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March 10, 2015 Practice Points

FAA Announces Proposed Drone Regulations

The FAA announced proposed rules for drones following an NTSB ruling that the FAA has authority to regulate small, unmanned aerial systems.

By David Dobin

On February 15, 2015, the U.S. Federal Aviation Administration (FAA) announced proposed regulations of small unmanned aerial systems (UAS), or drones, being used for non-recreational purposes. According to a press release issued by the FAA, the proposed rules do not apply to model aircraft, which are operated only for hobby and recreational purposes, and would require operators of a small UAS to obtain a certificate from the FAA, bar flying a small UAS over people (except for those involved with the flight), and limit altitude to 500 feet.

The FAA’s proposed regulations come a few months after a November 2014 National Transportation Safety Board (NTSB) decision unanimously reversing the decision of an administrative-law judge in the case of Huerta v. Pirker, which held that the FAA had no authority to regulate drones. In the decision on appeal, the NTSB panel unanimously concluded that the drone was an “aircraft” subject to regulation by the FAA under 14 C.F.R. § 91.13(a), which provides: “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” See Huerta v. Pirker, NTSB Order No. EA-5730 (Nov. 18, 2014). In reasoning that the FAA’s prohibition against operating an aircraft in a careless or reckless manner applies to drones, the NTSB decision stated:

We must look no further than the clear, unambiguous plain language of 49 U.S.C. § 40102(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.

In January 2015, the FAA settled the dispute with the operator of the drone at issue in the Huerta v. Pirker case, ending this opportunity for a federal court to decide the issue of whether the FAA has the authority to regulate drone operations. The new proposed rules recently announced by the FFA, however, may well be an opportunity for future judicial interpretation.

Keywords: litigation, drones, FAA, NTSB, young lawyers

— David Dobin, Cohen and Wolf, P.C., Bridgeport, CT

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