky Is Falling: Drone Regulation Update

5 H. What Constitutes Aerial Trespass? Griggs v. Allegheny County Part C: State and Local Laws, Regulations, and Zoning A. State and local Laws Case Study/Concept Exploration Chicago Chapter 490 Unmanned Aircraft Systems State and Local Drone Law Examples State laws Local laws Drone Use by Public Entities and Law Enforcement California v. Ciraolo Huerta v. Pirker Taylor v. FAA The Sky Is Falling: Drone Regulation Update iii

6 iv The Sky Is Falling: Drone Regulation Update

7 The Sky Is Falling: Drone Regulation Update Jason T. Lorenzon, Esq. Lorenzon Law LLC Independence, Ohio I. Introduction II. III. IV. History of Drones Overview FAA Case Law; Huerta v. Pirker and Taylor v. FAA, 14 C.F.R. Part 101, and 14 C.F.R. Part 107 Zoning Laws V. Law Enforcement and Fourth Amendment Issues VI. Current Local Laws The Sky Is Falling: Drone Regulation Update 1

8 2 The Sky Is Falling: Drone Regulation Update

9 Current FAA UAS Enforcement: The Sky is Falling A. Current FAA Enforcement Activities. FAA has issued the following August Guidance to Law Enforcement Agencies for suspected Unauthorized Drone operations. There is evidence of a considerable increase in the unauthorized use of small, inexpensive Unmanned Aircraft Systems (UAS or drones ) by individuals and organizations, including companies. The FAA retains the responsibility for enforcing Federal Aviation Regulations, including those applicable to the use of UAS. The agency recognizes though that State and local Law Enforcement Agencies (LEA) are often in the best position to deter, detect, immediately investigate, 1 and, as appropriate, 2 pursue enforcement actions to stop unauthorized or unsafe UAS operations. The information provided below is intended to support the partnership between the FAA and LEAs in addressing these activities. Discussion The general public, a wide variety of organizations, including private sector (e.g., commercial companies), non-governmental (e.g., volunteer organizations), and governmental entities (e.g., local agencies) continue to demonstrate significant interest in UAS. The benefits offered by this type of aircraft are substantial, and the FAA is committed to integrating UAS into the National Airspace System (NAS). This integration, however, must address important safety and security considerations. The increasing number of cases of unauthorized use of UAS is a serious concern for the FAA and many of its interagency partners. This document is intended to assist LEAs in understanding the legal framework that serves as the basis for FAA legal enforcement action against UAS operators for unauthorized and/or unsafe UAS operations (Section 1) and to provide guidance regarding the role of LEAs in deterring, detecting, and investigating unauthorized and/or unsafe UAS operations (Section 2). SECTION 1. Basic Legal Mandates The FAA s safety mandate under 49 U.S.C requires it to regulate aircraft operations conducted in the NAS, 3 which include UAS operations, to protect persons and property on the ground, and to prevent collisions between aircraft and other aircraft or objects. In addition, 49 1 At least in terms of initial contact with the suspected offender. 2 Applying any laws falling within the enforcement authority of the LEA in question. 3 The NAS is the common network of U.S. airspace; air navigation facilities, equipment and services, airports or landing areas.... Included are system components shared jointly with the military. See FAA Pilot/Controller Glossary (Apr. 3, 2014), available athttp:// Lorenzon and Roll The Sky Is Falling: Drone Regulation Update 3

10 U.S.C (a) requires the agency to promote safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce and national security. 4 An Unmanned Aircraft is an Aircraft that Must Comply with Safety Requirements An unmanned aircraft is an aircraft as defined in the FAA s authorizing statutes and is therefore subject to regulation by the FAA. 49 U.S.C (a)(6) defines an aircraft as any contrivance invented, used, or designed to navigate or fly in the air. The FAA s regulations (14 C.F.R. 1.1) similarly define an aircraft as a device that is used or intended to be used for flight in the air. Because an unmanned aircraft is a contrivance/device that is invented, used, and designed to fly in the air, it meets the definition of aircraft. In addition, on December 16, 2015, the FAA promulgated an Interim Final Rule (80 Fed. Reg ) that defined Unmanned Aircraft, Model Aircraft, Small Unmanned Aircraft, and Small Unmanned Aircraft System in 14 C.F.R The FAA has promulgated regulations that apply to the operation of all aircraft, whether manned or unmanned, and irrespective of the altitude at which the aircraft is operating. FAA regulations prohibit any person from operating an aircraft in a careless or reckless manner so as to endanger the life or property of another. Model Aircraft Operations An important distinction to be aware of is whether the UAS is being operated for hobby or recreational purposes or for some other purpose. This distinction is important because there are specific requirements in the FAA Modernization and Reform Act of 2012, Public Law , (the Act) that pertain to Model Aircraft operations, which are conducted solely for hobby or recreational purposes. While flying Model Aircraft for hobby or recreational purposes does not require FAA approval, all Model Aircraft operators must operate safely and in accordance with the law. The FAA provides guidance and information to individual Model Aircraft operators about how they can operate safely under current regulations and laws. Guidance may be found at: Section 336(c) of the Act and 14 C.F.R. 1.1 define Model Aircraft as an unmanned aircraft that is (1) Capable of sustained flight in the atmosphere; (2) Flown within visual line of sight of the person operating the aircraft; and (3) Flown for hobby or recreational purposes. Each element of this definition must be met for a UAS to be considered a Model Aircraft under the Act and the regulation. Under Section 336(a) of the Act, the FAA is restricted from conducting further rulemaking specific to Model Aircraft as defined in Section 336(c) so long as the Model Aircraft operations are conducted in accordance with the requirements of Section 336(a). Section 336(a) requires that 4 FAA action on these security concerns support and are informed by the national defense, homeland security, and Law Enforcement statutory responsibilities and authorities of our interagency partners. 4 The Sky Is Falling: Drone Regulation Update

11 (1) The aircraft is flown strictly for hobby or recreational use; (2) The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization; (3) The aircraft is 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; (4) The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and (5) When flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)). Model Aircraft that Operate in a Careless or Reckless Manner Section 336(b) of the Act, however, makes clear that the FAA has the authority under its existing regulations to pursue legal enforcement action against persons operating Model Aircraft when the operations endanger the safety of the NAS, even if they are operating in accordance with Sections 336(a) and 336(c). For example, a Model Aircraft operation conducted in accordance with Section 336(a) and (c) may be subject to an enforcement action if the operation is conducted in a careless or reckless manner so as to endanger the life or property of another. Commercial and Other Non-Model Aircraft UAS Operations UAS operations that do not meet the definition of Model Aircraft, or are not conducted in accordance with Section 336(a) of the Act, may only be operated under FAA rules for UAS or with specific authorization from the FAA. UAS that are not flown for hobby or recreational purposes may be operated through one of four avenues: 1) 14 C.F.R. Part 107: The new regulatory framework enables certain small UAS operations for commercial and other non-hobby purposes. The rule addresses airspace restrictions, remote pilot certification, and operational limits. Read the full regulation at 2) Section 333 Exemptions: The FAA issued these exemptions to authorize certain commercial operations as a bridge to 14 C.F.R. Part 107. These exemptions are valid for two years. Existing Section 333 exemption holders will still be able to operate under the terms of their exemption after Part 107 takes effect. UAS operators who have obtained an exemption must also obtain a Certificate of Waiver or Authorization (COA). The Sky Is Falling: Drone Regulation Update 5

12 3) Public Aircraft Operations 5 : Public aircraft operators must obtain a COA prior to operations. Further information about public aircraft operations is available in Advisory Circular (AC) A, Public Aircraft Operations. 4) Airworthiness Certification: Some UAS are issued an airworthiness certificate that prescribes specific operational provisions for a particular aircraft. Operators of these aircraft must also obtain a COA. It is important to understand that all UAS operations not operated as Model Aircraft under Section 336 of the Act are subject to current and future FAA regulation. At a minimum, any such flights are currently required under the FAA s regulations to be operated within the framework of one of the four means of authorization detailed above. Further, these flights must be conducted with an authorized aircraft (certificated or exempted), with a valid aircraft registration certificate and with a properly certificated pilot. Regardless of the type of UAS operation, the FAA s statutes and the Federal Aviation Regulations prohibit any conduct that endangers individuals and property on the surface, other aircraft, or otherwise endangers the safe operation of other aircraft in the NAS. In addition, States and local governments are enacting their own laws regarding the operation of UAS, which may mean that UAS operations may also violate state and local laws specific to UAS operations, as well as broadly applicable laws such as assault, criminal trespass, or injury to persons or property. As an aircraft, UAS operations (including those involving Model Aircraft) must be conducted in accordance with the airspace-centric security requirements prescribed by the FAA s regulations and various implementation tools used by the FAA, specifically including airspace with special flight rules and Notices to Airmen (NOTAM) that define Temporary Flight Restrictions (TFR). It is important that UAS operators and LEAs be familiar with the airspace restrictions respectively relevant to their operations and their enforcement area of responsibility. Flight restrictions are used to protect, but are not limited to, special security events, sensitive operations (e.g., select Law Enforcement activity, space flight operations, etc.), and Presidential movement. The most up-to-date list of TFRs is available at See Attachment A for reference resources. 6 5 Exemptions under 14 CFR part 11 that rely on Section 333 (Special Rules for Certain Unmanned Aircraft Systems) of the Act for relief from the airworthiness certificate requirement. 6 Attachment A also includes a NOTAM concerning avoidance (including no loitering) over power plants, dams, refineries, industrial complexes, and military facilities. Although not a restriction, this TFR urges aircraft operators to avoid these locations. 6 The Sky Is Falling: Drone Regulation Update

13 UAS Registration Requirements All unmanned aircraft, including those operated exclusively as Model Aircraft, that weigh more than 0.55 pounds and are operated in the NAS must be registered with the FAA by their owner under either 14 C.F.R. Part 47 or Part 48. The FAA will issue a unique registration number that begins with either an N or FA. These numbers must be placed on the unmanned aircraft to be readily visible, or they may be inside a battery compartment or other place in the aircraft, provided no tools are needed to open the compartment. The registration number will be unique to the operator if operating strictly as a Model Aircraft, and unique to the aircraft if operating other than as a Model Aircraft. The operator of the UAS must carry a Certificate of Aircraft Registration in either paper or electronic format and make it available to Law Enforcement upon request. Failure to register a UAS, including Model Aircraft, in accordance with these rules may result in regulatory and criminal sanctions. The FAA may assess civil penalties up to $27,500. Criminal penalties include fines of up to $250,000 and/or imprisonment for up to three years. More information about UAS registration can be found at SECTION 2. The Role of Law Enforcement The FAA promotes voluntary compliance by educating individual UAS operators about how they can operate safely under current regulations and laws. The FAA also has a number of enforcement tools available including warning notices, letters of correction, and civil penalties. The FAA may take enforcement action against anyone who conducts an unauthorized UAS operation or operates a UAS in a way that endangers the safety of the National Airspace System. This authority is designed to protect users of the airspace as well as people and property on the ground. As noted above, however, State and local LEAs are often in the best position to deter, detect, immediately investigate, 7 and, as appropriate, 8 pursue enforcement actions to stop unauthorized UAS operations. Although the FAA retains the responsibility for enforcing FAA s regulations, FAA aviation safety inspectors, who are the agency s principal field elements responsible for following up on these unauthorized and/or unsafe activities, will often be unable to immediately travel to the location of an incident. While the FAA must exercise caution not to mix criminal law enforcement with the FAA s administrative safety enforcement function, the public interest is best served by coordinating and fostering mutual understanding and cooperation between governmental entities with Law Enforcement responsibilities. Although there are Federal criminal statutes that may be 7 At least in terms of initial contact with the suspected offender. 8 Applying any laws falling within the enforcement authority of the LEA in question. The Sky Is Falling: Drone Regulation Update 7

14 implicated by some UAS operations (e.g., 49 U.S.C ), most violations of the FAA s regulations may be addressed through administrative enforcement measures. As with any other civil or criminal adjudication, successful enforcement will depend on development of a complete and accurate factual report contemporaneous with the event. Although certainly not an exhaustive list, Law Enforcement officials, first responders, and others can provide invaluable assistance to the FAA and help deter unsafe UAS operations by taking the actions outlined below: (1) Witness Identification and Interviews. Local Law Enforcement is in the best position to identify potential witnesses and conduct initial interviews, documenting what they observed while the event is still fresh in their minds. In addition, local Law Enforcement is in an optimum position to secure all information necessary for FAA safety inspectors to contact these witnesses in any subsequent FAA investigation. Administrative proceedings often involve very technical issues; therefore, we expect our own safety inspectors will need to re-interview most witnesses. We are mindful that in many jurisdictions, State law may prohibit the transmission of witness statements to third parties, including the FAA. In those circumstances, it is extremely important the FAA be able to locate and conduct independent interviews of witnesses. (2) Identification of Operators. Law Enforcement is in the best position to locate the suspected operators of the aircraft, and any participants or support personnel accompanying the operators. Registration information collected from the device or from the operator can aid in identification and enforcement efforts by the FAA. We continue to identify operators engaged in commercial operations who have not received authorization from the FAA to do so. However, in our enforcement proceedings, we bear the burden of proof, and showing who actually operated the UAS is critical. Therefore, evidentiary thresholds must be met even when using data or video acquired via the internet. Likewise, the purpose for the operation (such as in support of a commercial venture, to further some business interest, or to secure compensation for their services) may become an important element in determining what regulations, if any, may have been violated by the operation. Identification and interview of suspected operators early on will help immeasurably to advance enforcement efforts. (3) Viewing and Recording the Location of the Event. Pictures taken in close proximity to the event are often helpful in describing light and weather conditions, any damage or injuries, and the number and density of people on the surface, particularly at public events or in densely populated areas. During any witness interviews, use of fixed landmarks that may be depicted on maps, diagrams or photographs immeasurably help in fixing the position of the aircraft, and such landmarks also should be used as a way to describe lateral distances and altitude above the ground, structures or people (e.g., below the third floor of Building X; below the top of the oak tree located Y; or any similar details that gives reference points for lay witnesses). (4) Identifying Sensitive Locations, Events, or Activities. The FAA maintains a variety of security-driven airspace restrictions around the country to help protect 8 The Sky Is Falling: Drone Regulation Update

15 sensitive locations, events, and activities through TFRs, Prohibited Areas, and other mechanisms such as the Washington, DC, Flight Restricted Zone (DC FRZ). UAS operations, including Model Aircraft flights, are generally prohibited within these defined volumes of airspace. LEAs should become familiar with the steady-state airspace restrictions active within their area of responsibility, along with as-needed TFRs, which could be instituted to help protect sensitive events (e.g., major gatherings of elected officials) and activities (e.g., Presidential movements). If there is any question as to whether a TFR has been established in a given location, contact the nearest air traffic facility or flight service station for further information or visit for a graphic representation of TFRs locatable by state and effective dates. (5) Notification. Immediate notification of an incident, accident or other suspected violation to one of the FAA Regional Operation Centers (ROC) located around the country is valuable to the timely initiation of the FAA s investigation. These centers are manned 24 hours a day, 7 days a week with personnel who are trained in how to contact appropriate duty personnel during non-business hours when there has been an incident, accident, or other matter that requires timely response by FAA employees. A list of these centers and telephone numbers is included as Attachment B to this letter. FAA Law Enforcement Assistance Program (LEAP) Special Agents are also available to provide investigation support. LEAP Special Agent contact information is included as Attachment C to this letter. (6) Evidence Collection. Identifying and preserving any public or private security systems that may provide photographic or other visual evidence of UAS operations, including video or still picture security systems, can provide essential evidence to the FAA. Many times these systems do not permanently store information but erase it as the system recycles at a given interval. Local Law Enforcement is in the best position to inquire and make initial requests to identify and preserve this form of evidence or obtain legal process for securing this evidence in the context of an investigation of a possible violation of state criminal law. In addition, all UAS that weigh more than 0.55 pounds and are operated in the NAS must be registered with the FAA and must display identification numbers signifying FAA registration, and individuals operating a UAS must carry, in paper or electronic form, an FAA-issued aircraft registration certificate. Note that identification numbers may not be conspicuous from a distance because of the size and nontraditional configuration of some UAS. You can search the registration database for UAS assigned an N-number by using the Look up N-numbers search box on the FAA s homepage: www. faa.gov. UAS that have been assigned an FA-number registration can be verified by contacting your FAA LEAP Special Agent (See Attachment C). Other investigative methods also may prove useful, such as consensual examination of the UAS, equipment trailers, and documentation. However, other Law Enforcement processes, such as arrest and detention or non-consensual searches almost always fall outside of the allowable methods to pursue administrative enforcement actions by the FAA unless they are truly a byproduct of a State criminal investigation. We do not mean to discourage use of these methods and procedures where there is an independent basis for law enforcement officers to The Sky Is Falling: Drone Regulation Update 9

16 use them under State or local law. We simply wish to emphasize that work products intended for FAA use generally should involve conventional administrative measures such as witness interviews, stop and talk sessions with suspected violators, consensual examination of vehicles and equipment, and other methods that do not involve court orders or the potential use of force by Law Enforcement personnel. It is extremely difficult to provide a one size fits all guide to cooperative investigation of suspected unauthorized UAS operations considering the myriad jurisdictions and the associated statutory and constitutional restraints and requirements. State and local officials are urged to use their governmental unit s legal resources and their own management chain to develop acceptable protocols for dealing with these instances. In some situations, there may be legal bars to the sharing of some information or the use of databases designed for conventional Law Enforcement. However, with appropriate data collection during first responses and early reporting to the FAA, Federal, State and local agencies will be in the best position to both collect and share information that may be of interest to each jurisdiction. FAA aviation safety inspectors are adept at coordination with our own legal resources to ensure unauthorized UAS operators are properly accountable for the potential risk they create to both people and property. In addition, we have specially trained inspectors within the FAA UAS Integration Office who can provide expertise in this area. If you have any questions or your agency would like to pursue advance planning on how to address these situations, please feel free to contact your local FAA LEAP Special Agent or the FAA s Law Enforcement Assistance Program Office at (202) or (202) B. Responding to an FAA Investigation. An investigation into an alleged violation of the UAS Regulations may be initiated by various means including Law Enforcement Agencies, FAA routine surveillance or anonymous "tips." There are numerous violations for which a UAS operator may be cited. If it appears that a violation may have occurred, the FAA is required to undertake an investigation. The investigation will normally be conducted by the FAA Flight Standards District Office (FSDO) having jurisdiction over the location at which the alleged violation occurred. For accidents and serious incidents the NTSB may conduct the investigation with the FAA as a participant. Following an occurrence and pursuant to an FAA investigation, the FSDO charged with investigating the matter will normally issue a Letter Of Investigation (LOI) to the certificate holder(s) it believes to be responsible for the alleged violation. This letter generally states that the FAA is investigating a certain incident and that you, the certificate holder, may have violated applicable regulations. The letter will further offer you the opportunity to meet and discuss the matter with an FAA inspector or to provide written comments on the incident which are to be forwarded to the investigating office within 30 days of receipt of the LOI. There is no statutory or regulatory obligation for the certificate holder to reply to the LOI. Likewise, there is no requirement for the FAA to even issue an LOI, and failure to issue an LOI will not preclude the FAA from pursuing subsequent enforcement action. Additionally, and most importantly, any information provided in response to an LOI, either in writing or in person, can be used against the responding party, or other parties in any subsequent enforcement action. 10 The Sky Is Falling: Drone Regulation Update

17 There is no iron clad rule as to whether an individual under investigation should reply to an LOI. After receiving an LOI you should immediately call an attorney familiar with UAS investigations in addition but prior to any Company required notification. Your lawer will advise you of the appropriate action to take on the LOI. If the decision is made to respond to the FAA investigator in person, your lawyer should accompany you. If a written response is more appropriate, your lawyer will prepare or assist you in writing the letter to the FAA. Keep in mind that the investigative process begins upon the occurrence of a possible violation and ends when the FAA either takes administrative action, or forwards the case to FAA Legal for certificate or civil penalty enforcement. Anything you say to the FAA or other Law Enforcement Agency personnel can and may be used against you. Any time you are approached by a representative of the FAA or other Law Enforcement Agency personnel, be extremely careful in what you say. Above all, do not admit to any violation of the regulations. The FAA must prove that a violation was committed. Don't make their job easier. Use any conversation with the FAA to your advantage. Find out as much as possible about the investigator's view of the incident and whether the agency intends to pursue a violation against you. Do not argue the case with the inspector. If the investigating office believes a violation occurred, your argument is unlikely to change their decision. NASA - Aviation Safety Reporting System Program (ASRS) Whenever a possible violation occurs, no matter how insignificant it may seem at the time, a NASA Aviation Safety Reporting System form should be filled out and mailed by each technician involved with the event within ten (10) days of the problem being reported. A blank NASA ASRS Form is available at The Aviation Safety Reporting System invites users of the aviation system and other members of the aviation community to report to NASA actual or potential discrepancies and deficiencies involving the safety of aviation operations. 14 CFR prohibits the FAA from obtaining or using NASA reports in any enforcement action, except in situations involving criminal offenses and accidents, which are wholly excluded from the program. Each Aviation Safety Report has a tear-off portion which contains the information that identifies the person submitting the report. This tear-off portion will be detached by NASA, time stamped, and returned to you as a receipt. Keep the receipt in a safe place. The receipt provides proof of your having filed a report on a specific incident or occurrence. Except in the previously mentioned situation of reports describing accidents or criminal activities, NASA does not make or retain a copy of the ASRS Form Identification Strip. Prompt return of the Identification Strip to the individual is a primary element of the ASRS program's report de-identification process and assures your anonymity. Your client s filing of a NASA report will, in most cases, ensure immunity from sanction. In the event the FAA makes a finding that a violation has been committed, the FAA will not impose either a civil penalty or a certificate suspension if: The Sky Is Falling: Drone Regulation Update 11

18 (1) The violation was inadvertent and not deliberate; (2) The violation did not involve a criminal offense, or accident, or action under Section 609 of the Act which discloses a lack of qualification or competency; (3) The person has not been found in any prior FAA enforcement action to have committed a violation of the Federal Aviation Act or of any regulation promulgated under the Act for a period of five (5) years prior to the date of the occurrence; and (4) The person proves that, within ten (10) days after the violation, he or she completed and mailed a written report of the incident or occurrence to NASA under the ASRP (FAA Advisory Circular No. Oo-4EC, 2485). During the investigatory stage of the action, you should not inform the FAA that you filed a NASA report. Aside from subverting the anonymity of the ASRS Program, the FAA investigator may be inclined to initiate enforcement action or increase the recommended penalty, knowing that you won't actually have to surrender your license or pay a fine because of your immunity under ASRS. While an FAA investigator should not ask if a report has been filed under ASRS, they often do. If asked, respectfully decline to answer. A common misconception regarding the ASRS program is to save disclosure of your report until you really need it. In other words, take a short suspension now if necessary and save your NASA immunity in case you get hit with a longer suspension sometime in the future. In fact, doesn't work that way. You only receive immunity if you haven't committed a violation within five (5) years prior to the date of the present occurrence, regard-less of whether you've taken advantage of NASA immunity on a previous occasion. There is no advantage to saving your NASA Report for a potential future problem if the current action leads to a violation being placed on your record. Remember, immunity applies only to the sanction. A violation will be entered on your record even where the penalty is waived. As a result of its investigation of the incident, the FAA will either take no action, administrative action or forward the case to FAA legal for certificate or civil penalty action. Administrative Action This normally applies to minor violations which do not require the use of legal enforcement action to meet the goals of the FAA's compliance efforts. According to the FAA's internal enforcement and compliance manual, administrative action may be taken in lieu of legal enforcement only when all of the following elements are present (1) No significant unsafe conditions exist; (2) Lack of competency or qualification was not involved; (3) The violation was not deliberate; and 12 The Sky Is Falling: Drone Regulation Update

19 (4) The alleged violator has a constructive attitude toward complying with the regulations and has not been involved in previous similar violations. (FAA Handbook ) There are two types of administrative actions: (1) Warning letter - a "don't do it again letter" (2) Letter of Correction - a "don't do it again letter," plus some type of corrective action to be accomplished by the alleged violator. Administrative action does not charge the technician(s) involved with a violation and does not constitute a formal adjudication of the matter. However, it is entered on the technician's record for a period of two years. The determination of whether an incident merits administrative action or legal enforcement action is highly subjective. Policy varies from one FAA region to another depending upon the relationship between the FSDO and the Regional Counsel, the nature of the violation, and any mitigating factors raised by the alleged violator. There has been an increasing trend within the FSDOs of not exercising their discretionary authority to impose administrative action in lieu of legal enforcement action. Regardless of how minor the alleged deviation, if a violation can be established, they will most likely forward the case to FAA Legal for enforcement action. Legal Enforcement Action Unless the case is dropped or disposed of administratively, the FAA will seek legal enforcement action. See 14 CFR Part 13 below. An appeal to the NTSB stays the effectiveness of the FAA's Order and permits you to retain your license pending the outcome of the appeal. Once appealed, the case is assigned to an Administrative Law Judge (ALJ) for a full evidentiary hearing. Upon conclusion of the hearing, the ALJ will normally render a decision. The ALJ can either affirm, modify or reverse the FAA's Order The judge cannot increase the sanction set by the FAA, nor can he or she substitute a civil penalty for the certificate action. If the decision is adverse to the technician or the FAA, either party may appeal the decision to the five member NTSB. As with the first step appeal to the ALJ, the effectiveness of the FAA Order is deferred pending the full Board's decision. This stage of the appeal is usually handled through written briefs. Oral argument may be requested, but is rarely granted. If the full Board renders its decision against the technician, that decision may be appealed to the U.S. Court of Appeals, and thereafter, a petition for certiorari may be filed with the U.S. Supreme Court. Very few cases, however, are ever appealed to the U.S. Courts. Furthermore, an appeal to the U.S. Court of Appeals does not automatically continue the stay of the FAA's suspension or revocation Order. If the Board's decision goes against the FAA, that's the end of the case. The FAA does not have the right of appeal of the Board's decision to the U.S. courts. The Sky Is Falling: Drone Regulation Update 13

20 C. Recent Case Law. 1. FAA v. Skypan International, Inc., N.D. Ill. - Case: 1:13-cv (a) Skypan Press Release. SkyPan International is pleased to announce that it has reached agreement with the United States Federal Aviation Administration to settle the civil penalty action initiated by the FAA in 2015 related to its unmanned aircraft systems (UAS) operations in New York City and Chicago during While neither admitting, nor contesting the allegations that these commercial operations were contrary to FAA regulations, SkyPan wishes to resolve this matter without any further expense or delay of business. Accordingly, it has entered into three-year agreement with the FAA in which SkyPan will pay a civil fine over a period of three years and pay an additional civil fine in the event Skypan violates any aviation regulation during the next year and pay a civil fine in the event it violates the terms of the agreement. In exchange, the FAA makes no finding of violation. SkyPan s flights were conducted two years before the FAA s first rule for commercial UAS operations, commonly referred to as Part 107, went into effect in August 2016, and all but a few were conducted before the FAA began to issue exemptions to authorize commercial UAS operations in September 2014 under the Section 333 process. SkyPan has never had an accident, and SkyPan has never compromised citizens privacy or security. SkyPan obtained a section 333 Exemption in For 28 years, SkyPan has offered innovative aerial robotic systems that serve the needs of the construction and real estate industries while adhering to the highest standards of safety and efficiency in its operation of those systems. SkyPan continues to strive to maintain the utmost levels of safety, security, and privacy protection in its operations. To that end, is pleased to join with the FAA to promote compliance with safety regulations governing UAS operations. All pilots those operating both manned and unmanned aircraft have a fundamental responsibility to abide by FAA s regulations to assure a single set of operational allowances and restrictions that may protect the flying public, as well as people and property on the ground. SkyPan encourages all commercial UAS operators to carefully read Part 107, to understand its requirements and limitations, and to seek guidance from the FAA if they have any questions. Operators should register their unmanned aircraft and ensure that their pilots fulfill the appropriate training, testing, and currency requirements before conducting any commercial operations under Part 107. SkyPan believes this is an exciting time for the nascent UAS industry and those who stand to benefit from this technology. Part 107 is a flexible and forward-leaning regulatory framework that balances access, innovation, and safety. The rule allows for routine commercial UAS operations within certain limitations and allows operators to seek authority from the FAA for operations not permitted by the rule but may otherwise be permitted if the FAA finds that these operations may be conducted safely. Importantly, the rule will allow SkyPan and other operators to fly in controlled airspace if authorized by Air Traffic Control. 14 The Sky Is Falling: Drone Regulation Update

21 As the FAA considers additional regulations that will open the skies even further to entrepreneurial American UAS businesses, SkyPan urges the UAS industry to work collaboratively with the FAA to achieve our common goal of balancing commerce and innovation with safety. (b) FAA Press Release FAA and Skypan International, Inc., Reach Agreement on Unmanned Aircraft Enforcement Cases January 17, 2017 Contact: Laura Brown / Les Dorr Phone: or WASHINGTON The U.S. Department of Transportation s Federal Aviation Administration today announced a comprehensive settlement agreement with SkyPan International, Inc., of Chicago. The agreement resolves enforcement cases that alleged the company operated unmanned aircraft (UAS) in congested airspace over New York City and Chicago, and violated airspace regulations and aircraft operating rules. Under the terms of the agreement, SkyPan will pay a $200,000 civil penalty. The company also agrees to pay an additional $150,000 if it violates Federal Aviation Regulations in the next year, and $150,000 more if it fails to comply with the terms of the settlement agreement. SkyPan also agrees to work with the FAA to release three public service announcements in the next 12 months to support the FAA s public outreach campaigns that encourage drone operators to learn and comply with UAS regulations. The agreement settles enforcement cases involving a $1.9 million civil penalty that the FAA proposed against SkyPan International, Inc. of Chicago in October It is the largest civil penalty the agency has proposed against a UAS operator. According to the FAA, SkyPan flew the drones near airports without notifying authorities and it did so without getting the necessary airworthiness and registration paperwork. Not only that, the agency said, SkyPan didn t install basic safety gear like altimeters and transponders. The Sky Is Falling: Drone Regulation Update 15

22 FAA Enforcement Regulations 14 CFR Part 13 e-cfr data is current as of April 27, 2017 Title 14 Chapter I Subchapter B Part 13 Subpart C Browse Previous Browse Next Title 14: Aeronautics and Space PART 13 INVESTIGATIVE AND ENFORCEMENT PROCEDURES Subpart C Legal Enforcement Actions Contents Consent orders Civil penalties: General Civil penalties: Other than by administrative assessment Civil Penalties: Administrative assessment against a person other than an individual acting as a pilot, flight engineer, mechanic, or repairman. Administrative assessment against all persons for hazardous materials violations Seizure of aircraft Civil penalties: Administrative assessment against an individual acting as a pilot, flight engineer, mechanic, or repairman Certificate action Orders of compliance, cease and desist orders, orders of denial, and other orders Military personnel Criminal penalties Injunctions Final order of Hearing Officer in certificate of aircraft registration proceedings Civil penalties: Streamlined enforcement procedures for certain security violations. Back to Top Consent orders. (a) At any time before the issuance of an order under this subpart, the official who issued the notice and the person subject to the notice may agree to dispose of the case by the issuance of a consent order by the official. (b) A proposal for a consent order, submitted to the official who issued the notice, under this section must include (1) A proposed order; (2) An admission of all jurisdictional facts; (3) An express waiver of the right to further procedural steps and of all rights to judicial review; and (4) An incorporation by reference of the notice and an acknowledgment that the notice may be used to construe the terms of the order. 16 The Sky Is Falling: Drone Regulation Update

23 (c) If the issuance of a consent order has been agreed upon after the filing of a request for hearing in accordance with subpart D of this part, the proposal for a consent order shall include a request to be filed with the Hearing Officer withdrawing the request for a hearing and requesting that the case be dismissed. Back to Top Civil penalties: General. (a) Any person who violates any of the following statutory provisions, or any rule, regulation, or order issued thereunder, is subject to a civil penalty of not more than the amount specified in 49 U.S.C. chapter 463 for each violation: (1) Chapter 401 (except sections 40103(a) and (d), 40105, 40116, and 40117); (2) Chapter 441 (except section 44109); (3) Section 44502(b) or (c); (4) Chapter 447 (except sections and ); (5) Chapter 451; (6) Sections 46301(b), (for a violation of 49 U.S.C ), or 46318; (7) Section 47107(b); or (8) Sections through (b) Any person who knowingly commits an act in violation of 49 U.S.C. chapter 51 or a regulation prescribed or order issued under that chapter, is subject to a civil penalty under 49 U.S.C (c) The minimum and maximum amounts of civil penalties for violations of the statutory provisions specified in paragraphs (a) and (b) of this section, or rules, regulations, or orders issued thereunder, are periodically adjusted for inflation in accordance with the formula established in 28 U.S.C note and implemented in 14 CFR part 13, subpart H. [Amdt ; 69 FR 59495, Oct. 4, 2004; Amdt ; 70 FR 1813, Jan. 11, 2005; 71 FR 70464, Dec. 5, 2006] Back to Top Civil penalties: Other than by administrative assessment. (a) The FAA uses the procedures in this section when it seeks a civil penalty other than by the administrative assessment procedures in or (b) The authority of the Administrator, under 49 U.S.C. chapter 463, to seek a civil penalty for a violation cited in 13.14(a), and the ability to refer cases to the United States Attorney General, or the delegate of the Attorney General, for prosecution of civil penalty actions sought by the Administrator is delegated to the Chief Counsel; the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel. This delegation applies to cases involving: The Sky Is Falling: Drone Regulation Update 17

24 (1) An amount in controversy in excess of: (i) $50,000, if the violation was committed by any person before December 12, 2003; (ii) $400,000, if the violation was committed by a person other than an individual or small business concern on or after December 12, 2003; (iii) $50,000, if the violation was committed by an individual or small business concern on or after December 12, 2003; or (2) An in rem action, seizure of aircraft subject to lien, suit for injunctive relief, or for collection of an assessed civil penalty. (c) The Administrator may compromise any civil penalty proposed under this section, before referral to the United States Attorney General, or the delegate of the Attorney General, for prosecution. (1) The Administrator, through the Chief Counsel; the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; or the Technical Center Counsel sends a civil penalty letter to the person charged with a violation cited in 13.14(a). The civil penalty letter contains a statement of the charges, the applicable law, rule, regulation, or order, the amount of civil penalty that the Administrator will accept in full settlement of the action or an offer to compromise the civil penalty. (2) Not later than 30 days after receipt of the civil penalty letter, the person charged with a violation may present any material or information in answer to the charges to the agency attorney, either orally or in writing, that may explain, mitigate, or deny the violation or that may show extenuating circumstances. The Administrator will consider any material or information submitted in accordance with this paragraph to determine whether the person is subject to a civil penalty or to determine the amount for which the Administrator will compromise the action. (3) If the person charged with the violation offers to compromise for a specific amount, that person must send to the agency attorney a certified check or money order for that amount, payable to the Federal Aviation Administration. The Chief Counsel; the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; Aeronautical Center Counsel; or the Technical Center Counsel may accept the certified check or money order or may refuse and return the certified check or money order. (4) If the offer to compromise is accepted by the Administrator, the agency attorney will send a letter to the person charged with the violation stating that the certified check or money order is accepted in full settlement of the civil penalty action. (5) If the parties cannot agree to compromise the civil penalty action or the offer to compromise is rejected and the certified check or money order submitted in compromise is returned, the Administrator may refer the civil penalty action to the United States Attorney General, or the delegate of the Attorney General, to begin proceedings in a United States district court, pursuant to the authority in 49 U.S.C , to prosecute and collect the civil penalty. [Amdt , 53 FR 34653, Sept. 7, 1988, as amended by Amdt , 55 FR 15128, Apr. 20, 1990; Amdt , 62 FR 46865, Sept. 4, 1997; Amdt ; 69 FR 59495, Oct. 4, 2004] Back to Top 18 The Sky Is Falling: Drone Regulation Update

25 13.16 Civil Penalties: Administrative assessment against a person other than an individual acting as a pilot, flight engineer, mechanic, or repairman. Administrative assessment against all persons for hazardous materials violations. (a) The FAA uses these procedures when it assesses a civil penalty against a person other than an individual acting as a pilot, flight engineer, mechanic, or repairman for a violation cited in the first sentence of 49 U.S.C (d)(2) or in 49 U.S.C , or any implementing rule, regulation or order. (b) District court jurisdiction. Notwithstanding the provisions of paragraph (a) of this section, the United States district courts have exclusive jurisdiction of any civil penalty action initiated by the FAA for violations described in those paragraphs, under 49 U.S.C (d)(4), if (1) The amount in controversy is more than $50,000 for a violation committed by any person before December 12, 2003; (2) The amount in controversy is more than $400,000 for a violation committed by a person other than an individual or small business concern on or after December 12, 2003; (3) The amount in controversy is more than $50,000 for a violation committed by an individual or a small business concern on or after December 12, 2003; (4) The action is in rem or another action in rem based on the same violation has been brought; (5) The action involves an aircraft subject to a lien that has been seized by the Government; or (6) Another action has been brought for an injunction based on the same violation. (c) Hazardous materials violations. The FAA may assess a civil penalty against any person who knowingly commits an act in violation of 49 U.S.C. chapter 51 or a regulation prescribed or order issued under that chapter, under 49 U.S.C and 49 CFR 1.47(k). An order assessing a civil penalty for a violation under 49 U.S.C. chapter 51, or a rule, regulation, or order issued thereunder, is issued only after the following factors have been considered: (1) The nature, circumstances, extent, and gravity of the violation; (2) With respect to the violator, the degree of culpability, any history of prior violations, the ability to pay, and any effect on the ability to continue to do business; and (3) Such other matters as justice may require. (d) Order assessing civil penalty. An order assessing civil penalty may be issued for a violation described in paragraphs (a) or (c) of this section, or as otherwise provided by statute, after notice and opportunity for a hearing. A person charged with a violation may be subject to an order assessing civil penalty in the following circumstances: (1) An order assessing civil penalty may be issued if a person charged with a violation submits or agrees to submit a civil penalty for a violation. (2) An order assessing civil penalty may be issued if a person charged with a violation does not request a hearing under paragraph (g)(2)(ii) of this section within 15 days after receipt of a final notice of proposed civil penalty. The Sky Is Falling: Drone Regulation Update 19

26 (3) Unless an appeal is filed with the FAA decisionmaker in a timely manner, an initial decision or order of an administrative law judge shall be considered an order assessing civil penalty if an administrative law judge finds that an alleged violation occurred and determines that a civil penalty, in an amount found appropriate by the administrative law judge, is warranted. (4) Unless a petition for review is filed with a U.S. Court of Appeals in a timely manner, a final decision and order of the Administrator shall be considered an order assessing civil penalty if the FAA decisionmaker finds that an alleged violation occurred and a civil penalty is warranted. (e) Delegation of authority. (1) The authority of the Administrator under 49 U.S.C (d), 47531, and 5123, and 49 CFR 1.47(k) to initiate and assess civil penalties for a violation of those statutes or a rule, regulation, or order issued thereunder, is delegated to the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel. (2) The authority of the Administrator under 49 U.S.C. 5123, 49 CFR 1.47(k), 49 U.S.C (d), and 49 U.S.C to refer cases to the Attorney General of the United States, or the delegate of the Attorney General, for collection of civil penalties is delegated to the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel. (3) The authority of the Administrator under 49 U.S.C (f) to compromise the amount of a civil penalty imposed is delegated to the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel. (4) The authority of the Administrator under 49 U.S.C (e) and (f) and 49 CFR 1.47(k) to compromise the amount of a civil penalty imposed is delegated to the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel. (f) Notice of proposed civil penalty. A civil penalty action is initiated by sending a notice of proposed civil penalty to the person charged with a violation or to the agent for services for the person under 49 U.S.C A notice of proposed civil penalty will be sent to the individual charged with a violation or to the president of the corporation or company charged with a violation. In response to a notice of proposed civil penalty, a corporation or company may designate in writing another person to receive documents in that civil penalty action. The notice of proposed civil penalty contains a statement of the charges and the amount of the proposed civil penalty. Not later than 30 days after receipt of the notice of proposed civil penalty, the person charged with a violation shall (1) Submit the amount of the proposed civil penalty or an agreed-upon amount, in which case either an order assessing civil penalty or compromise order shall be issued in that amount; (2) Submit to the agency attorney one of the following: (i) Written information, including documents and witness statements, demonstrating that a violation of the regulations did not occur or that a penalty or the amount of the penalty is not warranted by the circumstances. (ii) A written request to reduce the proposed civil penalty, the amount of reduction, and the reasons and any documents supporting a reduction of the proposed civil penalty, including records indicating a financial inability to pay or records showing that payment of the proposed civil penalty would prevent the person from continuing in business. 20 The Sky Is Falling: Drone Regulation Update

27 (iii) A written request for an informal conference to discuss the matter with the agency attorney and to submit relevant information or documents; or (3) Request a hearing, in which case a complaint shall be filed with the hearing docket clerk. (g) Final notice of proposed civil penalty. A final notice of proposed civil penalty may be issued after participation in informal procedures provided in paragraph (f)(2) of this section or failure to respond in a timely manner to a notice of proposed civil penalty. A final notice of proposed civil penalty will be sent to the individual charged with a violation, to the president of the corporation or company charged with a violation, or a person previously designated in writing by the individual, corporation, or company to receive documents in that civil penalty action. If not previously done in response to a notice of proposed civil penalty, a corporation or company may designate in writing another person to receive documents in that civil penalty action. The final notice of proposed civil penalty contains a statement of the charges and the amount of the proposed civil penalty and, as a result of information submitted to the agency attorney during informal procedures, may modify an allegation or a proposed civil penalty contained in a notice of proposed civil penalty. (1) A final notice of proposed civil penalty may be issued (i) If the person charged with a violation fails to respond to the notice of proposed civil penalty within 30 days after receipt of that notice; or (ii) If the parties participated in any informal procedures under paragraph (f)(2) of this section and the parties have not agreed to compromise the action or the agency attorney has not agreed to withdraw the notice of proposed civil penalty. (2) Not later than 15 days after receipt of the final notice of proposed civil penalty, the person charged with a violation shall do one of the following (i) Submit the amount of the proposed civil penalty or an agreed-upon amount, in which case either an order assessing civil penalty or a compromise order shall be issued in that amount; or (ii) Request a hearing, in which case a complaint shall be filed with the hearing docket clerk. (h) Request for a hearing. Any person charged with a violation may request a hearing, pursuant to paragraph (f)(3) or paragraph (g)(2)(ii) of this section, to be conducted in accordance with the procedures in subpart G of this part. A person requesting a hearing shall file a written request for a hearing with the hearing docket clerk, using the appropriate address set forth in (a) of this part, and shall mail a copy of the request to the agency attorney. The request for a hearing may be in the form of a letter but must be dated and signed by the person requesting a hearing. The request for a hearing may be typewritten or may be legibly handwritten. (i) Hearing. If the person charged with a violation requests a hearing pursuant to paragraph (f)(3) or paragraph (g)(2)(ii) of this section, the original complaint shall be filed with the hearing docket clerk and a copy shall be sent to the person requesting the hearing. The procedural rules in subpart G of this part apply to the hearing and any appeal. At the close of the hearing, the administrative law judge shall issue, either orally on the record or in writing, an initial decision, including the reasons for the decision, that contains findings or conclusions on the allegations contained, and the civil penalty sought, in the complaint. (j) Appeal. Either party may appeal the administrative law judge's initial decision to the FAA decisionmaker pursuant to the procedures in subpart G of this part. If a party files a notice of appeal pursuant to of subpart G, the effectiveness of the initial decision is stayed until a final decision and order of the Administrator have been entered on the record. The FAA decisionmaker shall review the The Sky Is Falling: Drone Regulation Update 21

28 record and issue a final decision and order of the Administrator that affirm, modify, or reverse the initial decision. The FAA decisionmaker may assess a civil penalty but shall not assess a civil penalty in an amount greater than that sought in the complaint. (k) Payment. A person shall pay a civil penalty by sending a certified check or money order, payable to the Federal Aviation Administration, to the agency attorney. (l) Collection of civil penalties. If an individual does not pay a civil penalty imposed by an order assessing civil penalty or other final order, the Administrator may take action provided under the law to collect the penalty. (m) A party may seek review only of a final decision and order of the FAA decisionmaker involving a violation of the Federal aviation statute or the Federal hazardous materials transportation law. Judicial review is in the United States Court of Appeals for the District of Columbia Circuit or the United States court of appeals for the circuit in which the party resides or has the party's principal place of business as provided in of this part. Neither an initial decision or an order issued by an administrative law judge that has not been appealed to the FAA decisionmaker, nor an order compromising a civil penalty action, may be appealed under any of those sections. (n) Compromise. The FAA may compromise the amount of any civil penalty imposed under this section, under 49 U.S.C. 5123(e), 46031(f), 46303(b), or at any time before referring the action to the United States Attorney General, or the delegate of the Attorney General, for collection. (1) An agency attorney may compromise any civil penalty action where a person charged with a violation agrees to pay a civil penalty and the FAA agrees not to make a finding of violation. Under such agreement, a compromise order is issued following the payment of the agreed-on amount or the signing of a promissory note. The compromise order states the following: (i) The person has paid a civil penalty or has signed a promissory note providing for installment payments. (ii) The FAA makes no finding of a violation. (iii) The compromise order shall not be used as evidence of a prior violation in any subsequent civil penalty proceeding or certificate action proceeding. (2) An agency attorney may compromise the amount of a civil penalty proposed in a notice, assessed in an order, or imposed in a compromise order. [Amdt ; 70 FR 1813, Jan. 11, 2005; 70 FR 2925, Jan. 18, 2005, as amended at 70 FR 8238, Feb. 18, 2005; 71 FR 70464, Dec. 5, 2006] Back to Top Seizure of aircraft. (a) Under section 903 of the Federal Aviation Act of 1958 (49 U.S.C. 1473), a State or Federal law enforcement officer, or a Federal Aviation Administration safety inspector, authorized in an order of seizure issued by the Regional Administrator of the region, or by the Chief Counsel, may summarily seize an aircraft that is involved in a violation for which a civil penalty may be imposed on its owner or operator. (b) Each person seizing an aircraft under this section shall place it in the nearest available and adequate public storage facility in the judicial district in which it was seized. 22 The Sky Is Falling: Drone Regulation Update

29 (c) The Regional Administrator or Chief Counsel, without delay, sends a written notice and a copy of this section, to the registered owner of the seized aircraft, and to each other persons shown by FAA records to have an interest in it, stating the (1) Time, date, and place of seizure; (2) Name and address of the custodian of the aircraft; (3) Reasons for the seizure, including the violations believed, or judicially determined, to have been committed; and (4) Amount that may be tendered as (i) A compromise of a civil penalty for the alleged violation; or (ii) Payment for a civil penalty imposed by a Federal court for a proven violation. (d) The Chief Counsel, or the Regional Counsel or Assistant Chief Counsel for the region or area in which an aircraft is seized under this section, immediately sends a report to the United States District Attorney for the judicial district in which it was seized, requesting the District Attorney to institute proceedings to enforce a lien against the aircraft. (e) The Regional Administrator or Chief Counsel directs the release of a seized aircraft whenever (1) The alleged violator pays a civil penalty or an amount agreed upon in compromise, and the costs of seizing, storing, and maintaining the aircraft; (2) The aircraft is seized under an order of a Federal Court in proceedings in rem to enforce a lien against the aircraft, or the United States District Attorney for the judicial district concerned notifies the FAA that the District Attorney refuses to institute those proceedings; or (3) A bond in the amount and with the sureties prescribed by the Chief Counsel, the Regional Counsel, or the Assistant Chief Counsel is deposited, conditioned on payment of the penalty, or the compromise amount, and the costs of seizing, storing, and maintaining the aircraft. [Doc. No , 44 FR 63723, Nov. 5, 1979, as amended by Amdt , 54 FR 39290, Sept. 25, 1989; Amdt , 62 FR 46865, Sept. 4, 1997] Back to Top Civil penalties: Administrative assessment against an individual acting as a pilot, flight engineer, mechanic, or repairman. (a) General. (1) This section applies to each action in which the FAA seeks to assess a civil penalty by administrative procedures against an individual acting as a pilot, flight engineer, mechanic, or repairman, under 49 U.S.C (d)(5), for a violation listed in 49 U.S.C (d)(2). This section does not apply to a civil penalty assessed for violation of 49 U.S.C. chapter 51, or a rule, regulation, or order issued thereunder. (2) District court jurisdiction. Notwithstanding the provisions of paragraph (a)(1) of this section, the United States district courts have exclusive jurisdiction of any civil penalty action involving an individual acting as a pilot, flight engineer, mechanic, or repairman for violations described in that paragraph, under 49 U.S.C (d)(4), if: The Sky Is Falling: Drone Regulation Update 23

30 (i) The amount in controversy is more than $50,000. (ii) The action involves an aircraft subject to a lien that has been seized by the Government; or (iii) Another action has been brought for an injunction based on the same violation. (b) Definitions. As used in this part, the following definitions apply: (1) Flight engineer means an individual who holds a flight engineer certificate issued under part 63 of this chapter. (2) Individual acting as a pilot, flight engineer, mechanic, or repairman means an individual acting in such capacity, whether or not that individual holds the respective airman certificate issued by the FAA. (3) Mechanic means an individual who holds a mechanic certificate issued under part 65 of this chapter. (4) Pilot means an individual who holds a pilot certificate issued under part 61 of this chapter. (5) Repairman means an individual who holds a repairman certificate issued under part 65 of this chapter. (c) Delegation of authority. (1) The authority of the Administrator under 49 U.S.C (d)(5), to initiate and assess civil penalties is delegated to the Chief Counsel; the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel. (2) The authority of the Administrator to refer cases to the Attorney General of the United States, or the delegate of the Attorney General, for collection of civil penalties is delegated to the Chief Counsel; the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel. (3) The authority of the Administrator to compromise the amount of a civil penalty under 49 U.S.C (f) is delegated to the Chief Counsel; the Deputy Chief Counsel for Operations; the Assistant Chief Counsel for Enforcement; Assistant Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional Counsel; the Aeronautical Center Counsel; and the Technical Center Counsel. (d) Notice of proposed assessment. A civil penalty action is initiated by sending a notice of proposed assessment to the individual charged with a violation specified in paragraph (a) of this section. The notice of proposed assessment contains a statement of the charges and the amount of the proposed civil penalty. The individual charged with a violation may do the following: (1) Submit the amount of the proposed civil penalty or an agreed-on amount, in which case either an order of assessment or a compromise order will be issued in that amount. (2) Answer the charges in writing. (3) Submit a written request for an informal conference to discuss the matter with an agency attorney and submit relevant information or documents. 24 The Sky Is Falling: Drone Regulation Update

31 (4) Request that an order be issued in accordance with the notice of proposed assessment so that the individual charged may appeal to the National Transportation Safety Board. (e) Failure to respond to notice of proposed assessment. An order of assessment may be issued if the individual charged with a violation fails to respond to the notice of proposed assessment within 15 days after receipt of that notice. (f) Order of assessment. An order of assessment, which assesses a civil penalty, may be issued for a violation described in paragraph (a) of this section after notice and an opportunity to answer any charges and be heard as to why such order should not be issued. (g) Appeal. Any individual who receives an order of assessment issued under this section may appeal the order to the National Transportation Safety Board. The appeal stays the effectiveness of the Administrator's order. (h) Exhaustion of administrative remedies. An individual substantially affected by an order of the NTSB or the Administrator may petition for review only of a final decision and order of the National Transportation Safety Board to a court of appeals of the United States for the circuit in which the individual charged resides or has his or her principal place of business or the United States Court of Appeals for the District of Columbia Circuit, under 49 U.S.C and 46301(d)(6). Neither an order of assessment that has not been appealed to the National Transportation Board, nor an order compromising a civil penalty action, may be appealed under those sections. (i) Compromise. The FAA may compromise any civil penalty action initiated under this section, in accordance with 49 U.S.C (f). (1) An agency attorney may compromise any civil penalty action where an individual charged with a violation agrees to pay a civil penalty and the FAA agrees to make no finding of violation. Under such agreement, a compromise order is issued following the payment of the agreed-on amount or the signing of a promissory note. The compromise order states the following: (i) The individual has paid a civil penalty or has signed a promissory note providing for installment payments; (ii) The FAA makes no finding of violation; and (iii) The compromise order will not be used as evidence of a prior violation in any subsequent civil penalty proceeding or certificate action proceeding. (2) An agency attorney may compromise the amount of any civil penalty proposed or assessed in an order. (j) Payment. (1) An individual must pay a civil penalty by: (i) Sending a certified check or money order, payable to the Federal Aviation Administration, to the FAA office identified in the order of assessment, or (ii) Making an electronic funds transfer according to the directions specified in the order of assessment. (2) The civil penalty must be paid within 30 days after service of the order of assessment, unless an appeal is filed with the National Transportation Safety Board. The civil penalty must be paid within 30 days after a final order of the Board or the Court of Appeals affirms the order of assessment in whole or in part. The Sky Is Falling: Drone Regulation Update 25

32 (k) Collection of civil penalties. If an individual does not pay a civil penalty imposed by an order of assessment or other final order, the Administrator may take action provided under the law to collect the penalty. [Amdt ; 69 FR 59497, Oct. 4, 2004] Back to Top Certificate action. (a) Under section 609 of the Federal Aviation Act of 1958 (49 U.S.C. 1429), the Administrator may reinspect any civil aircraft, aircraft engine, propeller, appliance, air navigation facility, or air agency, and may re-examine any civil airman. Under section 501(e) of the FA Act, any Certificate of Aircraft Registration may be suspended or revoked by the Administrator for any cause that renders the aircraft ineligible for registration. (b) If, as a result of such a reinspection re-examination, or other investigation made by the Administrator under section 609 of the FA Act, the Administrator determines that the public interest and safety in air commerce requires it, the Administrator may issue an order amending, suspending, or revoking, all or part of any type certificate, production certificate, airworthiness certificate, airman certificate, air carrier operating certificate, air navigation facility certificate, or air agency certificate. This authority may be exercised for remedial purposes in cases involving the Hazardous Materials Transportation Act (49 U.S.C et seq.) or regulations issued under that Act. This authority is also exercised by the Chief Counsel, the Assistant Chief Counsel, Enforcement, the Assistant Chief Counsel, Regulations, the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office, each Regional Counsel, and the Aeronautical Center Counsel. If the Administrator finds that any aircraft registered under Part 47 of this chapter is ineligible for registration, the Administrator issues an order suspending or revoking that certificate. This authority as to aircraft found ineligible for registration is also exercised by each Regional Counsel, the Aeronautical Center Counsel, and the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office. (c) Before issuing an order under paragraph (b) of this section, the Chief Counsel, the Assistant Chief Counsel, Enforcement, the Assistant Chief Counsel, Regulations, the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office, each Regional Counsel, or the Aeronautical Center Counsel advises the certificate holder of the charges or other reasons upon which the Administrator bases the proposed action and, except in an emergency, allows the holder to answer any charges and to be heard as to why the certificate should not be amended, suspended, or revoked. The holder may, by checking the appropriate box on the form that is sent to the holder with the notice of proposed certificate action, elect to (1) Admit the charges and surrender his or her certificate; (2) Answer the charges in writing; (3) Request that an order be issued in accordance with the notice of proposed certificate action so that the certificate holder may appeal to the National Transportation Safety Board, if the charges concerning a matter under Title VI of the FA Act; (4) Request an opportunity to be heard in an informal conference with the FAA counsel; or (5) Request a hearing in accordance with Subpart D of this part if the charges concern a matter under Title V of the FA Act. 26 The Sky Is Falling: Drone Regulation Update

33 Except as provided in 13.35(b), unless the certificate holder returns the form and, where required, an answer or motion, with a postmark of not later than 15 days after the date of receipt of the notice, the order of the Administrator is issued as proposed. If the certificate holder has requested an informal conference with the FAA counsel and the charges concern a matter under Title V of the FA Act, the holder may after that conference also request a formal hearing in writing with a postmark of not later than 10 days after the close of the conference. After considering any information submitted by the certificate holder, the Chief Counsel, the Assistant Chief Counsel for Regulations and Enforcement, the Regional Counsel concerned, or the Aeronautical Center Counsel (as to matters under Title V of the FA Act) issues the order of the Administrator, except that if the holder has made a valid request for a formal hearing on a matter under Title V of the FA Act initially or after an informal conference, Subpart D of this part governs further proceedings. (d) Any person whose certificate is affected by an order issued under this section may appeal to the National Transportation Safety Board. If the certificate holder files an appeal with the Board, the Administrator's order is stayed unless the Administrator advises the Board that an emergency exists and safety in air commerce requires that the order become effective immediately. If the Board is so advised, the order remains effective and the Board shall finally dispose of the appeal within 60 days after the date of the advice. This paragraph does not apply to any person whose Certificate of Aircraft Registration is affected by an order issued under this section. [Doc. No , 44 FR 63723, Nov. 5, 1979, as amended by Amdt , 45 FR 20773, Mar. 31, 1980; Amdt , 54 FR 39290, Sept. 25, 1989; Amdt , 62 FR 46865, Sept. 4, 1997; 75 FR 41979, July 20, 2010] Back to Top Orders of compliance, cease and desist orders, orders of denial, and other orders. (a) This section applies to orders of compliance, cease and desist orders, orders of denial, and other orders issued by the Administrator to carry out the provisions of the Federal Aviation Act of 1958, as amended, the Hazardous Materials Transportation Act, the Airport and Airway Development Act of 1970, and the Airport and Airway Improvement Act of 1982, or the Airport and Airway Improvement Act of 1982 as amended by the Airport and Airway Safety and Capacity Expansion Act of This section does not apply to orders issued pursuant to section 602 or section 609 of the Federal Aviation Act of 1958, as amended. (b) Unless the Administrator determines that an emergency exists and safety in air commerce requires the immediate issuance of an order under this section, the person subject to the order shall be provided with notice prior to issuance. (c) Within 30 days after service of the notice, the person subject to the order may (1) Request an opportunity to be heard in an informal conference with an FAA attorney; (2) Reply in writing; or (3) Request a hearing in accordance with subpart D of this part. (d) If an informal conference is held or a reply is filed, as to any charges not withdrawn or not subject to a consent order, the person subject to the order may, within 10 days after receipt of notice that the remaining charges are not withdrawn, request a hearing in accordance with subpart D of this part. (e) Failure to request a hearing within the period provided in paragraphs (c) or (d) of this section (1) Constitutes a waiver of the right to appeal and the right to a hearing, and The Sky Is Falling: Drone Regulation Update 27

34 (2) Authorizes the official who issued the notice to find the facts to be as alleged in the notice, or as modified as the official may determine necessary based on any written response, and to issue an appropriate order, without further notice or proceedings. (f) If a hearing is requested in accordance with paragraph (c) or (d) of this section, the procedure of Subpart D of this part applies. At the close of the hearing, the Hearing Officer, on the record or subsequently in writing, shall set forth findings and conclusions and the reasons therefor, and either (1) Dismiss the notice; or (2) Issue an order. (g) Any party to the hearing may appeal from the order of the Hearing Officer by filing a notice of appeal with the Administrator within 20 days after the date of issuance of the order. (h) If a notice of appeal is not filed from the order issued by a Hearing Officer, such order is the final agency order. (i) Any person filing an appeal authorized by paragraph (g) of this section shall file an appeal brief with the Administrator within 40 days after the date of issuance of the order, and serve a copy on the other party. A reply brief must be filed within 20 days after service of the appeal brief and a copy served on the appellant. (j) On appeal the Administrator reviews the available record of the proceeding, and issues an order dismissing, reversing, modifying or affirming the order. The Administrator's order includes the reasons for the Administrator's action. (k) For good cause shown, requests for extensions of time to file any document under this section may be granted by (1) The official who issued the order, if the request is filed prior to the designation of a Hearing Officer; or (2) The Hearing Officer, if the request is filed prior to the filing of a notice of appeal; or (3) The Administrator, if the request is filed after the filing of a notice of appeal. (l) Except in the case of an appeal from the decision of a Hearing Officer, the authority of the Administrator under this section is also exercised by the Chief Counsel, Deputy Chief Counsel, each Assistant Chief Counsel, each Regional Counsel, and the Aeronautical Center Counsel (as to matters under Title V of the Federal Aviation Act of 1958). (m) Filing and service of documents under this section shall be accomplished in accordance with 13.43; and the periods of time specified in this section shall be computed in accordance with [Doc. No , 44 FR 63723, Nov. 5, 1979, as amended by Amdt , 53 FR 33783, Aug. 31, 1988; Amdt , 54 FR 39290, Sept. 25, 1989; Amdt , 62 FR 46865, Sept. 4, 1997; Amdt , 79 FR 46967, Aug. 12, 2014] Back to Top Military personnel. 28 The Sky Is Falling: Drone Regulation Update

35 If a report made under this part indicates that, while performing official duties, a member of the Armed Forces, or a civilian employee of the Department of Defense who is subject to the Uniform Code of Military Justice (10 U.S.C. Ch. 47), has violated the Federal Aviation Act of 1958, or a regulation or order issued under it, the Chief Counsel, the Assistant Chief Counsel, Enforcement, the Assistant Chief Counsel, Regulations, the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office, each Regional Counsel, and the Aeronautical Center Counsel send a copy of the report to the appropriate military authority for such disciplinary action as that authority considers appropriate and a report to the Administrator thereon. [Doc. No , 44 FR 63723, Nov. 5, 1979, as amended by Amdt , 54 FR 39290, Sept. 25, 1989; Amdt , 62 FR 46866, Sept. 4, 1997] Back to Top Criminal penalties. (a) Sections 902 and 1203 of the Federal Aviation Act of 1958 (49 U.S.C and 1523), provide criminal penalties for any person who knowingly and willfully violates specified provisions of that Act, or any regulation or order issued under those provisions. Section 110(b) of the Hazardous Materials Transportation Act (49 U.S.C. 1809(b)) provides for a criminal penalty of a fine of not more than $25,000, imprisonment for not more than five years, or both, for any person who willfully violates a provision of that Act or a regulation or order issued under it. (b) If an inspector or other employee of the FAA becomes aware of a possible violation of any criminal provision of the Federal Aviation Act of 1958 (except a violation of section 902 (i) through (m) which is reported directly to the Federal Bureau of Investigation), or of the Hazardous Materials Transportation Act, relating to the transportation or shipment by air of hazardous materials, he or she shall report it to the Office of the Chief Counsel or the Regional Counsel or Assistant Chief Counsel for the region or area concerned. If appropriate, that office refers the report to the Department of Justice for criminal prosecution of the offender. If such an inspector or other employee becomes aware of a possible violation of a Federal statute that is within the investigatory jurisdiction of another Federal agency, he or she shall immediately report it to that agency according to standard FAA practices. [Doc. No , 44 FR 63723, Nov. 5, 1979, as amended by Amdt , 54 FR 39290, Sept. 25, 1989; Amdt , 62 FR 46866, Sept. 4, 1997] Back to Top Injunctions. (a) Whenever it is determined that a person has engaged, or is about to engage, in any act or practice constituting a violation of the Federal Aviation Act of 1958, or any regulation or order issued under it for which the FAA exercises enforcement responsibility, or, with respect to the transportation or shipment by air of any hazardous materials, in any act or practice constituting a violation of the Hazardous Materials Transportation Act, or any regulation or order issued under it for which the FAA exercises enforcement responsibility, the Chief Counsel, the Assistant Chief Counsel, Enforcement, the Assistant Chief Counsel, Regulations, the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office, each Regional Counsel, and the Aeronautical Center Counsel may request the United States Attorney General, or the delegate of the Attorney General, to bring an action in the appropriate United States District Court for such relief as is necessary or appropriate, including mandatory or prohibitive injunctive relief, interim equitable relief, and punitive damages, as provided by section 1007 of the Federal Aviation Act of 1958 (49 U.S.C. 1487) and section 111(a) of the Hazardous Materials Transportation Act (49 U.S.C. 1810). The Sky Is Falling: Drone Regulation Update 29

36 (b) Whenever it is determined that there is substantial likelihood that death, serious illness, or severe personal injury, will result from the transportation by air of a particular hazardous material before an order of compliance proceeding, or other administrative hearing or formal proceeding to abate the risk of the harm can be completed, the Chief Counsel, the Assistant Chief Counsel, Enforcement, the Assistant Chief Counsel, Regulations, the Assistant Chief Counsel, Europe, Africa, and Middle East Area Office, each Regional Counsel, and the Aeronautical Center Counsel may bring, or request the United States Attorney General to bring, an action in the appropriate United States District Court for an order suspending or restricting the transportation by air of the hazardous material or for such other order as is necessary to eliminate or ameliorate the imminent hazard, as provided by section 111(b) of the Hazardous Materials Transportation Act (49 U.S.C. 1810). [Doc. No , 44 FR 63723, Nov. 5, 1979, as amended by Amdt , 54 FR 39290, Sept. 25, 1989; Amdt , 62 FR 46866, Sept. 4, 1997] Back to Top Final order of Hearing Officer in certificate of aircraft registration proceedings. (a) If, in proceedings under section 501(b) of the Federal Aviation Act of 1958 (49 U.S.C. 1401), the Hearing Officer determines that the aircraft is ineligible for a Certificate of Aircraft Registration, the Hearing Officer shall suspend or revoke the respondent's certificate, as proposed in the notice of proposed certificate action. (b) If the final order of the Hearing Officer makes a decision on the merits, it shall contain a statement of the findings and conclusions of law on all material issues of fact and law. If the Hearing Officer finds that the allegations of the notice have been proven, but that no sanction is required, the Hearing Officer shall make appropriate findings and issue an order terminating the notice. If the Hearing Officer finds that the allegations of the notice have not been proven, the Hearing Officer shall issue an order dismissing the notice. If the Hearing Officer finds it to be equitable and in the public interest, the Hearing Officer shall issue an order terminating the proceeding upon payment by the respondent of a civil penalty in an amount agreed upon by the parties. (c) If the order is issued in writing, it shall be served upon the parties. [Doc. No , 44 FR 63723, Nov. 5, 1979, as amended by Amdt , 45 FR 20773, Mar. 31, 1980; Amdt , 75 FR 41979, July 20, 2010] Back to Top Civil penalties: Streamlined enforcement procedures for certain security violations. This section may be used, at the agency's discretion, in enforcement actions involving individuals presenting dangerous or deadly weapons for screening at airports or in checked baggage where the amount of the proposed civil penalty is less than $5,000. In these cases, sections 13.16(a), 13.16(c), and (f) through (l) of this chapter are used, as well as paragraphs (a) through (d) of this section: (a) Delegation of authority. The authority of the Administrator, under 49 U.S.C , to initiate the assessment of civil penalties for a violation of 49 U.S.C. Subtitle VII, or a rule, regulation, or order issued thereunder, is delegated to the regional Civil Aviation Security Division Manager and the regional Civil Aviation Security Deputy Division Manager for the purpose of issuing notices of violation in cases involving violations of 49 U.S.C. Subtitle VII and the FAA's regulations by individuals presenting dangerous or deadly weapons for screening at airport checkpoints or in checked baggage. This authority may not be delegated below the level of the regional Civil Aviation Security Deputy Division Manager. 30 The Sky Is Falling: Drone Regulation Update

37 (b) Notice of violation. A civil penalty action is initiated by sending a notice of violation to the person charged with the violation. The notice of violation contains a statement of the charges and the amount of the proposed civil penalty. Not later than 30 days after receipt of the notice of violation, the person charged with a violation shall: (1) Submit the amount of the proposed civil penalty or an agreed-upon amount, in which case either an order assessing a civil penalty or a compromise order shall be issued in that amount; or (2) Submit to the agency attorney identified in the material accompanying the notice any of the following: (i) Written information, including documents and witness statements, demonstrating that a violation of the regulations did not occur or that a penalty or the penalty amount is not warranted by the circumstances; or (ii) A written request to reduce the proposed civil penalty, the amount of reduction, and the reasons and any documents supporting a reduction of the proposed civil penalty, including records indicating a financial inability to pay or records showing that payment of the proposed civil penalty would prevent the person from continuing in business; or (iii) A written request for an informal conference to discuss the matter with an agency attorney and submit relevant information or documents; or (3) Request a hearing in which case a complaint shall be filed with the hearing docket clerk. (c) Final notice of violation and civil penalty assessment order. A final notice of violation and civil penalty assessment order ( final notice and order ) may be issued after participation in any informal proceedings as provided in paragraph (b)(2) of this section, or after failure of the respondent to respond in a timely manner to a notice of violation. A final notice and order will be sent to the individual charged with a violation. The final notice and order will contain a statement of the charges and the amount of the proposed civil penalty and, as a result of information submitted to the agency attorney during any informal procedures, may reflect a modified allegation or proposed civil penalty. A final notice and order may be issued (1) If the person charged with a violation fails to respond to the notice of violation within 30 days after receipt of that notice; or (2) If the parties participated in any informal procedures under paragraph (b)(2) of this section and the parties have not agreed to compromise the action or the agency attorney has not agreed to withdraw the notice of violation. (d) Order assessing civil penalty. An order assessing civil penalty may be issued after notice and opportunity for a hearing. A person charged with a violation may be subject to an order assessing civil penalty in the following circumstances: (1) An order assessing civil penalty may be issued if a person charged with a violation submits, or agrees to submit, the amount of civil penalty proposed in the notice of violation. (2) An order assessing civil penalty may be issued if a person charged with a violation submits, or agrees to submit, an agreed-upon amount of civil penalty that is not reflected in either the notice of violation or the final notice and order. The Sky Is Falling: Drone Regulation Update 31

38 (3) The final notice and order becomes (and contains a statement so indicating) an order assessing a civil penalty when the person charged with a violation submits the amount of the proposed civil penalty that is reflected in the final notice and order. (4) The final notice and order becomes (and contains a statement so indicating) an order assessing a civil penalty 16 days after receipt of the final notice and order, unless not later than 15 days after receipt of the final notice and order, the person charged with a violation does one of the following (i) Submits an agreed-upon amount of civil penalty that is not reflected in the final notice and order, in which case an order assessing civil penalty or a compromise order shall be issued in that amount; or (ii) Requests a hearing in which case a complaint shall be filed with the hearing docket clerk. (5) Unless an appeal is filed with the FAA decisionmaker in a timely manner, an initial decision or order of an administrative law judge shall be considered an order assessing civil penalty if an administrative law judge finds that an alleged violation occurred and determines that a civil penalty, in an amount found to be appropriate by the administrative law judge, is warranted. (6) Unless a petition for review is filed with a U.S. Court of Appeals in a timely manner, a final decision and order of the Administrator shall be considered an order assessing civil penalty if the FAA decisionmaker finds that an alleged violation occurred and a civil penalty is warranted. [Doc. No , 61 FR 44155, Aug. 28, 1996] See: Pilots for a listing of recent enforcement letters and actions initiated by the FAA. See: for FAA s October 3, 2016 Order JO This order combines new guidance for implementing 14 CFR, Part 101, Subpart E, Special Rule for Model Aircraft, and 14 CFR, Part 107 Small Unmanned Aircraft Systems (suas) with existing UAS guidance in J NO Unmanned Aircraft Operations in the National Airspace System (cancelled) and General Notice (GENOT) JO , Model Aircraft Operations in the Vicinity of Airports (cancelled). This provides a single source document for Air Traffic Organization (ATO) personnel, in any class of airspace. Doctrine of Laches- Stale Complaint Rule 32 The Sky Is Falling: Drone Regulation Update

39 Page F.3d 1239 (D.C. Cir. 2011) Michael George MANIN, Petitioner v. NATIONAL TRANSPORTATION SAFETY BOARD and Federal Aviation Administration, Respondents. No United States Court of Appeals, District of Columbia Circuit. January 14, 2011 Argued Oct. 8, Court generally may not uphold agency action on a basis other than that relied upon by the agency. Page 1240 On Petition for Review of an Order of the Department of Transportation. Kathleen A. Yodice argued the cause and filed the briefs for petitioner. Agnes M. Rodriguez, Senior Attorney, Federal Aviation Administration, argued the cause and filed the briefs for respondent. Before: SENTELLE, Chief Judge, WILLIAMS and RANDOLPH, Senior Circuit Judges. OPINION SENTELLE, Chief Judge: Michael George Manin petitions for review of a National Transportation Safety Board (" NTSB" or " Board" ) order affirming the Federal Aviation Administration's (" FAA" ) emergency revocation of his airline transport pilot, flight instructor, flight engineer, and first class airman medical certificates for failure to provide correct information about his criminal history on a series of applications for renewal of his medical certificate. Because the NTSB's decision departed from agency precedent without explanation and was inconsistent with recent case law in this circuit, we vacate the Board's order and remand for further proceedings consistent with this opinion. I. Petitioner Michael Manin had for several years before the events under review held various FAA certificates, including a first class airman medical certificate, which is a certification by a physician that the pilot meets medical standards for aircraft operation. A first class airman medical certificate must be renewed periodically: every year for pilots under the age of 40 and every six months for pilots aged 40 and older. The application for renewal of this medical certificate includes questions regarding the applicant's criminal history. The FAA revoked Manin's airline transport pilot certificate and his medical certificate in 1994 for intentional falsification of a medical application, after discovering that he had failed to disclose a March 1992 conviction for making a false statement on a passport application. Manin made the proper disclosure on his next application and was issued a medical certificate in February He regularly applied for and received renewals of his certificate in succeeding years. On December 14, 1995, Manin was convicted in the Barberton, Ohio, Municipal Court of disorderly conduct, which is classified as a " minor misdemeanor" under Barberton's municipal code. He next applied for a medical certificate on June 1, Question 18(w) on the application Page 1241 asks: " Have you ever had or have you now any... [h]istory of nontraffic conviction(s) (misdemeanors or felonies)." Manin answered " yes" and wrote " previously reported, no change." His lawyer confirmed during the administrative proceedings that this disclosure referred only to the 1992 conviction. On April 8, 1997, Manin was again convicted in Barberton Municipal Court of disorderly conduct. On subsequent medical certificate applications, Manin repeatedly failed to disclose either the 1995 or 1997 convictions. In late 2007, the FAA discovered Manin's two disorderly conduct convictions. On June 20, 2008, it issued an emergency order immediately revoking his flight certificates and his first class airman medical certificate because of his " multiple falsifications" on airman medical certificate applications in violation of 14 C.F.R Manin filed an answer to this emergency revocation order, which doubled as an administrative complaint, and in his answer he asserted the affirmative defenses that the complaint was stale under NTSB regulations and that the equitable doctrine of laches applied. He also asserted that he " belie[ved] that the disorderly charge was a minor summary offense, [and] would not have to be reported." The parties filed cross-motions for summary judgment with the ALJ assigned to hear the case. The ALJ initially denied both motions, finding that material issues of fact remained in dispute. At a hearing before the ALJ on September 16, 2008, the FAA renewed its motion for summary judgment. The ALJ granted the motion and affirmed the emergency revocation order. Manin appealed to the full Board, which affirmed. In its opinion, the NTSB piggybacked its unelaborated rejection of his laches defense on its longer discussion of why the stale complaint rule is inapplicable, stating that the Board has " long held that the doctrine of laches is relevant to Board cases only in the context of the stale complaint rule." Adm'r v. Manin, NTSB Order No. EA-5430, 2008 WL , at *3 (April 13, 2009). The Board also rejected Manin's protestations that he did not commit an intentional falsification because he did not know that he was required to report a conviction for a " minor misdemeanor." It stated that " a respondent's own interpretation of the requirements of a medical certificate" was not relevant to a determination of intentional falsity. Id. at *4. The Sky Is Falling: Drone Regulation Update 33

40 Our review of the Board's opinion and order is governed by the Administrative Procedure Act, which instructs us to uphold the NTSB's decision unless it is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S. C. 706(2)(A). II. A. Laches is " an equitable defense that applies where there is (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Pro Football, Inc. v. Harjo, 565 F.3d 880, 882 (D.C.Cir.2009) (internal quotation marks omitted). Manin asserted the laches defense in the administrative proceedings against him, arguing that (1) over 12 years had passed since the time of his first conviction for disorderly conduct, and (2) this passage of time prejudiced his defense, because witnesses and relevant files were no longer available and his own memory of the events in question had faded. In addition, he said, the FAA had delayed for longer than six months after discovering Manin's previous convictions before revoking his certificates. Manin also invoked the NTSB's stale complaint rule, which Page 1242 provides for the dismissal of a complaint stating allegations that occurred more than six months prior to the FAA's advising the respondent of the reasons for the complaint. 49 C.F.R If the complaint alleges that an airman lacks the qualifications to hold a certificate, the stale complaint rule does not apply. 49 C.F.R (b). The ALJ found any delay in the FAA's commencement of its action against Manin to be " inconsequential," because the FAA " proceeded diligently" once it became aware of Manin's previous convictions. Manin challenged this decision in his appeal to the Board. The Board held that the stale complaint rule was inapplicable because under Board precedent an allegation of intentional falsification amounts to an allegation of a lack of qualifications. Manin, 2008 WL , at *3 (citing Adm'r v. Brassington, NTSB Order No. EA-5180, 2005 WL , at *6 (Oct. 5, 2005)). Stating that it had " long held that the doctrine of laches is relevant to Board cases only in the context of the stale complaint rule" -and citing three cases to illustrate its point-the Board also rejected Manin's laches defense. Id. at *3. As the FAA now acknowledges, the Board's statement describing the " long held" limitation on the applicability of the doctrine of laches was simply not accurate. Board case law establishes that the laches defense may be available even when the stale complaint rule is inapplicable. " The Board has indicated on several occasions that, notwithstanding the fact that a complaint may survive dismissal under the stale complaint rule, it might still be subject to attack if an airman could establish actual prejudice in his defense which is attributable to the Administrator's delay." Adm'r v. Wells, 7 N.T.S.B. 1247, 1249 (1991); see alsoadm'r v. Peterson, 6 N.T.S.B. 1306, 1307 n. 8 (1989). In stating the contrary and failing to offer any explanation for its departure from its own precedent, the NTSB acted arbitrarily and capriciously. SeeRamaprakash v. FAA, 346 F.3d 1121, 1124 (D.C.Cir.2003) (" Agencies are free to change course as their expertise and experience may suggest or require, but when they do so they must provide a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored." (internal quotation marks omitted)). The FAA argues that the Board's order should be affirmed despite its unexplained departure from precedent because Manin failed to establish a genuine issue of material fact concerning whether the FAA's alleged delay in revoking his certificates resulted in actual prejudice to his defense. However, we cannot affirm on that basis. It is true that the Board will not give an airman the benefit of a laches defense when he makes only " conclusory allegations... that delay has adversely affected [his] ability to locate witnesses or produce evidence," because such allegations are " insufficient to establish that an airman has in fact been prejudiced in defending against a charge." Peterson, 6 N.T.S.B. at 1307 n. 8; see alsoadm'r v. Shrader, 6 N.T.S.B. 1400, 1403 (1989) (" It is not sufficient... simply to claim... that the passage of time has or may have affected the availability of documents or witnesses or the strength of the latters' memories." ). It is also true that Manin made his assertions of prejudice in vague and conclusory terms: He never identified particular people he was hoping to find or specific details he had forgotten. Nor did he explain how any people, files, or memories that he can no longer access would enhance his ability to defend against the revocation of his airman certificates. Therefore, if the Board had considered the merits of Manin's laches defense at the summary judgment Page 1243 stage, it may well have ruled just as it did. But, with limited exception, the law does not allow us to affirm an agency decision on a ground other than that relied upon by the agency. SeeSEC v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct. 454, 87 L.Ed. 626 (1943); America's Cmty. Bankers v. FDIC, 200 F.3d 822, 835 (D.C.Cir.2000).[1] When an agency departs from its prior precedent without explanation, as the NTSB did here, its judgment cannot be upheld. " [W]e do not require an agency to grapple with every last one of its precedents, no matter how distinguishable... At the same time, we have never approved an agency's decision to completely ignore relevant precedent... [A]n agency's failure to come to grips with conflicting precedent constitutes ' an inexcusable departure from the essential requirement of reasoned decision making.' " Jicarilla Apache Nation v. Dep't of the Interior, 613 F.3d 1112, 1120 (D.C.Cir.2010) (internal citations and quotation marks omitted). Because the NTSB incorrectly construed its own case law as allowing consideration of a laches defense only in the context of the stale complaint rule, and rejected Manin's assertion of laches on that basis, we remand to the agency for reconsideration of Manin's defense. We reiterate that we are not suggesting that the Board could not have properly reached the same conclusion on a different basis, only that we cannot accept that basis as a post hoc justification when the reason offered by the Board does not withstand review. B. 34 The Sky Is Falling: Drone Regulation Update

41 Manin also defended on the merits against the charge of intentional falsification. Intentional falsification of an airman medical certificate, as prohibited by 14 C.F.R (a)(1), has three elements: " (1) a false representation (2) in reference to a material fact (3) made with knowledge of its falsity." Singleton v. Babbitt, 588 F.3d 1078, 1082 (D.C.Cir.2009) (per curiam) (quoting Hart v. McLucas, 535 F.2d 516, 519 (9th Cir.1976)). The FAA accused Manin of committing intentional falsification when he repeatedly failed to disclose his 1995 and 1997 convictions for disorderly conduct in response to the query whether he had ever had a " history of nontraffic conviction(s) (misdemeanors or felonies)." Manin maintained that the agency failed to prove the third element of the offense. He denied ever making a knowing and intentionally false statement, insisting that " to the best of his knowledge and belief [he] was never arrested or convicted for a non traffic Misdemeanor or Felony." He initially argued to the agency that he believed the two convictions to be " minor summary offenses" that did not need to be reported. (Elaborating on this defense before the Board, Manin's counsel explained that although Ohio classified disorderly conduct as a " minor misdemeanor," it would in other jurisdictions be called a " minor summary offense." ). Counsel explained further that Manin understood his offense to be " a very, very minor infraction," in a separate category from the " misdemeanors" requested on the medical certificate application. Manin offered no further explanation as to why he believed Page 1244 the term " misdemeanor" did not include all " misdemeanors," including those designated as " minor." The ALJ and the NTSB both rejected Manin's defense. The Board, citing several cases, declared that it had " previously rejected a respondent's own interpretation of the requirements of a medical certificate." Manin, 2008 WL , at *4. It concluded that Manin's assertions that he believed he did not have to report the convictions did not create a genuine issue of material fact. After the Board issued its opinion, we decided two cases emphasizing that, under Board law, " a pilot's understanding of a question is not irrelevant to whether he offered an intentionally false answer under (a)(1)." Singleton, 588 F.3d at 1082; see alsodillmon v. NTSB, 588 F.3d 1085, (D.C.Cir.2009). In Dillmon and Singleton, decided the same day, we stressed that the FAA is required to prove not only that an airman knew that he had been convicted of an offense in the past, but also that he knew that he was required to report that offense in his response to question 18(w). SeeDillmon, 588 F.3d at ; Singleton, 588 F.3d at In other words, the FAA must " prove the airman subjectively understood what the question meant." Dillmon, 588 F.3d at Our analysis in these cases drew on the Board's own interpretation of the intent element of intentional falsification. Seeid. As we noted, the Board declared in Administrator v. Reynolds that a determination of whether the intent element had been met " necessarily hinged on respondent's understanding of what information the question was intended to elicit." Id. (quoting Adm'r v.reynolds, NTSB Order No. EA-5135, 2005 WL , at *4-5 (Jan. 24, 2005)). " Having announced this interpretation of the intent element in Reynolds, the Board was obligated to apply it consistently." Id. It did not do so in Manin's case, instead treating Manin's subjective understanding of the requirements of question 18(w) as irrelevant. The FAA now argues that the decision of the Board was correct because Manin failed to offer any proof in support of his assertion that he misunderstood the question: He did not testify before the ALJ or the NTSB, and the record does not contain any statement whatsoever from Manin himself explaining his contemporaneous understanding of the question. Because Manin did not create a genuine issue of material fact, the FAA concludes, the Board's decision should be affirmed. We decline once again to affirm the decision of the Board on an alternate basis. SeeChenery, 318 U.S. at 87-88, 63 S.Ct The Board rejected Manin's knowledge argument without considering the adequacy of the proof offered in its support because it incorrectly treated Manin's own interpretation of the requirements of question 18(w) as irrelevant. As our decisions in Dillmon and Singleton made clear, Board precedent requires consideration of a pilot's subjective understanding of questions on a medical certificate application. The Board's unexplained failure to adhere to this precedent renders its action arbitrary and capricious. SeeRamaprakash, 346 F.3d at We remand to the agency for further consideration of Manin's assertion that he did not understand question 18(w) to require him to report his 1995 and 1997 convictions for disorderly conduct. As with the laches defense, we make clear that we are not rejecting the possibility of the Board employing on remand the reasoning the FAA has asserted in its briefing before us. We reject that reasoning not necessarily because it lacks merit, but because it was not relied upon in the decision under review. Page 1245 III. We generally may not uphold agency action on a basis other than that relied upon by the agency. In affirming the revocation of Michael George Manin's airman certificates, the NTSB departed from its own precedent twice, without explanation. Accordingly, we vacate the Board's decision and remand for further proceedings consistent with Board precedent and the precedent of this Court. So Ordered Notes: [1] The FAA invokes the harmless error doctrine, which derives from the APA. See 5 U.S. C We have previously held that " [w]hen ' there is not the slightest uncertainty as to the outcome of a proceeding' on remand, courts can affirm an agency decision on grounds other than those provided in the agency decision." Envirocare of Utah, Inc. v. Nuclear Regulatory Comm'n, 194 F.3d 72, 79 (D.C.Cir.1999) (quoting NLRB v. Wyman-Gordon, 394 U.S. 759, 766 n. 6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969)). We cast no doubt on the validity of this doctrine but find only that the FAA has not met the standard here The Sky Is Falling: Drone Regulation Update 35

42 The Pirker Case MICHAEL P. HUERTA, Administrator, Federal Aviation Administration, Complainant, v. RAPHAEL PIRKER, Respondent. No. CP-217 NTSB Order No. EA-5730 United States Court of National Transportation Safety Board, Washington, D.C. November 18, 2014 Adopted by the NATIONAL TRANSPORTATION SAFETY BOARD at its office in Washington, D.C. on the 17th day of November, 2014 OPINION AND ORDER 1. Background The Administrator of the Federal Aviation Administration (FAA) appeals the decisional order of Administrative Law Judge Patrick G. Geraghty, issued March 6, 2014, vacating the Administrator's order of assessment against respondent.[1] The assessment ordered respondent to pay a civil penalty in the amount of $10, based on a violation of 14 C.F.R (a) for alleged careless or reckless operation of an unmanned aircraft.[2] The law judge's order terminated the enforcement proceeding against respondent, and found 91.13(a) did not apply to respondent's unmanned aircraft because the device was not an "aircraft" for purposes of the regulation. For the following reasons, we reverse the law judge's decisional order and remand for further proceedings. The Administrator issued an assessment order, which served as the complaint in the underlying proceeding, on June 27, The complaint alleged respondent remotely piloted an unmanned aircraft-a Ritewing Zephyr-in a series of maneuvers around the University of Virginia (UVA) campus in Charlottesville, Virginia, on October 17, The complaint alleged respondent operated the unmanned aircraft at altitudes ranging from the "extremely low"-10 feet above ground level (AGL)-up to 1, 500 feet AGL. In the complaint, the Administrator also asserted respondent operated the aircraft, inter alia, "directly towards an individual standing on a... sidewalk causing the individual to take immediate evasive maneuvers so as to avoid being struck by [the] aircraft"; "through a... tunnel containing moving vehicles"; "under a crane"; "below tree top level over a tree lined walkway"; "under an elevated pedestrian walkway"; and "within approximately 100 feet of an active heliport." Respondent allegedly conducted these maneuvers as part of flights for compensation, as the aircraft was equipped with a camera and respondent was "being paid by [a third party] to supply aerial photographs and video of the UVA campus and medical center." Respondent appealed the Administrator's order, and subsequently filed a motion to dismiss the complaint as a matter of law. The Administrator contested respondent's motion, and the law judge later permitted additional pleadings from the parties. The law judge's decisional order granted respondent's appeal. B. Law Judge's Decisional Order When respondent moved to dismiss the complaint, he argued the Federal Aviation Regulations (FARs), [3] which govern the operation of "aircraft, " did not apply to respondent's Ritewing Zephyr. In this regard, respondent argued the aircraft was a "model aircraft" not subject to the regulatory provisions applicable to "aircraft." After considering the parties' written submissions on the motion, the law judge concluded in his decisional order the Zephyr was a "model aircraft" to which 91.13(a) did not apply. Citing the FAA's 1981 advisory circular setting forth "safety standards" for "model aircraft" operations (AC 91-57, June 9, 1981), [4] as well as a 2007 policy notice, [5] the law judge explained the "FAA has distinguished model aircraft as a class excluded from the regulatory and statutory definitions [of the term 'aircraft']." The law judge further stated, "[b]y affixing the word 'model' to 'aircraft' the reasonable inference is that [the Administrator] intended to distinguish and exclude model aircraft" from regulatory provisions applicable to "aircraft."[6]accepting the Administrator's position that respondent's Zephyr was an "aircraft" for purposes of the FARs, the law judge reasoned, "would... result in the risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the 'operator' to the regulatory provisions of [14 C.F.R. part 91 and] Section 91.13(a)."[7] C. Issues on Appeal The Administrator appeals the law judge's order, and presents two main issues. The Administrator argues the law judge erred in determining respondent's Zephyr was not an "aircraft" under 49 U.S.C (a)(6) and 14 C.F.R The Administrator contends the law judge erred in determining respondent's aircraft was not subject to 14 C.F.R (a). We reverse and remand for further proceedings consistent with this Opinion and Order. 2. Decision We review the law judge's order de novo.[8] In addition, we apply rules of construction to interpret statutes and regulations.[9] If the language of a provision is clear and unambiguous on its face, the language controls; if the language is ambiguous, we interpret the provision in reference to, among other factors, the context in which it appears.[10] A. Definition of "Aircraft" This case has provoked interest from a diverse set of stakeholders in the Nation's aviation system, and numerous stakeholders have submitted amici briefs in this case on matters ranging from principles of rulemaking and due process 36 The Sky Is Falling: Drone Regulation Update

43 to First Amendment issues. At this stage of the proceeding, however, we decline to address issues beyond the threshold question that produced the decisional order on appeal: Is respondent's unmanned aircraft system (UAS) an "aircraft" for purposes of 91.13(a), which prohibits any "person" from "operat[ing] an aircraft in a careless or reckless manner so as to endanger the life or property of another"?[11] We answer that question in the affirmative. 1. Plain Language The Administrator's authority to ensure aviation safety largely rests upon the Administrator's statutory responsibility to regulate the operation of "aircraft."[12] Title 49 U.S.C (a)(6) defines "aircraft" as "any contrivance invented, used, or designed to navigate, or fly in, the air." Similarly, 14 C.F.R. 1.1 defines "aircraft" for purposes of the FARs, including 91.13, as "a device that is used or intended to be used for flight in the air." The definitions are clear on their face. Even if we were to accept the law judge's characterization of respondent's aircraft, allegedly used at altitudes up to 1, 500 feet AGL for commercial purposes, as a "model aircraft, " the definitions on their face do not exclude even a "model aircraft" from the meaning of "aircraft." Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. An aircraft is "any" "device" that is "used for flight." We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless. Respondent points out the statutory and regulatory definitions of "aircraft" are drafted in passive voice and reflect what respondent views as an implication that an individual ies or navigates in the air by "using" an aircraft to do so. Respondent argues the term "aircraft" means a device that sustains one or more individuals in flight, thus excluding unmanned aircraft from the definition.[13] We disagree. When Congress enacted the Federal Aviation Act of 1958 (which created the Federal Aviation Agency) and defined "aircraft" in the predecessor provision of 49 U.S.C (a)(6), [14] so-called "drones" were largely the currency of science fiction. Congress demonstrated prescience, however, in the early definition of "aircraft"; it expressly defined the term as any airborne contrivance "now known or hereafter invented, used, or designed for navigation of or flight in the air."[15] Respondent points to the legislative history of the Act-as well as a reference in the Act to policies in furtherance of "air transportation"[16]-as evidence Congress intended the term "aircraft" to mean a manned aircraft. However, the Act did not contain such a distinction, and the definition's use of the passive voice in describing a device that is "used" for flight does not exclude unmanned aircraft. If the operator of an unmanned aircraft is not "using" the aircraft for flight and some derivative purpose-be it aerial photography or purely recreational pleasure-there would be little point in buying such a device. In summary, the plain language of the statutory and regulatory definitions is clear: an "aircraft" is any device used for flight in the air. Furthermore, the statutory and regulatory definitions, as well as Advisory Circular 91-57, and FAA Notice 07-01, contain no express exclusion for unmanned or model aircraft. Neither these definitions nor the plain text of 91.13(a) implies model aircraft are exempt from certain requirements. The Administrator may choose to exclude certain types of aircraft in a practical sense, by refraining from bringing a charge under the FARs against a model aircraft operator; Advisory Circular implies such a practice, and the processes outlined in 14 C.F.R provide a more formal means of seeking exemption. However, for the case sub judice, the plain language of 91.13(a), as well as the definitions quoted above, does not exclude certain categories of aircraft. Therefore, we find the law judge erred in presuming the regulations categorically do not apply to model aircraft. The plain language of the definitions and regulation at issue simply does not support such a conclusion. 2. FAA Policies Regarding Unmanned Aircraft In 1981, the FAA issued Advisory Circular 91-57, which "outlines, and encourages voluntary compliance with, safety standards for model aircraft operators." The advisory circular directs such operators, for example, not to "fly model aircraft higher than 400 feet above the surface" and to take measures to keep model aircraft clear of other aircraft, "populated areas, " and "noise sensitive areas."[17] The advisory circular does not on its face exclude "model aircraft" from the ambit of 14 C.F.R. part 91. In addition, the advisory circular neither defines "model aircraft" nor excludes "model aircraft" from the definition of "aircraft" for purposes of the FARs. In 2007, some 26 years after issuing the advisory circular, amidst growing Congressional interest in rulemaking on unmanned aircraft[18] and growing public interest in the subject of UASs generally, the FAA issued Notice The notice clarified the FAA's requirements regarding unmanned aircraft operations. However, as explained below, the notice does not dispose of the issue in this case, which is whether 91.13(a) applies to unmanned aircraft operations. B. Applicability of 91.13(a) to Respondent's Aircraft Turning to the issue of the Administrator's interpretation that 91.13(a) applies to unmanned aircraft, we find the interpretation is reasonable. The Supreme Court has stated an agency may articulate an interpretation of a regulation via the adjudicative process.[19] Courts have deferred to such interpretations as long as the interpretation is grounded in a reasonable reading of the regulation's text and purpose.[20] Furthermore, even when the interpretation is novel, courts will defer to it, as long as an agency "adequately explains the reasons for a reversal of policy."[21] As stated above, in the case sub judice, the Administrator's application of 91.13(a) to respondent's aircraft is reasonable. Section 91.13(a) states, "Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." As discussed above, neither the plain language of 91.13(a) nor the definitions of "aircraft" applicable to regulations in 14 C.F.R. part 91 exclude unmanned aircraft. The Administrator's interpretation of this text-that it applies to respondent's operation of his Zephyr to prohibit careless or reckless operations-is reasonable, given the broad language of the section. In addition, the Administrator's preamble text in its Notices of Proposed Rulemaking, published in the Federal Register under the The Sky Is Falling: Drone Regulation Update 37

44 Administrative Procedure Act for promulgation of 91.13(a), do not contain any language indicating its application of 91.13(a) to respondent's aircraft is an unreasonable reading of the regulation's text and purpose.[22] The Board has affirmed the Administrator's application of 91.13(a) as an alleged independent violation in other cases in which, presumably, no other regulation would have explicitly prohibited the alleged conduct.[23] Moreover, the Administrator's position that respondent's Zephyr is an "aircraft" is consistent with the Administrator's regulations at 14 C.F.R. part 101, promulgated in part on authority of some of the same statutory provisions underlying 91.13(a), [24] which imposes specific operating limitations with respect to unmanned free balloons, kites, rockets, and moored balloons that rise or travel above the surface of the earth. The language of 14 C.F.R. 91.1(a) specifically excludes these aircraft, as well as ultralights, from the requirements of part 91. Instead, 14 C.F.R. parts 101 and 103 contain regulations governing those types of aircraft. Though they are subject to special operating rules, the unmanned devices covered under part 101 nonetheless are "aircraft." The regulations contain no text suggesting the Administrator considers those devices to be something other than "aircraft"; in fact, 91.1(a), in excluding the devices from the ambit of part 91, specifically refers to the devices as a subset of the term "aircraft."[25] The Administrator's position in this matter that respondent's unmanned aircraft is an "aircraft, " to which 91.13(a) applies, comports with the regulatory approach contained in part 101. Respondent and some amici challenge the Administrator's position as based on a "new" interpretation of 14 C.F.R. 1.1 and 91.13(a) that conflicts with prior agency practice and policy and thus, does not warrant deference. In particular, respondent cites a 2001 internal memorandum by a manager within the FAA's Air Traffic Organization advising the FARs do not apply to "[m]odel aircraft."[26] In addition, respondent relies on a letter attached as Exhibit L to his reply brief, which appears to be the FAA's position in response to the request that precipitated the aforementioned memorandum in Exhibit K. The letter in Exhibit L makes no mention of whether 91.13(a) applies to unmanned aircraft. Respondent also cites a letter by the then-director of the FAA's Flight Standards Division advising a Member of Congress: "a more stringent regulatory approach [than the advisory circular] was necessary" to address increasing unmanned aircraft operations.[27] However, this document, like the others, does not state 91.13(a) only applies to manned aircraft. Nothing in Advisory Circular 91-57, on its face, reflects any intent on the part of the FAA to exempt operators of unmanned or "model aircraft" from the prohibition on careless or reckless operation in 91.13(a). At most, we discern in the advisory circular a recognition on the Administrator's part that certain provisions of the FARs may not be logically applicable to model aircraft flown for recreational purposes. But nothing in the text of the document disclaims, implicitly or explicitly, the Administrator's interest in regulating operations of model aircraft that pose a safety hazard. More importantly, the advisory circular puts the reasonable reader on notice of the Administrator's intent to ensure the safe operation of model aircraft by appropriate means. C. Conclusion This case calls upon us to ascertain a clear, reasonable definition of "aircraft" for purposes of the prohibition on careless and reckless operation in 14 C.F.R (a). We must look no further than the clear, unambiguous plain language of 49 U.S.C (a)(6) and 14 C.F.R. 1.1: an "aircraft" is any "device" "used for flight in the air." This definition includes any aircraft, manned or unmanned, large or small. The prohibition on careless and reckless operation in 91.13(a) applies with respect to the operation of any "aircraft" other than those subject to parts 101 and 103. We therefore remand to the law judge for a full factual hearing to determine whether respondent operated the aircraft "in a careless or reckless manner so as to endanger the life or property of another, " contrary to 91.13(a). ACCORDINGLY, IT IS ORDERED THAT: 1. The Administrator's appeal is granted; 2. The law judge's decisional order is reversed; and 3.The case is remanded to the law judge for further proceedings consistent with this Opinion and Order. HART, Acting Chairman, and SUMWALT, ROSEKIND, and WEENER, Members of the Board, concurred in the above opinion and order. UNITED STATES OF AMERICA NATIONAL TRANSPORTATION SAFETY BOARD OFFICE OF ADMINISTRATIVE LAW JUDGE Served: March 6, 2014 SERVICE: Brendan M. Schulman, Esq. Kramer, Levin, Naftalis & Frankel, LLP 117 Avenue of the Americas New York, NY (Certified Mail and FAX) Brendan A. Kelly, Esq. Office of the Regional Counsel FAA Eastern Region1 Aviation Plaza Jamaica, NY (FAX) DECISIONAL ORDER This matter is before the Board upon the Appeal of Raphael Pirker (herein Respondent), from an Order of Assessment, which seeks to assess Respondent a civil penalty in the sum of $10, U.S. dollars. The Order was issued against Respondent by the Administrator, Federal Aviation Administration (FAA), herein Complainant, and that Order, as provided by Board Rule, serves as the Complaint in this action. The Complaint is comprised of eleven Numbered Paragraphs of allegations.[1] In the first paragraph, it is alleged that Respondent acted on or about October 17, 2011, as pilot in command of "a Ritewing Zephyr powered glider aircraft in the vicinity of the University of Virginia (UVA) Charlottesville, Virginia..." The next allegation Paragraph avers that 38 The Sky Is Falling: Drone Regulation Update

45 that aircraft, "...is an Unmanned Aircraft System (UAS)..."[2] It is further alleged that Respondent's flight operation was for compensation, in that payment was received for video and photographs taken during that flight. As a consequence of those allegations, and the remaining factual allegations set forth in the Complaint, it is charged that Respondent acted in violation of the provisions of Part 91, Section 91.13(a), Federal Aviation Regulations (FARs).[3] Respondent has filed a Motion to Dismiss, seeking dismissal upon the assertion that the Complaint is subject to dismissal, as a matter of law, in the absence of a valid rule for application of FAR regulatory authority over model aircraft flight operations. Complainant has submitted a Response[4] in opposition, arguing that the Complaint is not deficient in that, as the nonmoving Party, the allegations of the Complaint must be assumed true, and the Complaint evaluated in manner most favorable to Complainant. This argument is premature. Respondent's Motion does not challenge the sufficiency of the Complaint, and stipulates therein that, solely for purposes of his Motion, the Complaint's allegations are to be assumed as true. Any dispute and argument as to the efficacy of the Complaint must be deferred, pending resolution of the threshold issue of Complainant's authority to exercise FAR regulatory action over model aircraft operations. 14 C.F.R. Part 1, Section 1.1 states as the FAR definition of the term "Aircraft" a "...device that is used or intended to be used for flight in the air..." And Part 91, Section 91.1 states that Part, "...prescribes rules governing operation of aircraft..." Premised upon those FAR provisions and those of 49 U.S.C. Section 40102(a)(6)[5], Complainant argues that Respondent was operating a device or contrivance designed for flight in the air and, therefore, subject to Complainant's regulatory authority. The term, "contrivance" is used in the 49 U.S.C. Section 40102(a)(6) definition, "aircraft", whereas Part 1, Section 1.1, defines an "aircraft" as a "device"; however, the terms are basically synonymous, as both refer to an apparatus intended or used for flight.[6] It is argued by Complainant that, under either definition of the term "aircraft", the definition includes within its scope a model aircraft. That argument is, however, contradicted in that Complainant FAA has, heretofore, discriminated in his interpretation/application of those definitions. Complainant has, historically, in their policy notices, modified the term "aircraft" by prefixing the word "model", to distinguish the device/contrivance being considered. By affixing the word "model" to "aircraft" the reasonable inference is that Complainant FAA intended to distinguish and exclude model aircraft from either or both of the aforesaid definitions of "aircraft". To accept Complainant's interpretive argument would lead to a conclusion that those definitions include as an aircraft all types of devices/contrivances intended for, or used for, flight in the air. The extension of that conclusion would then result in the risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the "operator" to the regulatory provisions of FAA Part 91, Section 91.13(a). Complainant's contention that a model aircraft is an "aircraft", as defined in either the statutory or regulatory definition, is diminished on observation that FAA historically has not required model aircraft operators to comply with requirements of FAR Part 21, Section et seq and FAR Part 47, Section 47.3, which require Airworthiness and Registration Certification for an aircraft. The reasonable inference is not that FAA has overlooked the requirements, but, rather that FAA has distinguished model aircraft as a class excluded from the regulatory and statutory definitions. While Complainant states in his Sur-Reply Brief that he is not seeking herein to enforce FAA Policy Statements/Notices concerning model aircraft operation, a consideration of those policy notices is informative.[7] Complainant FAA issued Advisory Circular (AC) AC 91-57, entitled "Model Aircraft Operating Standards", stating the purpose as "...encouraging voluntary compliance with safety standards for model aircraft operators..."[8] That Complainant FAA issued an AC urging model aircraft operators to voluntarily comply with the therein stated "Safety Standards"[9] is incompatible with the argument that model aircraft operators, by application of the statutory and regulatory definition, "aircraft" were simultaneously subject to mandatory compliance with the FARs and subject to FAR regulatory enforcement. That FAA has not deemed every device used for flight in the air to be within the FAR Part 1, Section 1.1 definition, and thus subj ect to provisions of Part 91 FARs, is illustrated on consideration of the FAA regulatory treatment of Ultralights. An Ultralight, a device used for flight in the air, is nevertheless governed by the provisions of Part 103 FARs, and whereupon meeting the criteria stated in Section is defined, not as an "aircraft", but as an "Ultralight Vehicle", subject only to the particular regulatory provisions of Part 103, FARs. It is concluded that, as Complainant: has not issued an enforceable FAR regulatory rule governing model aircraft operation; has historically exempted model aircraft from the statutory FAR definitions of "aircraft" by relegating model aircraft operations to voluntary compliance with the guidance expressed in AC 91-57, Respondent's model aircraft operation was not subject to FAR regulation and enforcement. As previously noted, Complainant has disclaimed that, in this litigation, he is seeking to enforce FAA UAS policy; however, the Complaint asserts that the "aircraft" being operated by Respondent "is an Unmanned Aircraft System (UAS)". Since the classification UAS does not appear in the FARs, it is necessary to examine the FAA policy for the existence of a rule imposing regulatory authority concerning UAS operations. FAA issued on September 16, 2005, Memorandum AFS-400 UAS Policy (Policy 05-01)[10], which was subsequently cancelled, revised, and re-issued on March 13, 2008, as Interim Operational Approval Guidance (Guidance 08-01).[11] The stated purpose of those Memoranda was to issue guidance, not to the general public, but, rather as internal guidance to be used by the appropriate FAA personnel.[12] Significantly, both Memoranda The Sky Is Falling: Drone Regulation Update 39

46 specifically eschew any regulatory authority of the expressed policy, stating respectively that, "this policy is not meant as a substitute for any regulatory process..."[13] As policy statements of an agency are not - aside from the fact that the guidance policy therein expressed is stated as for internal FAA use - binding upon the general public[14], and as any regulatory effect is disclaimed, these Policy Memoranda cannot be, and are not, found as establishing a valid rule for classifying a model aircraft as an UAS, or as furnishing basis for assertion of FAR regulatory authority vis a vis model aircraft operations. On February 13, 2007, FAA Notice was published in the Federal Register with the stated purpose/action of serving as "Notice of Policy; opportunity for feedback..."[15] Under the Section captioned "Policy Statement", it is stated that for an UAS to operate in the National Airspace System (NAS), specific authority is required, and that, pertinent here, for civil aircraft that authority is a special airworthiness certificate. It excludes from that requirement "modelers" -recreational/sport users - and the operational safety authority is iterated as AC It further provides that when the model aircraft is used for "business purposes"[16] - AC is not applicable, as by such use the model aircraft is deemed an UAS, requiring special airworthiness certification.[17] In my view, the iteration of the authority of AC 91-57, even though restricted here, undercuts the contention that model aircraft were considered an aircraft as defined in the FARs, or the Code, and subject to Part 91 FAR regulation. Notice expressly states that its action/purpose is to set forth the current FAA policy for UAS operations, and the requirements are stated, as noted above, under the Section captioned "Policy Statement". As self-defined as a statement of policy, it cannot be considered as establishing a rule or enforceable regulation, since, as discussed supra, policy statements are not binding on the general public. As Notice was published in the Federal Register, even though stated as a "Notice of Policy", it could be argued that it could be considered as legislative rulemaking purporting to set out new, mandatory requirements/limitations requiring public compliance. Notice does not, however, meet the criteria for valid legislative rulemaking, as it was not issued as a Notice of Proposed Rulemaking (NPRM), and if intended to establish a substantive rule, it did not satisfy the requirements of 5 U.S.C., Section 553(d), which requires publication of notice not less than 30 days before the effective date.[18] As it is shown as being issued on February 6, 2007, and published as a Notice of Policy February 13, 2007, it fails this requirement. It is significant that upon comparison of the allegations in the Complaint with the statements put forward in the Policy Statement Section of Notice 07-01, that the allegations made in Complaint Paragraphs 2, 5, and 6, mirror the Policy Notice provisions. That fact contradicts Complainant's assertion that Policy Notice plays no part in this litigation. Those allegations are also found as being inconsistent with the assertion that model aircraft were always included in the FAR Part 1, Section 1.1 definition, and thus subject to Part 91 FAR regulation. If so, it was unnecessary to allege - as in Paragraphs 5 and 6 - flight for compensation/payment which appears to be for the purpose of re-classifying Respondent's model aircraft as an UAS within the terminology of Notice [19] Congress enacted the FAA Modernization Re-authorization and Reform Act of 2012 (2012 Act), and therein addressed in Subtitle B, Unmanned Aircraft Systems.[20] This legislation postdates the events at issue herein; however, the language of provisions of the 2012 Act is instructive. The 2012 Act requires FAA, through the Secretary of Transportation, to develop a plan for integration of civil UAS into the NAS, specifying that the plan contain recommendations for rulemaking to define acceptable standards for operation and certification of civil UAS.[21] The 2012 Act further, in the Subsection Rulemaking, specifies a date for publication of "(1) a final rule on small UAS..." to permit their operation in the NAS.[22] The 2012 Act also contains a provision stating that the Administrator, FAA, "...may not promulgate any rule or regulation regarding a model aircraft...", where the model aircraft satisfies the criteria stated therein.[23] It is a reasonable inference that this language shows that, at the time of enactment of the 2012 Act, the legislators were of the view there were no effective rules or regulations regulating model aircraft operation, elsewise, rather than calling for enactment of such, the 2012 Act would have called for action to repeal, amend, or modify the existing rules or regulations, and not require a date for issuance of a final rule. I find that: 1. Neither the Part 1, Section 1.1, or the 49 U.S.C. Section 40102(a)(6) definitions of "aircraft" are applicable to, or include a model aircraft within their respective definition.[24] 2. Model aircraft operation by Respondent was subject only to the FAA's requested voluntary compliance with the Safety Guidelines stated in AC As Policy Notices and were issued and intended for internal guidance for FAA personnel, they are not a jurisdictional basis for asserting Part 91 FAR enforcement authority on model aircraft operations. 4. Policy Notice does not establish a jurisdictional basis for asserting Part 91, Section 91.13(a) enforcement on Respondent's model aircraft operation, as the Notice is either (a) as it states, a Policy Notice/Statement and hence nonbinding, or (b) an invalid attempt of legislative rulemaking, which fails for non-compliance with the requirement of 5 U.S.C. Section 553, Rulemaking. 5. Specifically, that at the time of Respondent's model aircraft operation, as alleged herein, there was no enforceable FAA rule or FAR Regulation applicable to model aircraft or for classifying model aircraft as an UAS.[25] Upon the findings and conclusions reached, I hold that Respondent's Motion to Dismiss must be AFFIRMED. IT IS ORDERED THAT: 40 The Sky Is Falling: Drone Regulation Update

47 1. Respondent's Motion to Dismiss be, and hereby is: GRANTED. 2. Complainant's Order of Assessment be, and hereby is: VACATED AND SET ASIDE. 3. This proceeding be, and is: TERMINATED WITH PREJUDICE.[26]ENTERED this 6th day of March, 2014, at Denver, Colorado. PATRICK G. GERAGHTY JUDGE. APPEAL (DISPOSITIONAL ORDER) Any party to this proceeding may appeal this order by filing a written notice of appeal within 10 days after the date on which it was served (the service date appears on the first page of this order). An original and 3 copies of the notice of appeal must be filed with the: National Transportation Safety Board Office of Administrative Law Judges 490 L'Enfant Plaza East, S.W. Washington D.C Telephone: (202) or (800) That party must also perfect the appeal by filing a brief in support of the appeal within 30 days after the date of service of this order. An original and one copy of the brief must be filed directly with the: National Transportation Safety Board Office of General Counsel Room L'Enfant Plaza East, S.W. Washington, D.C Telephone: (202) FAX: (202) The Board may dismiss appeals on its own motion, or the motion of another party, when a party who has filed a notice of appeal fails to perfect the appeal by filing a timely appeal brief. A brief in reply to the appeal brief may be filed by any other party within 30 days after that party was served with the appeal brief. An original and one copy of the reply brief must be filed directly with the Office of General Counsel in Room NOTE: Copies of the notice of appeal and briefs must also be served on all other parties to this proceeding. An original and one copy of all papers, including motions and replies, submitted thereafter should be filed directly with the Office of General Counsel in Room Copies of such documents must also be served on the other parties. The Board directs your attention to Rules 7, 43, 47, 48 and 49 of its Rules of Practice in Air Safety Proceedings (codified at 49 C.F.R , , , and ) for further information regarding appeals. ABSENT A SHOWING OF GOOD CAUSE, THE BOARD WILL NOT ACCEPT LATE APPEALS OR APPEAL BRIEFS. ATTACHMENT 1 FEDERAL EXPRESS, REGISTERED MAIL - RETURN RECEIPT REQUESTED. AND ELECTRONIC MAIL Raphael Pirker Melchutistrasse Zurich Switzerland Docket No. 2012EA ORDER OF ASSESSMENT On April 13, 2012, you were advised through a Notice of Proposed Assessment that the FAA proposed to assess a civil penalty in the amount of $10, 000. After consideration of all the available information, it appears that: 1. On or about October 17, 2011, you were the pilot in command of a Ritewing Zephyr powered glider aircraft in the vicinity of the University of Virginia (UVA), Charlottesville, Virginia. 2. The aircraft referenced above is an Unmanned Aircraft System (UAS). 3. At all times relevant herein you did not possess a Federal Aviation Administration pilot certificate. 4. The aircraft referenced above contained a camera mounted on the aircraft which sent real time video to you on the ground. 5. You operated the flight referenced above for compensation. 6. Specifically, you were being paid by Lewis Communications to supply aerial photographs and video of the UVA campus and medical center. 7. You deliberately operated the above-described aircraft at extremely low altitudes over vehicles, buildings, people, streets, and structures. 8. Specifically, you operated the above-described aircraft at altitudes of approximately 10 feet to approximately 400 feet over the University of Virginia in a careless or reckless manner so as to endanger the life or property of another. 9. Fox example, you deliberately operated the above-described aircraft in the following manner: a. You operated the aircraft directly towards an individual standing on a UVA sidewalk causing the individual to take immediate evasive maneuvers so as to avoid being struck by your aircraft. The Sky Is Falling: Drone Regulation Update 41

48 b. You operated the aircraft through a UVA tunnel containing moving vehicles. c. You operated the aircraft under a crane. d. You operated the aircraft below tree top level over a tree lined walkway. e. You operated the aircraft within approximately 15 feet of a UVA statue. f. You operated the aircraft within approximately 50 feet of railway tracks. g. You operated the aircraft within approximately 50 feet of numerous individuals. h. You operated the aircraft within approximately 20 feet of a UVA active street containing numerous pedestrians and cars. i. You operated the aircraft within approximately 25 feet of numerous UVA buildings. j. You operated the aircraft on at least three occasions under an elevated pedestrian walkway and above an active street. k. You operated the aircraft directly towards a two story UVA building below rooftop level and made an abrupt climb in order to avoid hitting the building. 1. You operated the aircraft within approximately 100 feet of an active heliport at UVA. 10.Additionally, in a careless or reckless manner so as to endanger the life or property of another, you operated the above-described aircraft at altitudes between 10 and 1500 feet AGL when you failed to take precautions to prevent collision hazards with other aircraft that may have been flying within the vicinity of your aircraft. 11.By reason of the above, you operated an aircraft in a careless or reckless manner so as to endanger the life or property of another. By reason of the foregoing, you violated the following section(s) of the Federal Aviation Regulations: a. Section 91.13(a), which states that no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another. NOW THEREFORE, IT IS ORDERED, pursuant to 49 U.S.C (a)(l) and (d)(2) and 46301(a)(5), that you be and hereby are assessed a civil penalty in the amount of $10, 000. You may pay the penalty amount by submitting a certified check or money order payable to the "Federal Aviation Administration" to the Office of Accounting, 1 Aviation Plaza, Jamaica, NY In the alternative, you may pay your civil penalty with a credit card over the Internet. To pay electronically, visit the web site athttp://div.dot.gov/fea.htmand click on "Civil Fines and Penalty Payments" which will bring you to the "FAA Civil Penalty Payments Eastern Region" page. You must then complete the requested information and click "submit" to pay by credit card. ATTACHMENT 2 (Image Omitted) Specifications MODEL: Zephry II MANUFACTURER: Rite Wing RC (ritewingrc.com) DISTRIBUTOR: Rite Wing RC TYPE: electric flying wing SMALLEST FLYING AREA: football field IDEAL FOR: intermediate or advanced WINGSPAN: 56 in. WING AREA: 770 sq. in. READY-TO-FLY WEIGHT: 41bs 7oz WING LOADING: 16 oz sq.ft PRICE: $ CENTER-OF-GRAVITY: 9 3/8" back from nose GEAR USED Radio: Spektrum DX8, Orange rx, (2) RiteWingRC metal gear servos-elevons Motor: RiteWingRC 1200kv, 65amp ESC (ritewingrc.com), Turnigy 5amp 26v BEC (hobbyking.com) ATTACHMENT 3 AC Date June 9, 1981 ADVISORY CIRCULAR DEPARTMENT OF TRANSPORTATION Subject: MODEL AIRCRAFT OPERATING STANDARDS 1. PURPOSE. This advisory circular outlines, and encourages voluntary-compliance with, safety standards for model aircraft operators. 2. BACKGROUND. Modelers, generally, are concerned about safety and do exercise good judgement when flying model aircraft. However, model aircraft can at times pose a hazard to full-scale aircraft in flight and to persons'and property on the surface. Compliance with the following standards will help reduce the potential for that hazard and create a good neighbor environment with affected communities and airspace users. 3. OPERATING STANDARDS. a. Select an operating site that is of sufficient distance from populated areas. The selected site should be away from noise sensitive areas such as parks, schools, hospitals, churches, etc. 42 The Sky Is Falling: Drone Regulation Update

49 b. Do not operate model aircraft in the presence of spectators until the aircraft is successfully flight tested and proven airworthy. c. Do not fly model aircraft higher than 400 feet above the surface. When flying aircraft within 3 miles of an airport, notify the airport operator, or when an air traffic facility is located at the airport, notify the control tower, or flight service station. d. Give right of way to, and avoid flying in the proximity of, full-scale aircraft. Use observers to help if possible. e. Do not hesitate to ask for assistance from any airport traffic control. t-nwr or flight service station concerning compliance with these standards. R. J. VAN VUREN Director, Air Traffic Service Notes: [1] A copy of the decisional order is attached. [2] Section 91.13(a) prohibits operation of "an aircraft in a careless or reckless manner so as to endanger the life or property of another." [3] 14 C.F.R. 1.1, et seq. [4] Available at [5] Fed. Aviation Admin., Unmanned Aircraft Operations in the National Airspace System, Notice 07-01, 72 Fed. Reg (Feb. 13, 2007) (hereinafter "FAA Notice 07-01"). [6] Decisional Order at 3. [7] Id. [8] Administrator v. Dustman, NTSB Order No. EA-5657 at 6 (2013) (citing Administrator v. Smith, NTSB Order No. EA-5646 at 8 (2013), Administrator v. Frohmuth and Dworak, NTSB Order No. EA-3816 at 2 n.5 (1993); Administrator v. Wolf, NTSB Order No. EA-3450 (1991); Administrator v. Schneider, 1 N.T.S.B (1972)). [9] See generally Exelon Generation Co., LLC v. Local 15, Int'l Bhd. of Elec. Workers, AFL-CIO, 676 F.3d 566, 570 (7th Cir. 2012), as amended (May 9, 2012) (stating, "[t]he same rules of construction apply to administrative rules as to statutes."); see also Administrator v. Glennon and Shewbart, NTSB Order No. EA-5411 at (2008). [10] See Robinson v. Shell Oil Co., 519 U.S. 337, (1997). [11] Some of the legal issues presented in amici briefs are not within the Board's jurisdiction. For example, we have long held that constitutional issues, such as the First Amendment issues raised by amici news organizations, are outside the scope of our review. See, e.g., Garvey v. McCullough, NTSB Order No. EA-4592 at 2-3 (1997) (noting "the Board does not have the ultimate authority to rule on constitutional questions"); Hinson v. Ciampa, NTSB Order No. EA-4210 at 4 (1994). [12] See, e.g., 49 U.S.C (b)(1) ("The Administrator... shall... assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace."), ("The Administrator of the Federal Aviation Administration shall promote safe flight of civil aircraft in air commerce by prescribing [safety regulations in various areas]."). [13] Reply Br. at [14] Federal Aviation Act of 1958, Pub. L. No , 101(5), 72 Stat. 731, 737 (1958). [15] Id. (emphasis added). [16] Respondent cites a provision of the Act (section 102) containing a reference to "air transportation" in the context of a declaration of national aviation policy. Reply Br. at 15. This section, however, applied to the regulatory functions of the Civil Aeronautics Board, which regulated the rates and routes of air carriers. [But sections 102(b) and 102(e) refer to "safety".] The duties of the Administrator of the Federal Aviation Agency were the subject of the following section, section 103, which directed the Administrator to consider safety-related policy interests, including: "the regulation of air commerce in such manner as to best promote its development and safety" and "control of the use of the navigable airspace... and the regulation of both civil and military operations in such airspace." Pub. L. No , 103, 72 Stat [17] Id. at 3. [18] See, e.g., Federal Aviation Administration Reauthorization Act of 2007, H.R. 2881, title III, subtitle B (110th Cong. 2007) (House-passed FAA reauthorization that was not enacted but would have required rulemaking on, inter alia, integration into the National Airspace System of commercial unmanned aircraft and development of requirements for integration of small unmanned aircraft). [19] NLRB v. Bell Aerospace Co., 416 U.S. 267, (1974); cf. Morton v. Ruiz, 415 U.S. 199, 232 (1974) (cautioning agencies "to avoid the inherently arbitrary nature of unpublished ad hoc determinations"); see also AKM LLC v. Sec'y of Labor, 675 F.3d 752, 754 (D.C. Cir. 2012) (citing Martin v. OSHRC, 499 U.S. 144 (1991), and stating the Chevron standard supplying deference to the agency's interpretation applies, "even if the [agency's] interpretation arises in an administrative adjudication rather than in a formal rulemaking process"). [20] Otis Elevator Co. v. Sec'y of Labor, --- F.3d ----, 2014 WL (D.C. Cir. 2014); see also Taylor v. Huerta, 723 F.3d 210 (D.C. Cir. 2013) (stating, "[n]or is it uncommon for an adjudicative body to defer to the reasonable legal interpretations of an agency clothed with enforcement and rulemaking powers"). [21] National Cable & Telecommunications Ass'n v. Brand X Internet Serv U.S. 967, 981 (2005). [22] 50 Fed. Reg (Mar. 20, 1985); 46 Fed. Reg (Sept. 10, 1981). The Sky Is Falling: Drone Regulation Update 43

50 [23] See, e.g., Administrator v. Nickl, NTSB Order No. EA-5287 (2007); see generally Administrator v. Hollabaugh, NTSB Order No. EA-5609 (2011). [24] See note 12, supra; 49 U.S.C and [25] 14 C.F.R. 91.1(a) states, "this part prescribes rules governing the operation of aircraft (other than moored balloons, kites, unmanned rockets, and unmanned free balloons, which are governed by part 101 of this chapter, and ultralight vehicles operated in accordance with part 103 of this chapter) within the United States...." [26] Resp. Br. at 11; Resp. Br. Exh. K. This internal memorandum does not appear to have been distributed to the public at large as official FAA guidance on the subject of unmanned aircraft operations. It appears to have been written by an Air Traffic Organization manager who is not an official of the Flight Standards division with formal responsibility for prosecuting enforcement proceedings under the FARs. [27] Resp. Br. at 11-12; Resp. Br. Exh. M. [1] See Attachment 1, Order of Assessment, for a full statement of the allegations. [2] See Attachment 2 Specifications: Ritewing Zephyr 11. [3] Part 91, Section 91.13(a) provides: No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another. [4] The Parties were granted leave to file supplemental Briefs, and all submissions have been considered. [5] 49 U.S.C. Section 40102(a)(6): Aircraft means any contrivance invented, used, or designed to navigate or fly in the air. [6] Webster's New Dictionary of Synonyms, "contrivance" at 188; "device" at 236. Roget's Thesaurus 4th Ed. At [7] FAA Policy Notices are addressed subsequently. [8] Attachment 3, Advisory Circular, AC 91-57, June 9, [9] Id. at Paragraph 3. [10] Title: Unmanned Aircraft Systems Operations in the U.S. National Airspace System - Interim Operational Approval Guidance. [11] Title: Unmanned Aircraft Systems Operations in the U.S. National Airspace System. [12] Policy at 1; Guidance at 2. [13] Policy at 1; Guidance at 2, 3. [14] Syncor Int'l Corp. v. Shalala, 56F.3d 592, 595 (5th Cir. 1995). [15] 72 Fed. Reg (2007). [16] Id. at 6690 (2007), Policy Statement "business" is not defined, so it is unclear if the term is limited to ongoing enterprises held out to the general public, or if it includes a one-time operation for any form or amount of compensation. [17] 72 Fed. Reg (2007). [18] 5 U.S.C. Section Rulemaking. The exceptions stated in Section 553(d) are not applicable, particularly Exception (2), in that Notice does not interpret an existing rule or policy statement - it is a statement of current policy. [19] On Complainant's theory, Respondent could be charged directly as operating an "aircraft" contrary to the provisions of Section 91.13(a). Compensation/payment could arguably then be a factor for resolving: careless or reckless operation; appropriate sanction/severity of a civil penalty. [20] Public Law , 126 Stat. 72 (February 14, 2012). [21] Id. at Section 332(a) (1) (2) (1) (b) (i). [22] Id. at Section 332(b), Rulemaking. [23] Id. at Section 332 (a). [24] Accepting Complainant's overreaching interpretation of the definition "aircraft", would result reductio ad obsurdum in assertion of FAR regulatory authority over any device/object used or capable of flight in the air, regardless of method of propulsion or duration of flight. [25] On the FAA's decades long holding out to model aircraft operators/public that the only FAA policy regarding model aircraft operations was the requested voluntary compliance with the Safety Guidelines of AC 91-57, it would likely require for assertion of a Rule or FAR authority concerning model aircraft operations, for the FAA to undertake rulemaking as required by 5 U.S.C. Section 553 Rulemaking. Alaska Professional Hunters Association, Inc. v. Federal Aviation Administration, 177 F.3d 1030 (D.C. Cir. 1999), Shell Offshore, Inc. v. Babbitt, 238 F.3d 622 (5th Cir. 2001). [26] In light of the decision reached herein, other issues raised, and argument made need not be, and are not, addressed The Sky Is Falling: Drone Regulation Update

51 The Sky Is Falling: Drone Regulation Update 45

52 46 The Sky Is Falling: Drone Regulation Update

53 Part B: The Sky is Falling: Trespass, Nuisance and Privacy A. Commercial vs. Recreational Use: Legal Issues and Liability Fly for Work/Business Below are the basic things an operator must know for flying under the small UAS rule (14 CFR part 107): Pilot Requirements: Must be at least 16 years old Must pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center Must be vetted by the Transportation Safety Administration (TSA) A person who already holds a pilot certificate issued under 14 CFR part 61 and has successfully completed a flight review within the previous 24 months can complete a part 107 online training course at to satisfy this requirement. For more information, read about Remote Pilot Certification. Aircraft Requirements: Less than 55 lbs. Must be registered. Operating Rules: Class G airspace* Must keep the aircraft in sight (visual line-of-sight)* Must fly under 400 feet* Must fly during the day* Must fly at or below 100 mph* Must yield right of way to manned aircraft* Must NOT fly over people* See: Rev. 8/26/2016 An application for a Certificate of Waiver, issued in accordance with 14 CFR , must provide justification that the operation can be safely conducted by satisfying the performance-based standards listed below Waiver policy and requirements. (a) The Administrator may issue a certificate of waiver authorizing a deviation from any regulation specified in of this subpart if the Administrator finds that a proposed small UAS operation can be safely conducted under the terms of that certificate of waiver. The Sky Is Falling: Drone Regulation Update 47

54 (b) A request for a certificate of waiver must contain a complete description of the proposed operation and justification that establishes that the operation can safely be conducted under the terms of a certificate of waiver. (c) The Administrator may prescribe additional limitations that the Administrator considers necessary. (d) A person who receives a certificate of waiver issued under this section: (1) May deviate from the regulations of this part to the extent specified in the certificate of waiver; and (2) Must comply with any conditions or limitations that are specified in the certificate of waiver Operations from Moving Vehicle or Aircraft No person may operate a small unmanned aircraft system - (a) From a moving aircraft; or (b) From a moving land or water-borne vehicle unless the small unmanned aircraft is flown over a sparsely populated area and is not transporting another person s property for compensation or hire. Performance-Based Standards 1. Applicant must provide a method to ensure the dynamic area-of-operation is properly evaluated for potential hazards, and the risks presented to non-participating persons and property by those hazards are controlled or eliminated. 2. Applicant must provide a method to ensure visual line of sight is maintained from a moving vehicle. 3. Applicant must provide a method to ensure all persons involved in the operation are free of any distractions that may prevent them from fulfilling their duties. 4. Applicant must provide a method to ensure loss of data link procedures account for dynamic location of remote pilot in command Daylight operation. (a) No person may operate a small unmanned aircraft system during night. (b) No person may operate a small unmanned aircraft system during periods of civil twilight unless the small unmanned aircraft has lighted anti-collision lighting visible for at least 3 statute miles. The remote pilot in command may reduce the intensity of the anticollision lighting if he or she determines that, because of operating conditions, it would be in the interest of safety to do so. (c) For purposes of subsection (b) of this section, civil twilight refers to the following: (1) Except for Alaska, a period of time that begins 30 minutes before official sunrise and ends at official sunrise; 48 The Sky Is Falling: Drone Regulation Update

55 (2) Except for Alaska, a period of time that begins at official sunset and ends 30 minutes after official sunset; and (3) In Alaska, the period of civil twilight as defined in the Air Almanac. Performance-Based Standards 1. Applicant must provide a method for the remote pilot to maintain visual line of sight during darkness. 2. Applicant must provide a method for the remote pilot to see and avoid other aircraft, people on the ground, and ground-based structures and obstacles during darkness. 3. Applicant must provide a method by which the remote pilot will be able to continuously know and determine the position, altitude, attitude, and movement of their small unmanned aircraft (sua). 4. Applicant must assure all required persons participating in the sua operation have knowledge to recognize and overcome visual illusions caused by darkness, and understand physiological conditions which may degrade night vision. 5. Applicant must provide a method to increase conspicuity of the sua to be seen at a distance of 3 statute miles unless a system is in place that can avoid all non-participating aircraft Visual line of sight aircraft operation. (a) With vision that is unaided by any device other than corrective lenses, the remote pilot in command, the visual observer (if one is used), and the person manipulating the flight control of the small unmanned aircraft system must be able to see the unmanned aircraft throughout the entire flight in order to: (1) Know the unmanned aircraft s location; (2) Determine the unmanned aircraft s attitude, altitude, and direction of flight; (3) Observe the airspace for other air traffic or hazards; and (4) Determine that the unmanned aircraft does not endanger the life or property of another. (b) Throughout the entire flight of the small unmanned aircraft, the ability described in subsection (a) of this section must be exercised by either: (1) The remote pilot in command and the person manipulating the flight controls of the small unmanned aircraft system; or (2) A visual observer. The Sky Is Falling: Drone Regulation Update 49

56 Performance-Based Standards 1. Applicant must provide the method by which the remote pilot will be able to continuously know and determine the position, altitude, attitude, and movement of their sua and ensure the aircraft remains in the area of intended operation. 2. Applicant must provide a method for the remote pilot to avoid other aircraft, people on the ground, and ground-based structures and obstacles at all times. 3. Applicant must provide a method to increase conspicuity of the sua to be seen at a distance of 3 statute miles unless a system is in place that can avoid all non-participating aircraft. 4. Applicant must provide a means by which the remote pilot is alerted of a degraded suas function. 5. Applicant must provide a method to assure all required persons participating in the operation have relevant knowledge of all aspects of operating a sua that is not in visual line of sight of the remote pilot Visual observer. If a visual observer is used during the aircraft operation, all of the following requirements must be met: (a) The remote pilot in command, the person manipulating the flight controls of the small unmanned aircraft system, and the visual observer must maintain effective communication with each other at all times. (b) The remote pilot in command must ensure that the visual observer is able to see the unmanned aircraft in the manner specified in (c) The remote pilot in command, the person manipulating the flight controls of the small unmanned aircraft system, and the visual observer must coordinate to do the following: (1) Scan the airspace where the small unmanned aircraft is operating for any potential collision hazard; and (2) Maintain awareness of the position of the small unmanned aircraft through direct visual observation. Performance-Based Standards None. Visual Observers are not required, and thus waiving stand-alone would not be valuable in a scenario Operation of multiple small unmanned aircraft. A person may not operate or act as a remote pilot in command or visual observer in the operation of more than one unmanned aircraft at the same time. 50 The Sky Is Falling: Drone Regulation Update

57 Performance-Based Standards 1. The applicant must provide a means to resolve failure of single and multiple aircraft or systems Operation near aircraft; right-of-way rules. (a) Each small unmanned aircraft must yield the right of way to all aircraft, airborne vehicles, and launch and reentry vehicles. Yielding the right of way means that the small unmanned aircraft must give way to the aircraft or vehicle and may not pass over, under, or ahead of it unless well clear. Performance-Based Standards 1. Applicant must provide a method for a manned aircraft pilot, who is participating in a joint operation involving a sua, to detect and avoid the sua Operation over human beings. No person may operate a small unmanned aircraft over a human being unless that human being is: (a) Directly participating in the operation of the small unmanned aircraft; or (b) Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft. Performance-Based Standards 1. Applicant must provide a method such that any malfunction of the suas will not cause injuries to non-participating persons on the ground. 2. Applicant must mitigate risk to non-participants through an operational risk assessment, testing, and data, addressing design features, operational limitations, or a combination thereof specific to the operation. 3. Applicant must address the risk from exposure to rotating parts and sharp edges which could injure a non-participating person. 4. Applicant must show the pilot in command, or person manipulating the controls, have adequate knowledge, experience, and ability to safely operate an unmanned aircraft over nonparticipating persons including recent flight experience within last 30 days. The Sky Is Falling: Drone Regulation Update 51

58 Operation in certain airspace. No person may operate a small unmanned aircraft in Class B, Class C, or Class D airspace or within the lateral boundaries of the surface area of Class E airspace designated for an airport unless that person has prior authorization from Air Traffic Control (ATC). Performance-Based Standards 1. Applicant must provide a method to ensure the sua will operate safely and efficiently within 2. the specified controlled airspace without obtaining prior authorization from Air Traffic Control. 2. Applicant must have a way of being contacted by ATC in case the operation needs to be terminated. 3. Applicant must explain why the FAA s established authorization process would prevent or hinder their UA operation from occurring (a) Operating limitations for small unmanned aircraft. Groundspeed. A remote pilot in command and the person manipulating the flight controls of the small unmanned aircraft system must comply with all of the following operating limitations when operating a small unmanned aircraft system: (a) The groundspeed of the small unmanned aircraft may not exceed 87 knots (100 miles per hour). Performance-Based Standards 1. Applicant must provide a method to ensure loss of control of a sua at higher speed poses no additional hazard to other aircraft, people, or property on the ground. Any additional risks posed by hazards must be controlled or eliminated. 2. Applicant must provide a method for the sua to be seen at a distance of 1 statute mile unless a system is in place that can avoid all non-participating aircraft. 3. Applicant must have a way of being contacted by ATC in case the operation needs to be terminated (b) Operating limitations for small unmanned aircraft. Altitude. A remote pilot in command and the person manipulating the flight controls of the small unmanned aircraft system must comply with all of the following operating limitations when operating a small unmanned aircraft system: (b) The altitude of the small unmanned aircraft cannot be higher than 400 feet above ground level, unless the small unmanned aircraft: 52 The Sky Is Falling: Drone Regulation Update

59 (1) Is flown within a 400-foot radius of a structure; and (2) Does not fly higher than 400 feet above the structure s immediate uppermost limit. Performance-Based Standards 1. Applicant must provide a method to ensure the sua will be able to avoid non- participating aircraft and structures when operating at altitudes other than (b) 2. Applicant must provide a method for the sua to be seen at a distance of 1 statute mile unless a system is in place that can avoid all non-participating aircraft.. Applicant must provide a method for the remote PIC to accurately determine the sua s altitude, attitude and direction of flight. 4. Applicant must provide the Lat/Long and radius of the proposed operation (c) Operating limitations for small unmanned aircraft. Visibility. A remote pilot in command and the person manipulating the flight controls of the small unmanned aircraft system must comply with all of the following operating limitations when operating a small unmanned aircraft system: (c) The minimum flight visibility, as observed from the location of the control station must be no less than 3 statute miles. For purposes of this section, flight visibility means the average slant distance from the control station at which prominent unlighted objects may be seen and identified by day and prominent lighted objects may be seen and identified by night. Performance-Based Standards 1. Applicant must provide a method for the remote pilot to maintain visual line of sight with the sua when operating with visibility less than 3 miles statute miles. 2. Applicant must provide a method to ensure the sua will be able to avoid non- participating aircraft when operating with visibility less than 3 statute miles. 3. Applicant must provide a method to increase conspicuity of the sua to be seen at a distance of 3 statute miles unless a system is in place that can avoid all non-participating aircraft (d) Operating limitations for small unmanned aircraft. Cloud clearance. A remote pilot in command and the person manipulating the flight controls of the small unmanned aircraft system must comply with all of the following operating limitations when operating a small unmanned aircraft system: (d) The minimum distance of the small unmanned aircraft from clouds must be no less than: (1) 500 feet below the cloud; and (2) 2,000 feet horizontally from the cloud. The Sky Is Falling: Drone Regulation Update 53

60 Performance-Based Standards 1. Applicant must provide a method for the remote pilot to maintain visual line of sight with the sua when operating closer to clouds than the distances prescribed in (d). 2. Applicant must provide a method to ensure the sua will be able to avoid non- participating aircraft when operating closer to clouds than the distances prescribed in (d). 3. Applicant must provide a method to increase conspicuity of the sua to be seen at a distance of 3 statute miles unless a system is in place that can avoid all non-participating aircraft. Fly for Fun You don't need permission from the FAA to fly your UAS (aka drone) for fun or recreation, but you must always fly safely. Before you fly outside you must: Register your UAS if it weighs more than 0.55 pounds and less than 55 pounds Label your UAS with your registration number Read and understand all safety guidelines You must be: 13 years of age or older (if the owner is less than 13 years of age, a person 13 years of age or older must register the small unmanned aircraft) A U.S. citizen or legal permanent resident* * Visiting foreign nationals must register their UAS upon arrival in the United States (online registration serves as a certificate of ownership). To register, you'll need: address Credit or Debit card Physical address and mailing address (if different from physical address) Registration costs $5 and is valid for 3 years. Register UAS that weigh less than 55 lbs. and more than 0.55 lbs. online Register UAS that weigh more than 55 lbs. by paper Label your UAS (PDF) 54 The Sky Is Falling: Drone Regulation Update

61 Safety Guidelines Fly at or below 400 feet Keep your UAS within sight Never fly near other aircraft, especially near airports Never fly over groups of people Never fly over stadiums or sports events Never fly near emergency response efforts such as fires Never fly under the influence Be aware of airspace requirements Additional Resources Examples of UAS that do and do not require registration (PDF) Browse the geographic listing of suas registry enrollments and registrants (as of 2/3/2017) (MS Excel) Review the UAS Registration FAQs to learn more about the program Read the Aircraft Registration Records System of Records Notice (PDF) Questions about UAS Registration? or call or international (703) from 10am-6pm EST, Monday through Friday. UAS Over 55 Pounds - The 333 Exemption. FEDERAL AVIATION ADMINISTRATION Public Guidance for Petitions for Exemption Filed under Section 333 This document provides guidance to people who are interested in submitting a petition for exemption to the FAA to operate unmanned aircraft in the National Airspace System (NAS). Specifically, this document outlines the FAA s exemption process and describes the information petitioners should submit to the FAA in a petition for exemption. This information will assist the FAA in determining whether to grant relief from its regulations and will assist the Secretary of Transportation with determining whether to grant relief from airworthiness certification requirements under the FAA Modernization and Reform Act of 2012, Public Law FEB. 14, 2012, Section 333. BACKGROUND: The FAA s continuing mission is to provide the safest, most efficient aerospace system in the world. However, the National Airspace System (NAS) is not static and must constantly adapt to new technologies and applications, as evidenced by the proliferation of unmanned aircraft systems (UAS). Because UAS are inherently different from manned aircraft, introducing UAS into the nation s airspace is challenging for both the FAA and aviation community. In the FAA Modernization and Reform Act of 2012, Public Law (P.L ), Congress mandated the safe and expedient integration of UAS into the NAS. For public operation including national, state, and local government agencies, as well as public universities the FAA issues a Certificate of Waiver or Authorization (COA) permitting public The Sky Is Falling: Drone Regulation Update 55

62 agencies and organizations to operate a particular UAS, for a specific purpose, in a designated area. The objective is to issue a COA with terms that ensure an equivalent level of safety to manned aircraft operations. Usually, this entails several safety mitigations including, but not limited to, requiring that the UA not operate in a congested area and is observed either by someone in a manned aircraft or someone on the ground. Public operators self-certify the airworthiness of the UAS design. Civil UAS operators have the option to obtain FAA airworthiness certification. They may apply for a special airworthiness certificate in the experimental category under Title 14 of the Code of Federal Regulations (14 CFR) for the purposes of research and development, crew training, or market survey. They may also apply for type certification under 21.17(b) (for a standard airworthiness certificate in the special class category) or (for a special airworthiness certificate in the restricted category). Recognizing the demand to expedite integration of UAS into the NAS, the FAA is developing a regulatory framework for safely integrating UAS into routine NAS operations. The first stage in this process will be accomplished by the small UAS rule. The FAA s authority to issue exemptions from operating rules, and the Secretary s authority granted by Section 333 of P.L , Special Rules for Certain Unmanned Aircraft Systems, provide an opportunity to authorize certain UAS operations in the NAS prior to implementation of the small UAS rule. This incremental step provides a pathway for civil operators who desire safe and legal entry into the NAS. TERMS OF REFERENCE: 1. Aircraft: any contrivance invented, used, or designed to navigate, or fly in, the air (Title 49, United States Code (49 USC) 40102) 2. National Airspace System (NAS): the common network of U.S. airspace; air navigation facilities, equipment and services, airports or landing areas; aeronautical charts, information and services; rules, regulations and procedures, technical information, and manpower and material 3. Operational Control: with respect to a flight, means the exercise of authority over initiating, conducting or terminating a flight (14 CFR 1.1) 4. Pilot in Command (PIC): the person who has final authority and responsibility for the operation and safety of the flight; has been designated as PIC before or during the flight; and holds the appropriate category class and type-rating, if appropriate, for the conduct of the flight (14 CFR 1.1) 5. Unmanned aircraft (UA): any aircraft that is operated without the possibility of direct human intervention from within or on the aircraft (P.L , Section 331) 6. Unmanned Aircraft System (UAS): an unmanned aircraft and associated elements, including communication links and the components that control the unmanned aircraft, that are required for the pilot in command to operate safely and efficiently in the national airspace system (P.L , Section 331) 7. UAS Certificate of Waiver or Authorization (COA): an authorization issued by the Air Traffic Organization to an operator for a specific unmanned aircraft activity 8. Visual Line of Sight (VLOS): unaided (corrective lenses and/or sunglasses excepted) visual contact between a pilot in command and an unmanned aircraft sufficient to maintain safe operational control of the aircraft, know its location, and be able to scan the airspace in which it is operating to see and avoid other air traffic or objects aloft or on the ground 56 The Sky Is Falling: Drone Regulation Update

63 INTRODUCTION: Section 333 grants the Secretary of Transportation authority to determine: 1. If an unmanned aircraft system, as a result of its size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight does not create a hazard to users of the national airspace system or the public or pose a threat to national security; and 2. Whether a certificate of waiver, certificate of authorization, or airworthiness certification under 49 USC 44704, is required for the operation of unmanned aircraft systems identified under paragraph (1). Although Section 333 provides limited statutory flexibility relative to 49 USC and for the purposes of airworthiness certification, it does not provide flexibility relative to other sections of 49 USC or Federal Aviation Regulations. For example, requires that all aircraft, including UAS, be registered in accordance with part 47 of the regulations and must provide identification markings in accordance with part 45, Subpart C. Because UAS are aircraft, they are subject to the noise certification and testing requirements of part 36. However, if a determination is made under Section 333 that an airworthiness certificate is not required, noise certification and testing will also not be required for the subject aircraft for the term of the exemption. When the finding required by Section 333 cannot be made, the requirements of part 36 continue to apply. Section 333 does not provide flexibility for the statutory requirement to hold an airman certificate under Therefore the PIC, who has final authority and responsibility for the operation and safety of the UAS flight, must possess the appropriate airman certificate as prescribed by 14 CFR part 61 for the proposed operation and the appropriate medical certificate as prescribed by 14 CFR part 67. Furthermore, the Transportation Security Administration (TSA) conducts security screenings of certificated airmen. UAS operations authorized under Section 333 will only be conducted by airmen with valid airmen certificates, which have been screened by TSA, thereby meeting the statutory requirement in Section 333 for operations to not pose a threat to national security. Because Section 333 provides limited relief from certain certifications or authorizations, UAS operators must comply with all other applicable regulations concerning the operation of aircraft unless otherwise exempted by the FAA. UAS operations conducted for purposes other than hobby or recreation are subject to the regulations in 14 CFR. In addition to petitioning for the relief afforded under Section 333, UAS operators must petition for exemption from regulations applicable to the specific circumstances of their operations with which they believe they are unable to comply. If a petitioner has any questions with regard to the applicability of Federal Aviation Regulations, s/he is encouraged to discuss with FAA officials prior to submitting an exemption request. Prior to commencing operations, the operator will need to obtain an exemption and a COA from the FAA. More information about the exemption process is available here. Additional guidance for preparing The Sky Is Falling: Drone Regulation Update 57

64 petitions for exemption under Section 333 authority and applying for COAs is provided below. The FAA will only grant exemptions for UAS under the operational control of the petitioner (person or organization). Exemptions will not be granted to a UAS manufacturer unless the manufacturer intends to maintain operational control of the UAS. PREPARING A PETITION FOR EXEMPTION: The FAA s mission is to provide the safest, most efficient aerospace system in the world. The use of aircraft that have not been subject to an airworthiness certification process may introduce unique safety risks with respect to the NAS that must be appropriately mitigated prior to authorizing operation. In order for the FAA to consider a petition for exemption, the petition must meet the requirements of 14 CFR In order to make an effective evaluation of the requested relief, the FAA will need to analyze the petitioner s proposed UAS operation with regard to safety. The following information will be considered in making that evaluation: Regarding the Unmanned Aircraft System 1. Petitioners should describe how the proposed UAS operation will be safely conducted to minimize risk to the NAS or to persons and property on the ground. Specifically, petitioners should describe the design and operational characteristics for the type(s) of UAS they intend to operate, e.g. aircraft performance and performance limitations, operating procedures, and aircraft loading information in as much detail as possible. This could be provided in the petition or in an Aircraft Flight Manual or similar document. NOTE: The FAA will consider all information and data submitted by the petitioner that describes the UAS developmental and operational history. This could include statistical data or other documentation for the specific design and performance characteristics of the UAS, including the operational history and operational failure modes, obtained through previous Research & Development (R&D) and/or flight test activities, e.g. operations conducted under a COA, with a civil airworthiness certificate, or under other authorized operating conditions. 2. Petitioners should describe any procedures they would implement, such as pre-flight inspections, maintenance, and repair, to ensure that the UAS is in a condition for safe flight. This could be provided in the petition, an Aircraft Flight Manual, a Maintenance and Inspection Manual, or similar document. NOTE: The Aircraft Flight Manual and Maintenance and Inspection Manual may be separate documents or combined in a single document. 3. The petitioner should describe the Radio Frequency (RF) spectrum used for control of the UAS and associated equipment that is part of the UAS (i.e., sensors, cameras, etc.), and whether it complies with Federal Communications Commission (FCC) or other appropriate government oversight agency requirements. NOTE: Petitioners should be able to provide the FCC approval letter or show compliance with FCC requirements upon request. Regarding the Unmanned Aircraft PIC 4. Petitioners should describe the qualifications required of any PIC(s) who will be directly responsible for the operation of the UAS, including information such as: the level of 58 The Sky Is Falling: Drone Regulation Update

65 airman certificate held; any applicable training related to the operation; and any minimum hours of flight experience required by the PIC(s), both total flight time and the time with the particular UAS. If the operation would use visual observers, petitioners should describe their roles and qualifications. 5. Petitioners should describe the medical standards and certification of the PIC(s) directly responsible for the operation of the UAS. Regarding the Operation of the Unmanned Aircraft 6. Petitioners should fully describe their intended UAS operation(s). Petitioners should describe how the proposed operation(s) would not adversely affect safety, or how they would provide a level of safety at least equivalent to that provided by the rule from which exemption is sought. Petitioners should address any plans to implement clearly defined operational borders and procedures to ensure public safety, which includes persons and property both in the air and on the ground. This can be described in the petition, in an Operations Manual, or similar document. NOTE: The FAA will closely examine the proposed operation(s) with respect to safety of flight, NAS safety considerations, and the safety of the non-participating persons and property during the operational period and within the operational area. 7. Petitioners should specify the proposed maximum operating speed and altitude, and describe minimum flight visibility and distance from clouds for their intended operation(s). Petitioners should describe potential hazards and safety mitigations associated with these proposed conditions. These issues can be addressed in the petition, an Operations Manual, or similar document. 8. Petitioners should describe the characteristics of the area of intended operation(s) and the associated potential hazards, in accordance with the statutory mandate under Section 333 regarding proximity to populated areas. These issues can be addressed in the petition, an Operations Manual, or similar document. 9. Petitioners should describe if they intend to operate in the proximity of any airports, in ccordance with the statutory mandate under Section 333 regarding proximity to airports. 10. The UAS must be operated within visual line-of-sight (VLOS), in accordance with the statutory mandate under Section 333(b)(1). Petitioners should describe how they intend to comply with his mandate. 11. Petitioners should describe any procedures they would implement for conducting a preflight safety risk assessment to determine that the UAS is in a condition for safe flight (14 CFR 91.7(b)) and that the planned operation can be completed safely. These procedures can be addressed in the petition, an Aircraft Flight Manual, Operations Manual, or similar document. 12. If petitioners intend to conduct operations which have existing requirements to notify Flight Standards District Offices (FSDOs) prior to operations such as motion picture and television filming, or pipeline and powerline patrol petitioners should describe their intended coordination in this regard for their proposed operation(s). The Sky Is Falling: Drone Regulation Update 59

66 13. The FAA intends to require entities who obtain an exemption under this process to also obtain a Certificate of Waiver or Authorization (COA) from the FAA Air Traffic Organization prior to conducting operation(s) in the NAS. The COA application is available here. In seeking authorization, petitioners will require exemptions from regulations with which they cannot fully comply. The table below provides guidance regarding regulations from which a petitioner may require exemption. However, some proposed operations may require exemption from regulations not listed here, while others may not require exemption from all regulations listed here. 14 CFR PART SUMMARY OF REGULATION Part 21 Airworthiness Certification 21, Subpart H Certification procedures for products and parts, Airworthiness Certificates Part 61 Certification: Pilots, Light Instructors, and Ground Instructors Part 91 General Operating and Flight Rules (b)(2) Preflight action Flight crewmembers at stations Flight instruction Minimum safe altitudes Altimeter settings Fuel requirements for flights in VFR conditions Maintenance required Operation after maintenance Inspections Maintenance records FILING A PETITION FOR EXEMPTION: A petition for exemption is prepared and filed in accordance with 14 CFR The regulations in 14 CFR establish appropriate safety standards for aircraft, operators, and crewmembers. If a proposed operation can be performed in full compliance with aviation safety regulations, an exemption is not routinely granted. To allow the FAA to thoroughly evaluate each request, petitioners should allow at least 120 days for processing and review of any exemption requests. Petitions for Exemption and any supporting materials should be submitted using any of the following methods: (1) Federal erulemaking Portal: Go to and follow the online instructions for sending your comments electronically (a petition is submitted as a comment); or 60 The Sky Is Falling: Drone Regulation Update

67 (2) Mail: Send your petition to Docket Operations, M-30; U.S. Department of Transportation (DOT), 1200 New Jersey Avenue, SE., Room W12-140, West Building Ground Floor, Washington, DC ; or (3) Hand Delivery or Courier: Take your petition to Docket Operations in Room W of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or (4) Fax: Fax your petition to Docket Operations at If you already have received a docket number, you must reference that docket number in your request. Sample 333 Application form: AS_Civil_COA_Request_v2.pdf After getting your Blanket 333 Waiver: Blanket-400-COA-Effective.pdf Noise, Nuisance and Safety Considerations FAA Preemption No Drone Specific Regulations on noise. ELECTRONIC CODE OF FEDERAL REGULATIONS e-cfr data is current as of April 28, 2017 Title 14 Chapter I Subchapter C Part 36 Title 14: Aeronautics and Space PART 36 NOISE STANDARDS: AIRCRAFT TYPE AND AIRWORTHINESS CERTIFICATION Contents Subpart A General 36.1 Applicability and definitions Requirements as of date of application. The Sky Is Falling: Drone Regulation Update 61

68 36.3 Compatibility with airworthiness requirements Limitation of part Incorporation by reference Acoustical change: Transport category large airplanes and jet airplanes Acoustical change: Propeller-driven small airplanes and propeller-driven commuter category airplanes Acoustical change: Helicopters Acoustical change: Tiltrotor aircraft. Subpart B Transport Category Large Airplanes and Jet Airplanes Noise measurement and evaluation Noise limits Flight Manual Statement of Chapter 4 equivalency. Subpart C [Reserved] Subpart D Noise Limits for Supersonic Transport Category Airplanes Noise limits: Concorde. Subpart E [Reserved] Subpart F Propeller Driven Small Airplanes and Propeller-Driven, Commuter Category Airplanes Noise limits. Subpart G [Reserved] Subpart H Helicopters Noise measurement Noise evaluation and calculation Noise limits. Subparts I-J [Reserved] Subpart K Tiltrotors Noise measurement and evaluation Noise limits. Subparts L-N [Reserved] Subpart O Documentation, Operating Limitations and Information Procedures, noise levels and other information Manuals, markings, and placards Noncomplying agricultural and fire fighting airplanes. Appendix A to Part 36 Aircraft Noise Measurement and Evaluation Under Appendix B to Part 36 Noise Levels for Transport Category and Jet Airplanes Under Appendixes C-E to Part 36 [Reserved] 62 The Sky Is Falling: Drone Regulation Update

69 Appendix F to Part 36 Flyover Noise Requirements for Propeller-Driven Small Airplane and Propeller-Driven, Commuter Category Airplane Certification Tests Prior to December 22, 1988 Appendix G to Part 36 Takeoff Noise Requirements for Propeller-Driven Small Airplane and Propeller-Driven, Commuter Category Airplane Certification Tests on or After December 22, 1988 Appendix H to Part 36 Noise Requirements For Helicopters Under Subpart H Appendix I to Part 36 [Reserved] Appendix J to Part 36 Alternative Noise Certification Procedure for Helicopters Under Subpart H Having a Maximum Certificated Takeoff Weight of Not More Than 7,000 Pounds Appendix K to Part 36 Noise Requirements for Tiltrotors Under Subpart K. Liability and Other Concerns. A. Insurance Coverage. Most homeowner s insurance policies currently cover damages caused by fly for fun drones. That may be changing, as insurers seek to limit their liability. If your client is flying a drone for commercial purposes, they should obtain hull and liability coverage. Unmanned Risk Management is writing this type of coverage. See: B. Civil and Criminal Penalties. As noted in Section 4 of your materials, the FAA may assess significant civil penalties for violating its 14 CFR 107 registration and operational rules. Failure to register a UAS, including Model Aircraft, in accordance with these rules may result in regulatory and criminal sanctions. The FAA may assess civil penalties up to $27,500. Criminal penalties include fines of up to $250,000 and/or imprisonment for up to three years. C. Real Estate Lease Issues and Violations. If you are flying from real property which you lease, and the lease limits your use of the property to specific activities which do not aviation, you may violate your lease by conducting UAS operations on that property. Read your lease. D. Nuisance Laws. The federal government has exclusive sovereignty of airspace in the United States [49 U.S.C (a)(1) ], and the FAA sets all standards for flight safety [49 U.S.C (b)(1)], preempting the entire field from state and local regulation. See, eg. Abdullah v. American Airlines, Inc., 181 F.3d. 363, 367 (3d Cir. 1999). [State and local regulation of aviation would create a patchwork of rules that would make a national air transportation system impossible]; Command Helicopters, Inc. v City of Chicago, 691 F.Supp. 1148, 1151 (N.D. Ill. 1988) [city ordinance imposing helicopter safety regulations invalid]; Allegheny Airlines v. Village of Cedarhurst, 132 F.Supp. 871 (1955) [village ordinance banning flights below 1000 feet invalid]. The Federal Noise Control Act of 1972, 42 U.S.C. 4901, pre-empts the entire field of aircraft noise regulation. See, eg. City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973). These statutes and precedent indicate that State nuisance laws will not support nuisance litigation. No Federal statute appears to support nuisance litigation against drones. The Sky Is Falling: Drone Regulation Update 63

70 E State Laws. Indiana SB 299 defines unmanned aerial vehicle and creates a number of new criminal offenses. One offense, a sex offender unmanned aerial vehicle offense, occurs when a sex offender uses a UAV to follow, contact, or capture images or recordings of someone and the sex offender is subject to conditions that prohibit them from doing so. The offense of public safety remote aerial interference occurs when someone operated a UAV in a way that is intended to obstruct of interfere with a public safety official in the course of their duties. The law also creates the offense of remote aerial harassment. All of these offenses are class A misdemeanors. However, if the person has a prior conviction under the same section, it becomes a level 6 felony. It is also a class A misdemeanor to commit remote aerial voyeurism. It becomes a level 6 felony if the person publishes the images, makes them available on the internet or shares them with another person. Kentucky HB 540 allows commercial airports to prepare unmanned aircraft facility maps. The bill specifies that UAS operators cannot operate, take off or land in areas designated by an airport s map. It also prohibits operation of UAS in a reckless manner that creates a serious risk of physical injury or damage to property. Anyone who violates these provisions is guilty of a class A misdemeanor, or a class D felony if the violation causes a significant change of course or a serious disruption to the safe travel of an aircraft. The law specifies that these provisions do not apply to commercial operators in compliance with FAA regulations. South Dakota SB 22 exempts UAS that weigh less than 55 pounds from aircraft registration requirements. SB 80 defines drone as a powered aerial vehicle without a human operator that can fly autonomously or be piloted remotely. The law requires that UAS operation comply with all applicable FAA requirements. It also prohibits operation of drones over the grounds of correctional and military facilities, making such operation a class 1 misdemeanor. If a drone is used to deliver contraband or drugs to a correctional facility, the operator is guilty of a class 6 felony. The law also modifies the crime of unlawful surveillance to include intentional use of a drone to observe, photograph or record someone in a private place with a reasonable expectation of privacy and landing a drone on the property of an individual without that person s consent. Unlawful surveillance is a class 1 misdemeanor. The unlawful surveillance provisions do not apply to individuals operating a drone for commercial or agricultural purposes or to emergency management workers using a drone in their duties. Utah HB 217 prohibits a person from intentionally, knowingly, or recklessly chasing, actively disturbing, or harming livestock through the use of UAS. Anyone who violates this law is guilty of a class B misdemeanor for the first offense and a class A misdemeanor for a subsequent offense or if livestock is seriously injured or killed or there is damage in excess of $1,000. Utah SB 111 reorganizes existing laws addressing UAS. It also preempts local regulation of UAS and exempts UAS from aircraft registration in the state. The law addresses UAS use by law enforcement, allowing use for purposes unrelated to a criminal investigation. It also requires law enforcement create an official record when using UAS that provides information regarding the use of the drone and any data acquired. The law makes it a class B misdemeanor to fly a UAS that carries a weapon or has a weapon attached. Exceptions include if a person has authorization from the FAA, the state or federal government. The law also defines safe operation of unmanned aircraft, specifying operational requirements for recreational operators. The operator must maintain visual line of sight, cannot operate within certain airspace, cannot operate in a way that 64 The Sky Is Falling: Drone Regulation Update

71 interferes with operations at an airport, heliport or seaplane base, cannot operate from specified locations, and must operate below 400 feet unless it is within 400 feet of a structure. Any operator who violates these requirements is liable for any damages and law enforcement shall issue a written warning for the first violation. A second violation is an infraction and any subsequent violations are class B misdemeanors. The offense of criminal trespass is modified to include drones entering and remaining unlawfully over property with specified intent. Depending on the intent, a violation is either a class B misdemeanor, a class A misdemeanor or an infraction. The law also specifies that a person is not guilty of what would otherwise be a privacy violation if the person is operating a UAS for legitimate commercial or education purposes consistent with FAA regulations. It also modifies the offense of voyeurism, a class B misdemeanor, to include the use of any type of technology, including UAS, to secretly record video of a person in certain instances. Virginia HB 2350 makes it a Class 1 misdemeanor to use UAS to trespass upon the property of another for the purpose of secretly or furtively peeping, spying, or attempting to peep or spy into a dwelling or occupied building located on such property. SB 873 specifies that the fire chief or other officer in charge of a fire department has authority to maintain order at an emergency incident including the immediate airspace. Individuals who don t obey the orders of the officer in charge are guilty of a class 4 misdemeanor. Wyoming SF 170 defines the term operator and defines unmanned aircraft to exclude small unmanned aircraft, weighing less than 55 pounds. The law requires the Wyoming Aeronautics Commission to develop rules regulating where unmanned aircraft can take off and land. The commission is also permitted to develop reasonable rules regulating the operation of unmanned aircraft through coordination with the unmanned aircraft industry and local governments. The law specifies that the commission does not have the power to regulate unmanned aircraft operation in navigable airspace. It also makes it unlawful to land an unmanned aircraft on the property of another person, but operators can pilot an unmanned aircraft over their own property State Laws. Eighteen states Alaska, Arizona, California, Delaware, Idaho, Illinois, Indiana, Kansas, Louisiana, Michigan, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia and Wisconsin passed 32 pieces of legislation during 2016 which address UAS activities. You can find a State by State listing of each State s UAS drone statutes at: Whether any of these laws will withstand challenge based on federal preemption remains an open question. Prior cited precedent suggests that any State law which regulates UAS will not survive a preemption challenge. F. Trespass Case Law - At least one District Court has found that it did not have jurisdiction under federal law to address the shooting down of a drone, as trespass. The FAA defines drones as aircraft, and would not likely agree with this opinion. The Sky Is Falling: Drone Regulation Update 65

72 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIVIL ACTION NO. 3:16-CV TBR WILLIAM H. MERIDETH JOHN DAVID BOGG, PLAINTIFF v. MEMORANDUM OPINION DEFENDANT This matter is before the Court on Defendant William H. Merideth s motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. [DN 14.] Plaintiff John David Boggs responded. [DN 15.] Merideth replied. [DN 16.] Boggs filed a supplemental pleading in support of his response. [DN 17.] Fully briefed, this matter is ripe for adjudication. For the following reasons, Merideth s motion to dismiss [DN 14] is GRANTED. The Court will enter a separate Order and Judgment consistent with this Memorandum Opinion. BACKGROUND Plaintiff Boggs brought the instant action after Defendant Merideth shot down Boggs unmanned aircraft, or drone, with a shotgun. [DN 1.] Plaintiff first seeks a declaratory judgment finding that 1) an unmanned aircraft is an aircraft under federal law, 2) an unmanned aircraft operating in Class G airspace is operating in navigable airspace within the exclusive jurisdiction of the United States, 3) Boggs was operating his unmanned aircraft in this navigable airspace in the exclusive jurisdiction of the United States, rather than on Merideth s property, 4) the operating of his unmanned aircraft in this manner did not violate Merideth s reasonable expectation of privacy, and 5) a property owner cannot shoot at an unmanned aircraft operating in navigable airspace within the exclusive jurisdiction of the United States when operating in the manner in which Boggs alleges his unmanned aircraft 66 The Sky Is Falling: Drone Regulation Update

73 was operating. [DN 1 at 7 8.] Second, Boggs brings a claim for trespass to chattels under Kentucky state law, for which he seeks damages in the amount of $1,500.00, the amount in which Boggs alleges his unmanned aircraft was damaged by Merideth. [Id. at 8.] Merideth brought the instant motion, alleging that Boggs complaint merely anticipates defenses Merideth could raise and that Boggs claim for a declaratory judgment does not provide this Court with subject matter jurisdiction. [DN 14.] Boggs makes several arguments in response, the essence of which is that Boggs was flying his unmanned aircraft in the sovereign navigable airspace of the United States, and therefore that resolution of his claims in federal court is proper. [DN 15.] STANDARD Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may assert by motion the defense of lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). Because the parties here do not request that the Court make any factual determinations in ruling on the motion to dismiss, but rather dispute only the sufficiency of Boggs complaint, the Court will treat this as a facial 12(b)(1) motion. Id. A facial attack on the subject-matter jurisdiction alleged in the complaint questions merely the sufficiency of the pleading. Gentek Bldg. Prods., Inc. v. Steel Peel Litig., 491 F.3d 320, 330 The Sky Is Falling: Drone Regulation Update 67

74 (6th Cir. 2007). If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3); see also Bauer v. RBX Indus. Inc., 368 F.3d 569 (6th Cir. 2004). DISCUSSION Of the two types of this Court s original jurisdiction, see 28 U.S.C , this case involves the type known as federal question. [DN 1 at 2.] Pursuant to 28 U.S.C. 1331, this Court has original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C In order to trigger federal-question jurisdiction under 1331, a lawsuit must satisfy the well-pleaded complaint rule. Under this rule, a federal question must appear on the face of the complaint rather than as part of a defense, even if a federal-law defense is anticipated. Chase Bank USA, N.A. v. City of Cleveland, 695 F.3d 548, 554 (6th Cir. 2012). For statutory purposes, a case can aris[e] under federal law in two ways. Gunn v. Minton, U.S.,, 133 S. Ct. 1059, 1064 (2013). See also Hampton v. R.J. Corman R.R. Switching Co., 683 F.3d 708, 711 (6th Cir. 2012). First, a case arises under federal law when federal law creates the cause of action asserted. Gunn, 133 S. Ct. at 1064 (citing Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916)). Second, even in situations when a plaintiff brings state law claims, the Supreme Court has identified a special and small category of cases in which arising under jurisdiction still lies. Id. These are state-law claims that implicate significant federal issues. Grable & Sons Metal Prod., Inc. v. Darue Eng g & Mfg., 545 U.S. 308, 312 (2005). This type of federal question jurisdiction exists in cases in which a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution 68 The Sky Is Falling: Drone Regulation Update

75 in federal court without disrupting the federal-state balance approved by Congress. Gunn, 133 S. Ct. at 1065 (citing Grable, 545 U.S. at 314). When all of the requirements are satisfied, jurisdiction is proper because there is a serious federal interest in claiming the advantages thought to be inherent in a federal forum, which can be vindicated without disrupting Congress s intended division of labor between state and federal courts. Id. (citing Grable, 545 U.S. at ). A. Boggs State Law Trespass to Chattels Claim Boggs argues in his response that his Kentucky state law trespass to chattels claim satisfies the requirements for federal question jurisdiction because it necessarily raises a disputed federal issue under the Grable standard; that is, whether Boggs was flying his unmanned aircraft in federal airspace. [DN 15 at 8 9.] For this proposition, Boggs relies, in part, on the Federal Aviation Administration s (FAA) definition of aircraft as a[ny] device that is used or intended to be used for flight in the air. 14 C.F.R Additionally, federal law provides that [t]he United States Government has exclusive sovereignty of airspace of the United States. 49 U.S.C However, as explained in the following analysis, Boggs state law tort claim still does not satisfy the Grable standard of raising significant federal issues. 1. Necessarily Raised Under Kentucky law, a plaintiff can establish trespass to chattels by showing that another person intentionally dispossessed another of his or her chattel or intentionally used or intermeddled with the chattel of another. Ingram Trucking, Inc. v. Allen, 372 S.W.3d 870, 872 (Ky. Ct. App. 2012) (quoting Restatement (Second) of Torts 217 (1965)). Boggs asserts that, pursuant to the first Grable requirement, this claim necessarily raises a federal issue because Merideth will not be liable for trespass to chattels if his actions were legally privileged. [DN15 at 8.] For this argument, Boggs cites the Restatement (Second) of The Sky Is Falling: Drone Regulation Update 69

76 Torts, which provides, in part, that one is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is, or is reasonably believed to be, necessary to protect the actor s land or chattels or his possession of them, and the harm inflicted is not unreasonable as compared with the harm threatened. Restatement (Second) of Torts 260 (1965); [DN 15 at 8.] Boggs claims that if the unmanned aircraft was flying on Merideth s property, his actions may have been privileged, but if it was flying in federal airspace, they would not. [DN 15 at 8 9.] Moreover, Boggs asserts his own legal privilege the right to be [sic] fly an aircraft in federal navigable airspace free from interference by landowners. [Id. at 8 9.] However, the Court is not persuaded that claims of privilege regarding the airspace in which Boggs unmanned aircraft was flying necessarily raise a disputed federal issue. As an initial matter, it appears that, under Kentucky law, claims of privilege are defenses to tort claims. See Smith v. Martin, 331 S.W.3d 637, 640 (Ky. Ct. App. 2011) ( A privilege is recognized as a defense to a defamation claim; the defense may be either absolute or qualified. ); Ronald A. Chisholm, Ltd. v. Am. Cold Storage, Inc., No. 3:09-CV CRS, 2013 WL , at *5 (W.D. Ky. Aug. 20, 2013) ( [Defendant] contends, and the court agrees, that the Restatement outlines and provides [defendant] an affirmative defense to [plaintiff] s claim... that [the privilege of] consent is a complete defense to a claim for trespass to chattels. ); Halle v. Banner Indus. of N.E., Inc., 453 S.W.3d 179, 183 (Ky. Ct. App. 2014) ( [Defendants] filed motions to dismiss appellees original complaint... arguing various defenses including that the claims depend on the judicial statements privilege. ). To the extent Boggs anticipates a defense of privilege that Merideth may raise in response to Boggs trespass of chattels claim, Merideth argues, [DN 16 at 4], and the Court agrees, that the law is clear that [f]ederal question jurisdiction is absent when the 70 The Sky Is Falling: Drone Regulation Update

77 right to be vindicated is State-created and the action was brought into the federal courts merely because an anticipated defense derived from federal law. Bell & Beckwith v. IRS, 766 F.2d 910, 915 (6 th Cir. 1985) (quoting Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673 (1950)). See also Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (citing Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. California, 463 U.S. 1, 12 (1983) (Explaining that federal courts do not obtain federal question jurisdiction on the basis of a federal defense,... even if the defense is anticipated in the plaintiff s complaint, and even if both parties concede that the federal defense is the only question truly at issue. )) Based on the foregoing, it appears to the Court that Boggs not only anticipates Merideth s potential defense that his conduct was privileged due to a need to protect his property, but he goes one step further and anticipates his own response to that potential defense that the privilege does not apply because Boggs was flying his unmanned aircraft in federal airspace rather than on Merideth s property. That Boggs may anticipate the need to argue this does not render his standard trespass to chattels claim one that necessarily raises significant federal issues. See Caterpillar, 482 U.S. at ( [T]he presence of a federal question... in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint. ). Accordingly, the Court is unpersuaded that the issue of whether Boggs unmanned aircraft was flying in federal airspace for purposes of determining whether Merideth s actions were privileged is an issue necessary to Boggs trespass to chattels claim. Gunn, 133 S. Ct. at Actually Disputed Nor is the Court persuaded that a federal issue is actually disputed. Id. at Although Boggs asserts that he operated his unmanned aircraft on federal, rather than The Sky Is Falling: Drone Regulation Update 71

78 private, property, Merideth has not responded to the substance of that argument. However, as the Court will discuss below, resolution of this point is ultimately unnecessary. 3. Substantial Even if Boggs were correct that a federal issue is necessarily raised and actually disputed, his argument would still fail Grable s next requirement; that is, that the disputed federal issue must be substantial. Id. at This inquiry asks not whether the federal issue [is] significant to the particular parties in the immediate suit; that will always be true when the state claim necessarily raise[s] a disputed federal issue, as Grable separately requires. Id. Rather, a finding of substantiality requires an analysis of the importance of the issue to the federal system as a whole. Id. Boggs makes several arguments as to why the alleged federal question is substantial, including that a resolution of the issue will have an impact on federal aviation law, the FAA s ability to regulate air safety and navigation, and the developing body of law regarding the impact of unmanned aircrafts on privacy and property interests. [DN 15 at 9 11.] However, Boggs has not persuaded the Court that resolution of the simple issue of whether Boggs unmanned aircraft was flying on Merideth s property, as opposed to federal property, for the ultimate purpose of determining Merideth s liability for a state law trespass to chattels claim, is significant to the federal system as a whole. Gunn, 133. S. Ct. at Here, Boggs has brought a garden-variety state tort claim. Hampton, 683 F.3d at 712. Although Boggs asserts that, in addressing Boggs response to a potential privilege defense from Merideth, a state court could have to determine the boundaries of federal airspace, [DN 15 at 9], this is insufficient for a finding of substantiality. See Tisdale v. United Ass n of Journeymen & Apprentices of Plumbing & Pipefitting Indus. of U.S. & Canada, Local 704, 25 F.3d 1308,1309 (6th Cir. 1994) ( As in other cases in which a 72 The Sky Is Falling: Drone Regulation Update

79 defendant asserts a defense based on a federal constitutional, statutory, or administrative provision, the state court may have to interpret some text affected by federal law. But this neither invokes removal jurisdiction nor divests the state court of its normal authority to adjudicate a case that contains an issue touching upon federal law. ) The Sixth Circuit has noted that the Supreme Court has identified four aspects of a case or an issue that affect the substantiality of the federal interest in that case or issue: (1) whether the case includes a federal agency, and particularly, whether that agency s compliance with the federal statute is in dispute; (2) whether the federal question is important (i.e., not trivial); (3) whether a decision on the federal question will resolve the case (i.e., the federal question is not merely incidental to the outcome); and (4) whether a decision as to the federal question will control numerous other cases (i.e., the issue is not anomalous or isolated). Mikulski v. Centerior Energy Corp., 501 F.3d 555, 570 (6th Cir. 2007) (citing Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 700 (2006)). First, Boggs concedes that a federal agency is not involved in this case, nor is a federal agency s compliance with a federal statute in dispute. [DN 15 at 10.] Boggs contends, however, that resolution of his trespass to chattels claim directly impacts the FAA s ability to enforce regulations regarding air safety and navigation. [Id.] The Court disagrees. As the Sixth Circuit explained in Mikulski, [w]hile the federal government may have an interest in the uniform application of regulations that relate to the collection of taxes, it has only a limited interest in private tort or contract litigation over the private duties involved in that collection. Mikulski, 501 F.3d at 570 (citing Grable, 545 U.S. at 319). Similarly, here, although the FAA certainly has an interest in enforcing its regulations governing federal airspace, its interest in applying The Sky Is Falling: Drone Regulation Update 73

80 those regulations in the context of a state law tort claim for trespass to chattels is limited or nonexistent. Moreover, [u]nlike [in] Grable,... this case will have no res judicata effect that would apply to the [FAA], no matter which court, federal or state, decides the case. Id. This is in contrast to Huerta v. Haughwout, a case filed in the District of Connecticut to which Boggs directed the Court s attention in his supplemental pleading. No. 3:16-CV-358, 2016 WL , at *1 (D. Conn. July 18, 2016); [DN 17.] In that case, the FAA sought judicial enforcement of administrative subpoenas it served against the defendants after they allegedly operated drones to fire a handgun and a flame-throwing contraption. Huerta, 2016 WL , at *1 2. The court explained the FAA had the authority to conduct an investigation on its own initiative either if a reasonable ground appears to believe that a person is violating the Federal Aviation Act (or one of the FAA s regulations) or if a reasonable ground appears about any question that may arise under the Act or the FAA s regulations. Id. at *2 (quoting 49 U.S.C (a)(2)). And, as FAA regulations prohibit operat[ing] an aircraft in a careless or reckless manner so as to endanger the life or property of another, the court agreed that the weaponized devices shown on the YouTube videos at least give rise to questions about possible danger to life or property. Id. (quoting 14 C.F.R ). The Court disagrees that this case highlights, as argued by Mr. Boggs and now the FAA that questions involving the regulation of the flight of unmanned aircraft should be resolved by Federal courts. [DN 17 at 2.] Rather, Huerta concerned the FAA s authority to exercise its subpoena power and its ability, pursuant to 29 U.S.C (b), to seek judicial enforcement of those subpoenas in federal court. Huerta, 2016 WL , at *2. That Court did not make the ultimate determination that the defendants unmanned 74 The Sky Is Falling: Drone Regulation Update

81 aircrafts were in fact subject to FAA regulations. In fact, the court expressed serious skepticism as to whether all unmanned aircrafts are subject to FAA regulation. Id. at *4 ( Were this a penalty enforcement action against the [defendants] for flying drones on their own property, I could see that the [defendants] have raised substantial questions about the scope of the FAA s regulatory enforcement authority. ) Rather, the court merely held that, [e]ven if a good faith argument might be made that the devices at issue here could fall outside the definitional scope of the term aircraft, the FAA has a legitimate purpose at the least to acquire more information by means of investigation.... Id. at *3. But even if Boggs is correct that his unmanned aircraft is subject to federal regulation, as the Court noted above, the fact remains that the FAA has not sought to enforce any such regulations in this case. Moreover, FAA regulations, at most, would constitute ancillary issues in this case, in which the heart of Boggs claim is one for damage to his unmanned aircraft under Kentucky state law. The second factor asks whether the federal issue, provided that one exists, is important. Mikulski, 501 F.3d at 570. If, as Boggs suggests, a state court is ultimately required to interpret or apply federal law, it will be for the limited purpose of determining whether his unmanned aircraft was on Merideth s property such that Meredith could have been privileged in damaging Boggs chattel. This question does not implicate any broader or more substantial issue, id. at 571, as Boggs argues. Moreover, even that determination does not necessarily even resolve all aspects of the present case, id., because, as Meredith points out, a state court would still have to address the other requirements for application of the privilege, such as the reasonable belief in the need to defend property and the reasonable infliction of harm to the chattel. [DN 16 at 5]. See Restatement (Second) of Torts 260 (1965) (The actor s conduct must be, The Sky Is Falling: Drone Regulation Update 75

82 or reasonably believed to be, necessary to protect the actor s land... and the harm inflicted [must] not [be] unreasonable as compared with the harm threatened. ). These are issues entirely within the purview of the state court in applying its law on privileges. Though Boggs argues that Congress and the FAA have been actively involved in modern drone regulation, [DN 15 at 10 11], the federal government s ability to regulate unmanned aircrafts will not [be] affected by the resolution of the dispute between these two parties. Mikulski, 501 F.3d at 570. Accordingly, the Court find[s] it more likely than not that this particular question is not particularly important to the federal government. Id. at 571. The third factor, whether a resolution of the federal issue is dispositive of the case, id. At 570, also weighs against a finding of substantiality. As the Court noted above, whether Boggs unmanned aircraft was on Merideth s property would be only one question in the analysis of whether Merideth s actions were privileged by a reasonable belief in the need to protect his land. For instance, regardless of what a state court determined in that regard, it could still be that the privilege does not apply because other required elements are not met. If the privilege does not apply, Boggs claim will then depend on whether he proved the elements of his prima facie case. Accordingly, a resolution of this issue may, but will not necessarily, decide Boggs trespass to chattels claim. Id. at 571. The fourth and final factor asks whether resolution of the federal question will control numerous other cases. Id. at 570. In other words, this factor looks to whether the federal issue is anomalous or isolated. Id. Neither the Court nor the parties are aware of any other pending suits involving the issue of whether an unmanned aircraft was operating on federal or personal property, [see DN 15 at 11], and it therefore it does not appear to the Court that this question will control many future cases. Boggs contends, however, that a 76 The Sky Is Falling: Drone Regulation Update

83 resolution of the issue will control and even prevent future cases, and will provide legal clarity to property owners and aircraft operators. [Id.] Even assuming, for argument s sake, that Boggs is correct, the Court nonetheless finds that, because the other three factors weigh against a finding that the federal issue is substantial, this factor is insufficient to tip the balance. In sum, while resolution of this question might be important to the parties, it lacks significance to the federal system as a whole, and therefore does not meet the substantiality requirement. 4. Capable of Resolution in Federal Court Without Disrupting the Federal- State Balance Approved by Congress It follows from an analysis of the foregoing three requirements that Grable s fourth requirement is also not met here. That requirement is concerned with the appropriate balance of federal and state judicial responsibilities. Gunn, 133 S. Ct. at 1068 (citing Grable, 545 U.S. at 314). As the Court held above, no substantial federal issue exists here. Though, as Boggs argues, the federal government has exclusive sovereignty of airspace of the United States, 49 U.S.C , that sovereignty is not a significant issue in the determination of whether Merideth intentionally intermeddled with Boggs chattel under Kentucky law. Ingram Trucking, 372 S.W.3d at 872 (quoting Restatement (Second) of Torts 217 (1965)). Accordingly, using a federal forum to resolve Boggs garden variety state tort claim is inappropriate, and the appropriate balance of federal and state judicial responsibilities favors dismissal of Boggs trespass to chattels claim for lack of federal question jurisdiction. Gunn, 133 S. Ct. at B. Boggs Request for Declaratory Judgment Boggs additionally seeks declaratory relief in this case pursuant to 28 U.S.C The Sky Is Falling: Drone Regulation Update 77

84 Specifically, Boggs seeks a declaration that his unmanned aircraft is an aircraft under federal law, that he was flying his unmanned aircraft in federal airspace, that the aircraft was therefore not flying on Merideth s property, that Boggs did not infringe on Merideth s reasonable expectation of privacy, and that property owners cannot shoot at unmanned aircrafts flying in federal airspace. [DN 1 at 7 8.] Boggs argues in his response that, after finding federal question jurisdiction is proper over Boggs trespass to chattels claim, the Court may exercise supplemental jurisdiction over Boggs claims for declaratory relief. [DN 15 at 13]; 28 U.S.C However, as the Court concluded above, it does not have federal question jurisdiction over Boggs trespass to chattels claim. Accordingly, the Court must determine whether some other mechanism provides it with jurisdiction over Boggs declaratory judgment action. See United States v. Field, 756 F.3d 911, 914 (6th Cir. 2014) ( Supplemental or pendant jurisdiction applies to claims asserted in a pending federal court case. (emphasis added)). But, as Merideth points out, the purpose of the Declaratory Judgment Act is to create a remedy for a preexisting right enforceable in federal court. It does not provide an independent basis for federal subject matter jurisdiction. Michigan Corr. Org. v. Michigan Dep t of Corr., 774 F.3d 895, 902 (6th Cir. 2014) (citing Toledo v. Jackson, 485 F.3d 836, 839 (6th Cir. 2007); Skelly Oil, 339 U.S. at ). Rather, in order for this Court to have subject matter jurisdiction over an action for declaratory judgment, it must be that, at the time of the lawsuit, one of the parties already could bring a coercive action that Congress authorized the federal courts to hear. Id. (citing Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843, 848 (2014) (Courts ask whether a coercive action brought by the declaratory judgment defendant The Sky Is Falling: Drone Regulation Update

85 would necessarily present a federal question. )); Franchise Tax Bd., 463 U.S. at 19 ( Federal courts have regularly taken original jurisdiction over declaratory judgment suits in which, if the declaratory judgment defendant brought a coercive action to enforce its rights, that suit would necessarily present a federal question. ) See also Chase Bank, 695 F.3d at 554 ( In the declaratory-judgment context, whether a federal question exists is determined by reference to a hypothetical non-declaratory suit (i.e., a suit for coercive relief) between the same parties; if a federal question would appear in the complaint in this hypothetical suit, federal jurisdiction exists over the declaratory-judgment action. ) Although Boggs identified this standard in his response, neither he nor Merideth applied the standard in their briefs to the Court. [See DN 14; DN 15 at 14; DN 16.] A party may bring a coercive action only when a private right of action authorizes the party to seek an immediately enforceable remedy like money damages or an injunction. Michigan Corr. Org., 774 F.3d at 902 (quoting Skelly Oil, 339 U.S. at 671). Accordingly, the relevant inquiry for the Court here is whether, if one of the parties brought a coercive action against the other if declaratory judgments were not available, a federal issue would inhere on the face of that hypothetical complaint. Other than the coercive action Boggs did bring, that is, his claim for trespass to chattels, over which the Court has determined it does not have federal question jurisdiction, Boggs has pointed to no other private right of action he could assert against Meredith for harm to his unmanned aircraft, and the Court can think of none. At most, Boggs cites in his complaint to 18 U.S.C. 32, a criminal statute which makes it a felony to willfully set[] fire to, damage[], destroy[], disable[], or wreck[] any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, The Sky Is Falling: Drone Regulation Update 79

86 overseas, or foreign air commerce. [DN 1 at 6 (citing 18 U.S.C. 32).] However, [a] party may bring a coercive action only when a private right of action authorizes the party to seek an immediately enforceable remedy like money damages or an injunction. Michigan Corr. Org., 774 F.3d at 902 (citing Skelly Oil, 339 U.S. at 671) (emphasis added). This criminal statute affords private citizens no such authorization. Therefore, any coercive action Boggs could bring cannot serve as the basis for federal question jurisdiction over his declaratory judgment action. With regard to potential coercive actions that Merideth could bring, two causes of action appear plausible to the Court based on the declaratory relief Boggs seeks. These are invasion of privacy and trespass, both tort claims under Kentucky law. 1 Under Kentucky law, the right of privacy can be invaded by (a) unreasonable intrusion upon the seclusion of another...; or (b) appropriation of the other s name or likeness...; or (c) unreasonable publicity given to the other s private life..., or (d) publicity that unreasonably places the other in a false light before the public... McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 887 (Ky. 1981) (quoting the Restatement (Second) of Torts (1976)). Trespass [under Kentucky law] is an intended or negligent encroachment onto another s property that is not privileged. Dickens v. Oxy Vinyls, LP, 631 F. Supp. 2d 859, 864 (W.D. Ky. 2009) (citing Rockwell Int l Corp. v. Wilhite, 143 S.W.3d 604, (Ky. Ct. App. 2003)). Specifically, trespass focuses on an object or thing entering a person s property and interfering with his or her possession or control. Id. (citing Bartman v. Shobe, 353 S.W.2d 550, 555 (Ky. 1962)). But whether or not either of these claims necessarily raises a disputed federal issue, for largely the same reasons as Boggs trespass to chattels claim, these hypothetical invasion of privacy and trespass claims fail Grable s 80 The Sky Is Falling: Drone Regulation Update

87 significant federal issues analysis for lack of substantiality. Specifically, as with Boggs trespass to chattels claim, whether Boggs aircraft was on Merideth s property or federal property is not significant to the federal system as a whole. Gunn, 133 S. Ct. at Again, as the Court already discussed above, the FAA is not involved in this case, nor is the Court convinced that a federal question, if one exists in these hypothetical actions, is important to the federal government. See Mikulski, 501 F.3d at 570. Next, a determination of the property on which Boggs was flying his unmanned aircraft would not be dispositive of an invasion of privacy or trespass claim. See id. For instance, if a court determined that Boggs aircraft was flying on Merideth s property, those claims would still require a determination of expectation of privacy standard. Ferguson v. City of Charleston, 532 U.S. 67, 76 (2001). No government actor is involved in this case. Whether any such intrusion was unreasonable or interfered with Merideth s possession or control of his land. Finally, there is again no evidence that resolution of this issue would control other cases. Id. Unlike in Grable, the hypothetical Plaintiff here, Merideth, would not premise his state law invasion of privacy or trespass claims on a violation of federal law. Grable, 545 U.S. at 314. Rather, these hypothetical claims would sound in garden-variety state tort law. Hampton, 683 F.3d at 712. Moreover, the law is clear that [t]he mere presence of a federal issue in a state law cause of action does not automatically confer federal question jurisdiction, either originally or on removal. Mikulski, 501 F.3d at 565. Therefore, even if a potential federal issue here is significant to the particular parties in the immediate suit, Gunn, 133 S. Ct. at 1066, it does not satisfy Grable s requirement that the issue be significant to the overall federal system. Accordingly, here, [n]ot one of these potential sources of rights... The Sky Is Falling: Drone Regulation Update 81

88 supplies the requisite jurisdiction for this action, Michigan Corr. Org., 774 F.3d at 902, and therefore federal question jurisdiction over Boggs claim for declaratory judgment also does not exist. CONCLUSION For the foregoing reasons, Defendant s motion to dismiss for lack of subject matter jurisdiction is GRANTED. The Court will enter a separate Order and Judgment consistent with this Memorandum Opinion. /s/ Thomas B. Russell. Sr. Judge 3/21/2017. G. Private Property Protections for Low Altitude Airspace. See State Law Material. 14 CFR Operation over human beings. No person may operate a small unmanned aircraft over a human being unless that human being is: (a) Directly participating in the operation of the small unmanned aircraft; or (b) Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft. Subject to this rule, and the prohibition against operating in other than Class G airspace, without prior FAA permission, the FAA s current UAS regulations do not have a minimum altitude for flying over private property. H. What Constitutes Aerial Trespass? United States v. Causby, 328 U.S. 256 (1946) rejected the concept. Thomas and Tinie Causby owned a few acres of land near Greensboro, North Carolina on which they farmed chickens. It happened to be underneath one of the glide paths to a municipal airport, so planes passed roughly 83 feet above his property. The planes -- old-school bombers and fighters in many cases -- scared the wits out of his chickens. They literally killed themselves flying off the walls in fright. "As many as six to ten of their chickens were killed in one day by 82 The Sky Is Falling: Drone Regulation Update

89 flying into the walls from fright. The total chickens lost in that manner was about 150," the Court noted. Production also fell off. The result was the destruction of the use of the property as a commercial chicken farm." What resulted from this set of circumstances, though, was a triumph for aviators. The Court affirmed that "the air above the minimum safe altitude of flight... is a public highway and part of the public domain." The Causby s claims were rejected. The Sky Is Falling: Drone Regulation Update 83

90 Page U.S. 84 (1962) 82 S.Ct. 531, 7 L.Ed.2d 585 Griggs v. Allegheny County No. 81 United States Supreme Court March 5, 1962 Argued January 16, 1962 CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA William A. Blair, Pittsburgh, Pa., for petitioner. Maurice Louik, Pittsburgh, Pa., for respondent. Syllabus Allegheny County owns and maintains the Greater Pittsburgh Airport at a site it acquired to provide airport facilities under the Federal Airport Act. In one approach zone or path of glide, the pattern of flight established by the Civil Aeronautics Administrator for aircraft landing at and departing from the Airport requires aircraft to fly regularly and frequently at very low altitudes over petitioner's residential property. The resulting noise, vibrations and danger forced petitioner and his family to move from their home. Held: the County has taken an air easement over petitioner's property for which it must pay just compensation as required by the Fourteenth Amendment. Pp Pa. 411, 168 A.2d 123, reversed. DOUGLAS, J., lead opinion MR. JUSTICE DOUGLAS delivered the opinion of the Court. This case is here on a petition for a writ of certiorari to the Supreme Court of Pennsylvania which we granted (366 U.S. 943) because its decision (402 Pa. 411, 168 A.2d 123) seemed to be in conflict with United States v. Causby, 328 U.S The question is whether respondent Page 85 has taken an air easement over petitioner's property for which it must pay just compensation as required by the Fourteenth Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 241. The Court of Common Pleas, pursuant to customary Pennsylvania procedure, appointed a Board of Viewers to determine whether there had been a "taking," and, if so, the amount of compensation due. The Board of Viewers met upon the property; it held a hearing, and in its report found that there had been a "taking" by respondent of an air easement over petitioner's property and that the compensation payable (damages suffered) was $12,690. The Court of Common Pleas dismissed the exceptions of each party to the Board's report. On appeal, the Supreme Court of Pennsylvania decided, by a divided vote, that if [82 S.Ct. 532] there were a "taking" in the constitutional sense, the respondent was not liable. Respondent owns and maintains the Greater Pittsburgh Airport on land which it purchased to provide airport and air-transport facilities. The airport was designed for public use in conformity with the rules and regulations of the Civil Aeronautics Administration within the scope of the National Airport Plan provided for in 49 U.S.C et seq. By this Act, the federal Administrator is authorized and directed to prepare and continually revise a "national plan for the development of public airports." 1102(a). For this purpose, he is authorized to make grants to "sponsors" for airport development. 1103, Provision is made for apportionment of grants for this purpose among the States The applications for projects must follow the standards prescribed by the Administrator It is provided in 1108(d) that: No project shall be approved by the Administrator with respect to any airport unless a public agency holds good title, satisfactory to the Administrator, to the landing area of such airport or the site therefor, or gives assurance satisfactory Page 86 to the Administrator that such title will be acquired. The United States agrees to share from 50% to 75% of the "allowable project costs," depending, so far as material here, on the class and location of the airport Allowable costs payable by the Federal Government include "costs of acquiring land or interests therein or easements through or other interests in air space...." 1112(a)(2). Respondent executed three agreements with the Administrator of Civil Aeronautics in which it agreed, among other things, to abide by and adhere to the Rules and Regulations of CAA and to "maintain a master plan of the airport," including "approach areas." It was provided that the "airport approach standards to be followed in this connection shall be those established by the Administrator"; and it was also agreed that respondent "will acquire such easements or other interests in lands and air space as may be necessary to perform the covenants of this paragraph." The "master plan" laid out and submitted by respondent included the required "approach areas"; and that "master plan" was approved. One "approach area" was to the northeast runway. As designed and approved, it passed over petitioner's home, which is 3,250 feet from the end of that runway. The elevation at the end of that runway is 1, feet above sea level; the door sill at petitioner's residence, 1, feet; the top of petitioner's 84 The Sky Is Falling: Drone Regulation Update

91 chimney, 1, feet. The slope gradient of the approach area is as 40 is to 3,250 feet, or 81 feet, which leaves a clearance of feet between the bottom of the glide angle and petitioner's chimney. The airlines that use the airport are lessees of respondent, and the leases give them, among other things, the right "to land" and "take off." No flights were in violation of the regulations of CAA, nor were any flights Page 87 lower than necessary for a safe landing or take-off. The planes taking off from the northeast runway observed regular flight patterns ranging from 30 feet to 300 feet over petitioner's residence; and, on let-down, they were within 53 feet to 153 feet. On take-off, the noise of the planes is comparable "to the noise of a riveting machine or steam hammer." On the let-down, the planes make a noise comparable "to that of a noisy factory." The Board of Viewers found that The low altitude flights over plaintiff's property caused the plaintiff and occupants of his property to become nervous and distraught, eventually causing their removal therefrom as undesirable and unbearable for their residential use. Judge Bell, dissenting below, accurately [82 S.Ct. 533] summarized the uncontroverted facts as follows: Regular and almost continuous daily flights, often several minutes apart, have been made by a number of airlines directly over and very, very close to plaintiff's residence. During these flights, it was often impossible for people in the house to converse or to talk on the telephone. The plaintiff and the members of his household (depending on the flight, which, in turn, sometimes depended on the wind) were frequently unable to sleep, even with ear plugs and sleeping pills; they would frequently be awakened by the flight and the noise of the planes; the windows of their home would frequently rattle, and, at times, plaster fell down from the walls and ceilings; their health was affected and impaired, and they sometimes were compelled to sleep elsewhere. Moreover, their house was so close to the runways or path of glide that, as the spokesman for the members of the Airlines Pilot Association admitted, "[i]f we had engine failure, we would have no course but to plow into your house." 402 Pa. 411, 422, 168 A.2d 123, Page 88 We start with United States v. Causby, supra, which held that the United States, by low flights of its military planes over a chicken farm, made the property unusable for that purpose, and that therefore there had been a "taking", in the constitutional sense, of an air easement for which compensation must be made. At the time of the Causby case, Congress had placed the navigable airspace in the public domain, defining it as "airspace above the minimum safe altitudes of flight prescribed" by the CAA. 44 Stat We held that the path of the glide or flight for landing or taking off was not the downward reach of the "navigable airspace." 328 U.S. at 264. Following the decision in the Causby case, Congress redefined "navigable airspace" to mean airspace above the minimum altitudes of flight prescribed by regulations issued under this chapter, and shall include airspace needed to insure safety in take-off and landing of aircraft. 72 Stat. 739, 49 U.S.C. 1301(24). By the present regulations,[1] the "minimum safe altitudes" within the meaning of the statute are defined, so far as relevant here, as heights of 500 feet or 1,000 feet, "[e]xcept where necessary for takeoff or landing." But, as we said in the Causby Page 89 case, the use of land presupposes the use of some of the airspace above it. 328 U.S. at 264. Otherwise, no home could be built, no tree planted, no fence constructed, no chimney erected. An invasion of the "superadjacent airspace" will often "affect the use of the surface of the land itself." 328 U.S. at 265. It is argued that, though there was a "taking," someone other than respondent was the taker -- the airlines or the CAA acting as an authorized representative [82 S.Ct. 534] of the United States. We think, however, that respondent, which was the promoter, owner, and lessor[2] of the airport, was, in these circumstances, the one who took the air easement in the constitutional sense. Respondent decided, subject to the approval of the CAA, where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed. The Federal Government takes nothing; it is the local authority which decides to build an airport vel non, and where it is to be located. We see no difference between its responsibility for the air easements necessary for operation of the airport and its responsibility for the land on which the runways were built. Nor did the Congress, when it designed the legislation for a National Airport Plan. For, as we have already noted, Congress provided in 49 U.S.C for the payment to the owners of airports, whose plans were approved by the Administrator, of a share of "the allowable project costs" including the "costs of acquiring land or interests therein or easements through or other interests in air space." 1112(a)(2). A county that designed and constructed a bridge would not have a usable facility unless it had at least an easement over the land necessary for the Page 90 approaches to the bridge. Why should one who designs, constructs, and uses an airport be in a more favorable position so far as the Fourteenth Amendment is concerned? That the instant "taking" was "for public use" is not debatable. For respondent agreed with the CAA that it would operate the airport "for the use and benefit of the public," that it would operate it "on fair and reasonable terms, and without unjust discrimination," and that it would not allow any carrier to acquire "any exclusive right" to its use. The glide path for the northeast runway is as necessary for the operation of the airport as is a surface right of way for operation of a bridge, or as is the land for the operation of a dam. See United States v. Virginia Electric Co., 365 U.S. 624, 630. As stated by the Supreme Court of Washington in Ackerman v. Port of Seattle, 55 Wash.2d 400, 401, 413, 348 P.2d 664, 671, "... an adequate approach way is as necessary a part of an airport as is the ground on which the airstrip, itself, is constructed...." The Sky Is Falling: Drone Regulation Update 85

92 Without the "approach areas," an airport is indeed not operable. Respondent, in designing it, had to acquire some private property. Our conclusion is that, by constitutional standards, it did not acquire enough. Reversed. BLACK, J., dissenting MR. JUSTICE BLACK, with whom MR. JUSTICE FRANKFURTER concurs, dissenting. In United States v. Causby,[1] the Court held that, by flying its military aircraft frequently on low landing and takeoff flights over Causby's chicken farm, the United States had so disturbed the peace of the occupants and so frightened the chickens that it had "taken" a flight easement from Causby for which it was required to pay "just compensation" under the Fifth Amendment. Today, the Page 91 Court holds that similar low landing and take-off flights, making petitioner Griggs' property, "undesirable and unbearable for... residential use," constitute a "taking" of airspace over Griggs' property -- not, however, by the owner and operator of the planes, as in Causby, but by Allegheny County, the owner and operator [82 S.Ct. 535] of the Greater Pittsburgh Airport, to and from which the planes fly. Although I dissented in Causby because I did not believe that the individual aircraft flights "took" property in the constitutional sense merely by going over it, and because I believed that the complexities of adjusting atmospheric property rights to the air age could best be handled by Congress, I agree with the Court that the noise, vibrations and fear caused by constant and extremely low overflights in this case have so interfered with the use and enjoyment of petitioner's property as to amount to a "taking" of it under the Causby holding. I cannot agree, however, that it was the County of Allegheny that did the "taking." I think that the United States, not the Greater Pittsburgh Airport, has "taken" the airspace over Griggs' property necessary for flight.[2] While the County did design the plan for the airport, including the arrangement of its takeoff and approach areas, in order to comply with federal requirements, it did so under the supervision of and subject to the approval of the Civil Aeronautics Administrator of the United States.[3] Congress has, over the years, adopted a comprehensive plan for national and international air commerce, regulating in minute detail virtually every aspect of air transit -- from construction and planning of ground facilities to Page 92 safety and methods of flight operations.[4] As part of this overall scheme of development, Congress, in 1938, declared that the United States has "complete and exclusive national sovereignty in the air space above the United States,"[5] and that every citizen has "a public right of freedom of transit in air commerce through the navigable air space of the United States."[6] Although, in Causby, the Court held that, under the then existing laws and regulations, the airspace used in landing and take-off was not part of the "navigable airspace" as to which all have a right of free transit, Congress has since, in 1958, enacted a new law, as part of a regulatory scheme even more comprehensive than those before it, making it clear that the "airspace needed to insure safety in take-off and landing of aircraft" is "navigable airspace."[7] Thus, Congress has not only appropriated the airspace necessary for planes to fly at high altitudes throughout the country, but has also provided the low altitude airspace essential for those same planes to approach and take off from airports. These airspaces are so much under the control of the Federal Government that every take-off from, and every landing at Page 93 airports such as the Greater Pittsburgh [82 S.Ct. 536] Airport is made under the direct signal and supervisory control of some federal agent.[8] In reaching its conclusion, however, the Court emphasizes the fact that highway bridges require approaches. Of course they do. But if the United States Highway Department purchases the approaches to a bridge, the bridge owner need not. The same is true where Congress has, as here, appropriated the airspace necessary to approach the Pittsburgh airport as well as all the other airports in the country. Despite this, however, the Court somehow finds a congressional intent to shift the burden of acquiring flight airspace to the local communities in 49 U.S.C. 1112, which authorizes reimbursement to local communities for "necessary" acquisitions of "easements through or other interests in air space." But this is no different from the bridge approach argument. Merely because local communities might eventually be reimbursed for the acquisition of necessary easements does not mean that local communities must acquire easements that the United States has already acquired. And where Congress has already declared airspace free to all -- a fact not denied by the Court -- pretty clearly it need not again be acquired by an airport. The "necessary" easements for which Congress authorized reimbursement in 1112 were those "easements through or other interests in air space" necessary for the clearing and protecting of "aerial approaches" from physical "airport hazards"[9] -- a duty explicitly placed on the local communities by the statute ( 1110) and by their contract with the Government. Page 94 There is no such duty on the local community to acquire flight airspace. Having taken the airspace over Griggs' private property for a public use, it is the United States which owes just compensation. The construction of the Greater Pittsburgh Airport was financed in large part by funds supplied by the United States as part of its plan to induce localities like Allegheny County to assist in setting up a national and international air transportation system. The Court's imposition of liability on Allegheny County, however, goes a long way toward defeating that plan because of the greatly increased financial burdens (how great one can only guess) which will hereafter fall on all the cities and counties which, until now have given or may hereafter give support to the national program. I do not believe that Congress ever intended any such frustration of its own purpose. Nor do I believe that Congress intended the wholly inequitable and unjust saddling of the entire financial burden of this part of the national program on the people of local communities like Allegheny County. The planes that take off and land at the Greater Pittsburgh Airport wind their rapid way through space not for the peculiar benefit of the citizens of Allegheny County, but as part 86 The Sky Is Falling: Drone Regulation Update

93 of a great, reliable transportation system of immense advantage to the whole Nation in time of peace and war. Just as it would be unfair to require petitioner and others who suffer serious and peculiar injuries by reason of these transportation flights to bear an unfair proportion of the burdens of air commerce, so it would be unfair to make Allegheny County bear expenses wholly out of proportion to the advantages it can receive from the national transportation system. I can see no justification at [82 S.Ct. 537] all for throwing this monkey wrench into Congress' finely tuned national transit mechanism. I would affirm the state court's judgment holding that the County of Allegheny has not "taken" petitioner's property Notes: [1] Regulation 60.17, entitled "Minimum safe altitudes," provides: Except when necessary for take-off or landing, no person shall operate an aircraft below the following altitudes: (a) Anywhere. An altitude which will permit, in the event of the failure of a power unit, an emergency landing without undue hazard to persons or property on the surface; (b) Over congested areas. Over the congested areas of cities, towns or settlements, or over an open-air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet from the aircraft.... (c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In such event, the aircraft shall not be operated closer than 500 feet to any person, vessel, vehicle, or structure.... (Emphasis supplied except in catch lines.) 14 C.F.R [2] In circumstances more opaque than this, we have held lessors to their constitutional obligations. See Burton v. Wilmington Parking Auth., 365 U.S [1] 328 U.S [2] We are not called on to pass on any question of "taking" under the Pennsylvania Constitution or laws. [3] 60 Stat , as amended, 49 U.S.C. 1108, The duties of the Civil Aeronautics Administrator have since been transferred to the Federal Aviation Agency Administrator. 72 Stat [4] The Federal Aviation Agency Administrator is directed to prepare and maintain a "national plan for the development of public airports in the United States," taking into account the needs of both air commerce and private flying, the probable technological developments in the science of aeronautics, [and] the probable growth and requirements of civil aeronautics. 49 U.S.C The detailed features of the federal regulatory and development scheme are found in 49 U.S.C. cc. 14 (Federal aid for Public Airport Development), 15 (International Aviation Facilities) and 20 (Federal Aviation Program). [5] 52 Stat. 1028, 49 U.S.C [6] 52 Stat. 980, 49 U.S.C [7] Section 101(24) of the Federal Aviation Act of 1958 provides: "Navigable airspace" means airspace above the minimum altitudes of flight prescribed by regulations issued under this Act, and shall include airspace needed to insure safety in take-off and landing of aircraft. 72 Stat. 739, 49 U.S.C. 1301(24). [8] 14 CFR The Administrator of the Federal Aviation Agency is directed to control "the use of the navigable airspace of the United States." 49 U.S.C. 1303(c). [9] The term "airport hazard" means any structure or object of natural growth... or any use of land... which obstructs the air space... or is otherwise hazardous to... landing or taking off of aircraft. 49 U.S.C. 1101(a)(4) The Sky Is Falling: Drone Regulation Update 87

94 88 The Sky Is Falling: Drone Regulation Update

95 OSBA Part III: State and Local Laws, Regulations, Zoning Codes A. State and local Laws 1. Laws traditionally related to state and local police power includingland use, zoning, privacy, trespass, and law enforcement operations generally are not subject to FAA regulations 1. Ex. Requirement for police to obtain a warrant prior to using a UAS for surveillance 2. Ex. Specifying that UAS may not be used for voyeurism 3. Ex. Prohibitions on using UAS for hunting or fishing, or to interfere with or harass an individual who is hunting or fishing 4. Ex. Prohibitions on attaching firearms or similar weapons to UAS 5. In 2015, only 20 states, passed 26 pieces of drone legislation and 5 states adopted resolutions which means the states agreed to form a committee to think about them 6. State Drone laws fall into three categories 1. Protecting the Privacy of individuals 2. Prohibiting drone use for hunting 3. Limiting drone use by law enforcement 7. The more laws established locally the more confusing drone law becomes nationally and that's what drone pilots fear will happen 8. For example, drone delivery services would be very difficult if each state had their own set of laws that's different from another state 9. Local drone laws 1. Cities have restrictions on where you can fly 2. Cities and towns enact special penalty for peeping tom use or trespassing 3. Tourist destinations tend to prohibit drones over parades and festivals localities in 31 states have enacted drone rules in recent years 11. Number of these local and state laws may contravene federal authority which could result in legal conflict 12. Zoning example 1. Green Zone- open droning, wide open free zone with little restrictions, lots of opportunity and flexibility 2. Red Zone- For example if there was a football stadium it would be recognized as a zero public drone area. In that space imagine private licensing options for droned cameras and advertising initiatives by the stadium and partners. Unaffiliated individuals should not have the right to use their drone in that area. The Sky Is Falling: Drone Regulation Update 89

96 3. Yellow and Orange Zones- These zones are the limited and restrictive areas. These areas have their own rules that change according to the day, time, season, or event. CASE STUDY/CONCEPT EXPLORATION - CHICAGO 90 The Sky Is Falling: Drone Regulation Update