FAA Increasing Enforcement Efforts Targeting Commercial Drone Use

So reports Kathleen Kirby at Weily Rein's media law blog. From the blog:

The Federal Aviation Administration (FAA) has recently stepped up enforcement efforts against Unmanned Aircraft Systems (UAS) operators engaged in unauthorized “commercial” operations. The FAA’s current regulatory scheme permits hobby and recreational use of UAS but requires commercial UAS users to receive FAA authorization before beginning operations. Two recent regional office enforcement actions against UAS hobbyists (prompted by the content on their respective websites) reaffirms the FAA’s commitment to preventing unapproved UAS operations and signals that the agency may be adopting a broad view of what constitutes “commercial” operation.

These two new instances of enforcement include a notification of a potential violation to a drone operator who "advertises his UAS aerial photography services," and a notice of a potential violation to a drone operator who posts drone-shot video to YouTube, where ads are displayed before the videos play. Coverage of the first enforcement action is available here. Coverage of the second enforcement action is available here.

I noted a while back that people who use drone photography for architectural or landscaping purposes, and who advertise their photography services are running a risk of violating the FAA's current ban on the use of drones for commercial purposes. Drones may well be useful, and the FAA has proposed outlines for potential new regulations governing the commercial use of drones. But at this point, those rules are in the early stages of development, and the unauthorized use of drones for commercial purposes may land drone operators in hot water. For this reason, I am not particularly surprised by the first enforcement action.

But the second enforcement action against drone footage on YouTube is notable in its potential breadth. I can see how using a drone to shoot footage that is later posted online and monetized through ads may be construed as being a commercial use of the drone. But in light of existing, widespread use of drones to shoot interesting and often breathtaking footage, this type of enforcement action -- if uniformly applied -- could lead to troubles for a large number of drone enthusiasts, and could result in a drop in drone-shot photography and footage that is shared online.

FAA Releases Notice of Proposed Rulemaking for Drone Regulations

So reports the Washington Post:

Thousands of businesses could receive clearance to fly drones two years from now under proposed rules that the Federal Aviation Administrationunveiled Sunday, a landmark step that will make automated flight more commonplace in the nation’s skies. 

Meanwhile, the White House on Sunday issued presidential directive that will require federal agencies for the first time to publicly disclose where they fly drones in the United States and what they do with the torrents of data collected from aerial surveillance. 

Together, the FAA regulations and the White House order provide some basic rules of the sky that will govern who can fly drones in the United States and under what conditions, while attempting to prevent aviation disasters and unrestrained government surveillance.

The notice of proposed rulemaking is here. A list summarizing the proposals can be found here. These rules would include requirements that drones not be operated recklessly, that drones be operated within the line of sight of the person controlling the drone, and that people who operate drones obtain licenses.

Notably, the second to last proposal is that "Proposed rule would not apply to model aircraft that satisfy all of the criteria specified in Section 336 of Public Law 112-95." Here is the text of that section:

(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—

(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)).

(b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means 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.

This suggests that the drone-licensing and other requirements suggested in the notice of proposed rulemaking would not apply to hobbyist drone use.

While hobbyist use may not be affected very much if this proposal remains, these regulations would throw a wrench into the plans of companies like Amazon that have suggested that they may use drone technology to make deliveries. Prohibiting the operation of drones out of the sight of the people controlling drones would render these business models implausible. Other types of drone use like land and real estate surveys may become more widespread under these rules.

It is good to see that the FAA has finally released these proposals. I suspect that there will be a great deal of debate in days to come over these rules, and I look forward to seeing what rules end up being adopted once comments on these proposals are submitted.

FAA: Superbowl Stadium is a "No Drone Zone"

I just came across this video released by the Federal Aviation Administration (FAA) that declares the Superbowl Stadium a "No Drone Zone."



Frank Bi at Forbes writes about the video here, and notes that the FAA has declared a 10-mile no-fly zone around the Superbowl stadium. This ban applies to unmanned aircraft systems, and therefore applies to drones.

This sort of public service announcement is an indicator of the rise in drone use and popularity. And I think that while it may come across as a bit corny, it sends the right message, since people may do many stupid things with drones near stadiums.

NTSB Rules that FAA Regulations Apply to Drones

The National Transportation Safety Board (NTSB) ruled yesterday that the Federal Aviation Administration's (FAA's) aircraft regulations apply to drones. Bill Chappell from NPR has the story here. Additional reporting from The Hill is available here. The full NTSB ruling is available here.

Specifically, the NTSB ruled that a regulation prohibiting the reckless operation of aircraft (14 C.F.R. § 91.13(a)) applies to the operation of drones -- despite the FAA's release of circulars and other notices specifically discussing model aircraft operation.

This opinion overturns an earlier administrative law judge's ruling that the FAA's regulations do not apply to drones. That earlier decision is available here. I blogged about the previous decision here.

From the NTSB's ruling:

[T]he 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 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. 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. (footnotes omitted).

And as to whether the FAA's 1981 Advisory Circular on "model aircraft" operation exclude these aircraft from other regulations:

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.

While drones are generally quite different from traditional aircraft, the NTSB's conclusion seems correct, given the broad language of the regulation and the non-exclusive language of the advisory circular.

The NTSB cites statutory and regulatory definitions of "aircraft" as "any contrivance invented, used, or designed to navigate, or fly in, the air" (49 USC § 40102(a)(6)) and as "a device that is used or intended to be used for flight in the air." (14 C.F.R. § 1.1). While this language covers a great many devices (possibly even including paper airplanes or "toy balsa wood gliders" as the administrative law judge's ruling warns), the language is nevertheless clear.

It is worth adding that even though I think the NTSB's reading is correct, that does not mean that I necessarily agree that regulations applying to full-sized, manned aircraft ought to be applied to drones. I think that the administrative law judge was correct to note the broad definition of "aircraft" for purposes of federal law and regulation -- but I don't think that the law's unintuitive breadth is a sufficient reason to disregard the plain meaning of the text.

The NTSB's ruling will almost certainly accentuate the need for specialized drone regulations. And it may have a secondary effect of prompting awareness and criticism of how far a broadly-worded federal law may extend.

FAA Criminalizes Flying Drones Over Stadiums During Games

So reports the Associated Press. From the article:

Operators who fly drones or model planes near or over large sports stadiums and auto racetracks are breaking the law and can be fined and imprisoned for up to a year, the Federal Aviation Administration warned in a notice posted on the agency's website. 

The notice marks the first time the FAA has sought to criminalize the use of drones and model planes, attorneys representing drone users said. 

The notice, posted on Monday, updates a previous notice to pilots warning that aircraft are prohibited from flying below 3,000 feet and within 3 miles of a Major League Baseball, National Football League and NCAA Division I college football game for national security reasons. The NSCAR Sprint Cup, Indy Car and Champ series auto races are also included. The prohibition extends from one hour before the events until one hour after. 

The original version of the notice was issued shortly after the Sept. 11, 2001, terrorist attacks and has been previously updated. The original and most recent prior version of the notice, issued in 2009, make no mention of drones or other remotely controlled aircraft.

The article points out that officials and sports teams are concerned that drones could be used to film games and that drones could crash into players or spectators. The article quotes Brendan Schulman, who argues that this law would not add any meaningful protections against terrorism.

I think that this law is sensible, and I think that it is important to acknowledge the law's limits before rushing to criticize it. The law only applies to stadiums that seat 30,000 people or more, and Schulman states that this covers about 150 stadiums in the United States. Moreover, the law only prohibits drone use near sports stadiums during sport events, and for a one hour window before and after the events. That means that even stupid drone use like this would not be covered by the law, since that drone use did not take place during (or right before or after) a game.

Additionally, while I agree with Schulman that this law might not do much to prevent terrorist activities, I think that the risk of drones falling and striking spectators or players warrants this restriction. Any fan of Iowa football will tell you that football players already have enough to worry about when it comes to mechanical devices falling onto the field. And with the dense traffic that precedes and follows sport events, and the large crowds of people present during these events, the risk of a falling drone crashing into somebody is multiplied.

Obama's Upcoming Executive Order on Drone Privacy: Some Thoughts on Preemption

Politico reports:

President Barack Obama plans to issue an executive order to develop privacy guidelines for commercial drones operating in U.S. airspace, POLITICO has learned. 

The order would put the National Telecommunications and Information Administration, an arm of the Commerce Department, in charge of developing the guidelines. NTIA would bring together companies and consumer groups to hammer out a series of voluntary best practices for unmanned aerial vehicles.

The Federal Aviation Administration (FAA) has been working on drafting rules and regulations governing the safe use of domestic drones. But Politico reports that critics are concerned with the agency's failure to draft rules governing drone surveillance.

While there are no federal laws or rules that restrict the use of drones to invade other people's privacy, several states have enacted or proposed legislation that would restrict intrusive drone use by private parties. Idaho, Texas, and Wisconsin have passed laws that restrict private drone use that infringes on the privacy of others. A law that would criminalize drone use that intrudes on the privacy of others has been proposed in California. Tennessee has passed legislation that restricts private actors from using drones to interfere with hunters. Other states, including Iowa, Indiana, and Florida have passed laws that restrict government use of drones.

While there are not many details available about the contents of the executive order, Politico reports that the NTIA would not enact rules that would restrict government drone use. While this would leave the majority of state drone laws unaffected, President Obama's order and the ensuing federal regulations could have a substantial impact, preemptive on state laws that concern the use of drones to invade privacy.

You May Not Be Spying With a Drone -- But You Might Still be Breaking the Law

There has been a lot of recent news coverage over a Seattle woman's report that a drone flying outside of her window was spying on her. At Forbes, Gregory McNeal discusses this story and other stories about drones. McNeal argues that a lot of news coverage of drones is overly dramatic and even misleadingly alarmist. From McNeal's article:

Last month a Seattle woman said that a drone made her nervous because it was flying outside of her window. Early media reports called the device a flying “Peeping Tom.” Soon afterwards, national reports exploded with more than one hundred stories, focused mostly on the news media’s construction of a privacy violation. Now, the photograph of the flight has been provided to Forbes, and it shows that the company flying the drone was merely making a panoramic photograph of the city skyline. The arc of this story — a buzzworthy first report, that later ends up being false— is emblematic of many drone related stories which threaten to jeopardize the nascent industry. 

The Seattle non-incident gained national media attention after the woman called her building’s concierge to complain that the drone may have been used to look into her apartment. What received less prominent national media attention was the statement of Joe Vaughn, founder of startup company Skyris Imaging. Vaughn said that he and the pilot of the drone were shooting a panoramic view of the city for a client who was planning to build a 20-story office tower near the woman’s apartment building. 

. . . 

Vaughn demonstrated he takes concerns about safety and privacy seriously. He contacted the police to report what the company was doing, and said he had talked by phone with the woman who complained. ”I called her and let her know I’m sorry she was startled but we were doing an honest job, we were not peeping toms. There were no images taken at all of this
woman.”

. . .

The Seattle story, like many other drone related stories reveals a pattern in coverage about these new devices. Journalists cover a story, featuring sensational allegations in the lede and introductory paragraphs, only to have the “but it wasn’t true” paragraph buried later in the story.

I agree that some of the coverage about the danger of drones and how they may violate privacy has been over-hyped. That tends to be par for the course with Internet coverage of just about everything these days.

But I also think that other coverage of drone use has been misleadingly optimistic towards harmful use of drones. Take, for example, an instance where a drone shot footage while it flew through a fireworks show. Many commentators marveled at how beautiful this was. But only a few people (including, interestingly, McNeal) pointed out that this drone use was highly dangerous and almost certainly illegal.

When it comes to discussions of drones and opinions on whether they are dangerous or harmless, it is easy to find coverage of identical events that is skewed in the direction of either opinion.

But there is a more specific point that I want to make in this post about the Seattle incident in particular. Joe Vaughn, the owner of the drone, claimed that he was not violating anybody's privacy because he was using the drone to survey a potential site for an office building. Visiting Vaughn's website reveals that Vaughn offers his services in a number of fields, including surveying land for real estate and agriculture, and for shooting marketing imagery.

While Vaughn's drone use may not be for the nefarious purpose of spying on somebody, in stating that he was using his drone for his real estate surveying business, Vaughn may have inadvertently admitted that he was using his drone illegally. The Federal Aviation Administration (FAA) bans the use of drones for commercial purposes unless a business has applied for a permit to use the drone. And since the FAA's first authorization of such a permit only happened back in June, I am fairly certain that Vaughn is not flying his drone with federal authorization.

While Vaughn may not have been spying with his drone, he may have just admitted that he was using his drone illegally. Businesses that use drones for real estate surveying tend to veer dangerously close to the line that separates legal, hobbyist use of drones from potentially prohibited commercial use. And while there is certainly room for debate over whether the FAA's restrictions have the force of law, I think it is ironic that Vaughn's justification for his drone use may end up being an admission of illegal activity.

Texas Man Inadvertently Demonstrates Wrong Ways to Use Drones

Several local news sources report on a Texas man who lost a drone on the roof of AT&T Stadium in Arlington, Texas. KHOU.com and Fox 4 both report on the story. Most of their information comes from this video that the drone operator posted:

At around 47 seconds into the video, the man says that he lost another one of his drones on the roof of the stadium because he let the stadium get in between him and the drone. This resulted in his losing the signal, causing the drone to fall onto the roof or balcony (at the time of the video, the man isn't sure where the drone is). Workers at the stadium later returned the man's drone from the roof.

This gets us to our first way to get in trouble while operating a drone: fly the drone in such a manner that you lose its signal, causing it to fall from the sky in a populated area. Nobody was hurt by this man's drone in this incident. But as his video demonstrates, he is willing to fly his drone carelessly in populated areas, and it is only a matter of time before he ends up hurting a bystander. Moreover, the man's tendency to fly his drones in highly populated areas may get him into trouble with the Federal Aviation Administration (FAA). The FAA, in an advisory circular on model aircraft use urges aircraft operators to avoid flying model aircraft in "populated areas." The FAA seems to imply here and here that this circular applies to drone use, since it lists the circular requirements when discussing drone operation guidelines.

At 3:26 in the video, the man says that he needs to take his drone to a height of about 700 feet in order to get the whole stadium in his shot. After saying this, the drone climbs higher and higher until the entire stadium is in the camera's shot. At 3:42, he says that the height of the stadium is "400 feet or so."

The FAA advisory circular states, "Do not fly model aircraft higher than 400 feet above the surface." Throughout the entire video, the man is almost certainly flying his drone much higher than the 400-foot ceiling recommended by the FAA This is the second way this man demonstrates you can get in trouble for flying a drone: take the drone far beyond the 400-foot ceiling recommended by the FAA and, as a bonus, say out loud that you've taken it hundreds of feet beyond that ceiling.

At 3:49, while the drone is rotating, a shadow of a plane appears in the upper right corner of the shot. While the camera never shows the plane itself, the shadow's path reveals that the plane is traveling close to the drone, and the shadow appears when the drone is at its highest point during its filming of the stadium.

Back to that FAA advisory circular! It states: "Give right of way to, and avoid flying in the proximity of, full-scale aircraft." This raises the third way to get in trouble for flying a drone: take the drone beyond the FAA's recommended ceiling in the proximity of full-sized aircraft.

In the background of this entire discussion lurks a fourth way to get in trouble: videotape your dangerous drone-flying habits, record your commentary, and share it with the public on Youtube.

Admittedly, the FAA's advisory circular is not law -- it is a series of recommendations for the use of model aircraft that most likely applies to drones. As I have blogged previously, the National Transportation Safety Board recently ruled that the FAA has not enacted any enforceable regulations against the use of drones. The FAA is appealing that ruling, and questions remain as to whether the advisory circular can be used to interpret the FAA's existing regulations that prohibit the careless or reckless operation of aircraft (Federal Aviation Regulations Part 91, Section 91.13(a)).

While the law may be unsettled, if the courts end up deciding that the FAA's flight regulations are enforceable against drones and are to be interpreted in light of its advisory circular, the man in this video could be in quite a bit of trouble. Federal law aside, a video like this would be excellent evidence in a tort claim if the man's drone ended up falling and causing damage.

Drones can be fun. But using them in a clearly dangerous manner and posting the video online is a pretty foolish thing to do.

FAA Authorizes Commercial Use of Drones for the First Time

So reports this press release from the Federal Aviation Administration:

The U.S. Department of Transportation’s Federal Aviation Administration has given approval for energy corporation BP and unmanned aircraft systems (UAS) manufacturer AeroVironment to fly an AeroVironment Puma AE for aerial surveys in Alaska—the first time the FAA has authorized a commercial UAS operation over land.

Other coverage of this approval is available at the Wall Street Journal, Los Angeles Times, and CNN.

While the FAA permits the use of drones by hobbyists, this is the first time the agency has permitted the commercial use of drone technology. The Wall Street Journal notes while many private entrepreneurs have begun using drones without FAA permission, BP is "one of the first major companies to invest in the technology for its operations."

Media Companies File Amicus Brief Arguing That Broad Drone Regulations Violate First Amendment

The Wall Street Journal reports on media companies' opposition to strict federal restrictions on drones:

Some of the largest U.S. news organizations are accusing the Federal Aviation Administration of infringing on their First Amendment rights by effectively prohibiting them from using drones for reporting in the country. 

Fourteen news organizations, including the Associated Press, New York Times Co. . . .. , and Tribune Co. . . . , filed a joint brief in a high-profile legal case that is testing the FAA's legal authority to regulate drones. 

In the brief, the media groups criticized the FAA's "overly broad policy" that restricts use of commercial drones in the U.S., saying it violates the First Amendment right of newsgathering and has already had "an impermissible chilling effect" on some journalists' reporting.

I blogged previously about the administrative decision by the National Transportation Safety Board that invalidated the Federal Aviation Administration's (FAA's) fine. I think that there are some interesting First Amendment questions raised by strict drone regulations, since the use of drones in journalism are becoming increasingly commonplace. Jason Koebler at Motherboard surveys how journalists are turning to drones:

Meanwhile, some journalists have started using drones to document the news—in Connecticut, a TV-station producer flew a drone over the aftermath of a car accident. The FAA has said it’s looking into the issue. Last week, a storm chaser in Arkansas used a drone to document a tornado in the state—the FAA similarly said that it’s “looking into” the issue. The FAA has also grounded drone journalism programs at the University of Missouri and the University of Nebraska.

The FAA is planning to release proposed rules governing the use of drones in November, and this brief will hopefully alert the agency that it will need to keep the First Amendment in mind when it is drafting its regulations.

Here is the brief itself:

Media Companies Drones

Why Wells?: Exploring the Freedom of Information Act's Ninth Exemption

Yesterday in my administrative law class, we discussed the Freedom of Information Act (FOIA) (5 U.S.C. §552). There is a lot in that act, but for purposes of this post, I am focusing on §552(b), the subsection of the act that exempts certain information from FOIA's requirement that governmental agencies provide information to parties' requests. Specifically, I am focusing on the ninth exemption to FOIA's requirements, which exempts "geological and geophysical information and data, including maps, concerning wells" from FOIA's disclosure requirements.

Other exemptions to FOIA allow the government to retain information that pertains to trade secrets, national security, or private information about agency personnel. Those exemptions make sense to me, but in light of those exemptions, I was led to wonder, "why wells?"

After some searching, I found the Department of Justice Guide to the Freedom of Information Act, which explains the breadth of the subsection nine exemption. In doing so, the guide illustrates the lack of cases that address the exemption.

I decided to look through the few cases that discuss the ninth exemption, and I found that they outlined an evolution in courts' interpretation of FOIA's ninth exemption. I explore this evolution after the jump.

National Transportation Safety Board Invalidates Fine for Drone Use; FAA Appealing

Administrative law can be "dreary," or even "boring!" but the broad, technical principles that administrative law courses teach can end up being applied in some interesting contexts. Take, for example, this article by Ryan Calo at Forbes (h/t my administrative law professor, Gregory Ogden). There, Calo writes:

An administrative judge invalidated a fine yesterday against an individual who used a small drone for the commercial purpose of taking and selling photographs. The decision has been heralded, rightfully, as a blow to the Federal Aviation Administration’s ability to regulate private drone use in the United States.

The administrative hearing was heard by a judge with the National Transportation Safety Board (NTSB) and it overturned a fine by the Federal Aviation Administration (FAA) against Raphael Pirker. Pirker successfully challenged the fine by arguing that the FAA had not properly enacted a rule against the use of his "model aircraft," and that the FAA's statements on model aircraft were non-binding.

The FAA is appealing the NTSB's order, and it will be interesting to see how this case proceeds. The FAA is scheduled to release comprehensive regulations on the use of unmanned aircraft before the end of 2015, but it will be interesting to see if this case ends up speeding along that process.

UPDATE

You can read the full NTSB decision here.