October 31, 2016 Practice Points

Your 2016 Update on Drone Regulation and Litigation

By Erika Maurice and Vincent C. Lesch

Regulation
August 29, 2016, marked the effective date of the Federal Aviation Administration’s (FAA) first comprehensive regulations governing the commercial operation of small unmanned aircraft systems, often referred to as “sUAS” or more commonly as “drones.” See Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42063. The rule, spanning over 150 Federal Register pages, creates an entirely new Part 107 in Title 14 of the Code of Federal Regulations, and codifies many requirements for all commercial drone operators, such as:

  • The pilot must be over 16 years old and hold a Remote Pilot Airman Certificate;
  • A visual line-of-sight (VLOS) with UAS must be maintained at all times;
  • Drones must fly under 400 feet, unless within 400 feet of a structure;
  • Must fly during the daytime;
  • Must yield to manned aircraft;
  • Must NOT fly over people; and
  • Must NOT fly or operate from a moving vehicle.

While this new rule might seem restrictive for such a promising technology, the FAA is continuing a robust waiver process to grant permission for operations beyond the rule’s confines. The FAA’s administrator, Michael Huerta, noted that this rule “was not an end in itself,” and waivers remain a way to allow for commercial innovation. See Leah Froats, Part 107 Commercial Drone Regulations Now in Effect, Drone360 (Aug. 29, 2016).

As of February 2016, the FAA has also required that all drones between 0.55 and 55 pounds, whether they are used for commercial or recreational purposes, and be registered through its website, registermyuas.faa.gov. See Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78593. Registration is mandatory prior to any operation of the drone outdoors, and requires the submission of the owner’s name and home and email addresses. While recreational users can register once and receive a single FAA “N number” to display on all their drones, commercial operators must register each of their drones individually. Failure to register a drone can result in a civil penalty of up to $27,500, as well as potential criminal penalties.

FAA Preemption of State and Local Drone Regulation
In addition to releasing new regulations, the FAA has also tried to head off and discourage any state or local governments from regulating drones. It released a fact sheet advising any state or locality considering UAS regulations to consult with the FAA before taking any action. See Office of the Chief Counsel, FAA, State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet (Dec. 15, 2015). The document highlighted numerous precedents holding that federal law preempted the entire field of aviation safety, and reminded states that it is the FAA’s responsibility to maintain a safe air transportation system, including an airspace “free from inconsistent state and local restrictions[.]” Id. at 2-3 (citing Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007); French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989); Arizona v. U.S., 132 S. Ct. 2492, 2502 (2012); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 386-87 (1992)). While certainly informative, the Fact Sheet, as well as new Part 107, stop short of actually defining what the FAA believes are the boundaries of the preempted field of drone regulation, leaving future regulation and litigation to resolve the issue.

One example of such litigation can be found in the colorful and widely publicized case of Boggs v. Merideth, Case No. 3:16-cv-00006-DJH (W.D. Ky.) (filed Jan. 4, 2016), in which a private drone operator in Kentucky filed a civil complaint against a property owner who shot his drone out of the air with a shotgun. The drone was equipped with a camera, and the incident was caught on film. The property owner was initially charged by Kentucky authorities with a felony for shooting down the drone, but the local criminal court dismissed the charges, ruling that under Kentucky law the owner had a “right to shoot” the drone to protect his family’s privacy rights and prevent further trespass. The drone operator’s civil suit seeks a declaration that federal drone regulations preempt Kentucky’s trespass law and that, therefore, he was entitled to fly his drone in the property owner’s airspace. He also seeks monetary damages for the destruction of his drone. The case will likely be decided before the end of 2016. The result may set a precedent for future drone-related litigation regarding the interaction between federal drone regulation and state tort law.

Erika Maurice is an associate with Condon & Forsyth LLP in New York City, New York. Vincent C. Lesch is an associate with Kreindler & Kreindler LLP in New York City.


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