Navigating
drone laws has become a growing and lucrative legal niche
ABA
Journal
Posted
Jul 01, 2017 12:20 am CDT
By
Darlene Ricker
Imagine
a Jetsons-like world with drones buzzing above your building as they deliver
packages, dry cleaning and even groceries to a rooftop concierge. Four years
ago, CEO Jeff Bezos predicted that Amazon.com would be using drones for
deliveries by 2019, and aviation lawyers saw what was on the horizon: a budding
practice area in which the sky is literally the limit.
Although
legal developments might delay Bezos’ timeline, nothing has slowed the
proliferation of drones in a wide range of commercial and personal uses. To
hobbyists, a drone is a fancy toy. To Hollywood studios, it’s a magical tool.
To search and rescue crews, it’s a lifesaving device. Regardless of the
application, the central issue remains: How will the law be interpreted and
applied in this uncharted territory?
That
question has catapulted the careers of a cadre of attorneys across the country.
Given the ambiguities in the law, which had no warning of this technological
development, the brave new world of drones has spawned a growing—and lucrative—legal
niche. With little case law for guidance and a complex web of government
regulations to wade through, “drone attorneys” have recently found themselves
in high demand.
The
problems drones can cause might not initially have been obvious to the public.
But the Federal Aviation Administration was keenly aware from the beginning.
The agency’s mandate is clear-cut: to keep safe the airspace. Anything that
flies carries the risk of crashing into another object or falling and
endangering people and property below. Drones fall under the legal rubric of
“aircraft” and therefore must be regulated for the same reasons airplanes are.
Beyond safety concerns, the same legal issues that apply to the use of any
vehicle (even an automobile) have their place in drone law: permissible
operation, civil and criminal liability, misuse and the like. That has opened
multiple doors for the practice of drone law.
In
its infancy, drone law was largely the domain of sole practitioners, many of
them licensed aircraft pilots or drone hobbyists. But when Congress in 2012
mandated the FAA to draft regulations for drone operation by 2015, the prospect
of drone law practice began to catch the attention of large firms, particularly
those with aviation law departments.
NEW
OPPORTUNITIES
Among
the first was Dentons, one of the largest law firms in the country as well as a
global firm with a long-established aviation law department. In late 2013,
Dentons announced the formation of a UAS (unmanned aircraft system aka drone)
practice group, which launched in 2014. The firm has more than 20 aviation
lawyers and professionals, five of whom focus almost exclusively on drone
matters.
If
drone law seems too narrow of a niche for a large firm, it has turned out to be
anything but. “Law firms recognized that drone law is the hottest, most ripe
opportunity there is,” says Michael Drobac, an attorney in Akin Gump Strauss
Hauer & Feld’s drone law practice group in Washington, D.C.
For
Dentons, it made perfect sense to expand its practice into drone law. “A drone
is a small aircraft. Who better than aviation attorneys to be lawyers to the
drone industry?” says partner Mark Dombroff, who co-chairs the firm’s aviation
law department and is based in McLean, Virginia.
He
sees drone law as an enormous area. “Drone technology is going to advance
dramatically, and it’s going to revolutionize the size and magnitude of the
aviation industry.”
A
former FAA and Department of Justice aviation attorney, Dombroff saw the
potential when Congress issued its drone regulations mandate. “We looked at the
drone world and said to ourselves, ‘This isn’t a toy. A drone is aviation.’ We
knew the drone industry was going to develop and eventually be regulated just
like airplanes,” he says.
It
has taken 114 years—since the Wright brothers flew the first airplane—for
aviation law to reach its current state of development.
“I
can assure you it’s not going to take that long for drone law to catch up,”
Dombroff says. He predicts that the niche will eventually become as large as
aviation law because the widespread use of drones significantly exceeds the
sphere of drone manufacturers or operators.
DRONES,
DRONES EVERYWHERE
The
U.S. military, which began to experiment with unmanned aircraft in the 1920s,
developed much of the early drone technology for wartime use, such as
conducting surveillance in dangerous places and delivering deadly weapon
payloads.
When
it comes to deploying drones as a deadly force in conflict, international
humanitarian laws govern their use. This requires distinguishing between
combatants and civilians and taking precautions against strikes on civilian
areas and infrastructure.
But
drones found their way outside the military, creating the need for a different
set of rules for civilians. The sheer numbers that operate in the “drone zone”
are staggering. As of Feb. 1, there were 49,857 commercial drones and 664,688
hobbyist drone owners registered with the FAA. Because hobbyists get one ID
number for all the drones they own, the FAA estimates owner registrations
represent 1.6 million drones.
The
statistics encompass all manner of machines, from basic models for toy or
recreational use—now easily available online and in electronics and department
stores—to super-high-tech devices favored by those who use drones for business.
Adam
Lisberg is a spokesman for DJI, a leading drone manufacturer based in China
that sells sophisticated professional-use drones. He says the technology has
already affected a panoply of industries.
“People
say drones are the future. That’s true. But they’re also very much the here and
now,” he says.
“Every
day we’re seeing new uses of drones that are saving money, saving time and
making filming safer. Just about every business you can think of needs images,”
Lisberg says. “It can be done more efficiently, safer, cheaper with a drone.
It’s so much safer to do inspections with a drone than having someone climb to
the top of a cellphone tower.”
Dombroff
ticks off myriad ways businesses are already using drones: insurance, news
gathering, commercial surveillance, remote sensing, power line inspection,
commercial filming, concerts, advertising, real estate, construction, law enforcement,
firefighting, disaster relief, agriculture, education, air quality, search and
rescue, and mineral, gas and oil exploration.
Dentons
has clients in many of those areas, which makes it logical for Dombroff’s firm
to have a drone practice, he says. “Those clients are entering the aviation
industry,” he says, even if it’s by default.
FIGHTING
THE FAA
Akin
Gump, which formed a drone law practice in 2014, defended an aerial filming
company in a recent high-profile FAA enforcement matter, Huerta v. SkyPan
International. The largest drone fine ever sought—$1.9 million—targeted SkyPan,
a provider of aerial photography for real estate developers and architectural
companies. SkyPan has used drones for more than two decades without incident.
The
Federal Aviation Administration claimed that SkyPan flew near high-rises in
restricted airspace in Chicago and New York City. The case settled in January
for $200,000. Before SkyPan, the largest commercial fine was $18,700.
Some
might wonder why the FAA singled out SkyPan. The enforcement action might have
been somewhat more objective than it appears.
In
assessing the severity of violations for drones and commercial air carriers,
the FAA refers to a sanction guidance table that suggests fine ranges based on
several elements. Among them are whether the aircraft was manned or unmanned,
whether the violation was willful and intentional or inadvertent, whether the
operator was a business or an individual, and how many violations happened.
According
to an FAA spokesman, enforcement actions come from a variety of sources,
including complaints from the public, referrals from local law enforcement and
independent FAA investigations. Building owners are among those who have
complained about drone activity in their vicinity.
Because
FAA fines range from $1,000 to $10,000 per incident, they can rack up easily,
even in situations that might not appear to warrant harsh punishment. For
example, if a drone falls from the sky and dents a car but is found to have
been flown in violation 100 times, math dictates that the fine could be
$100,000 or $1 million.
If
a proposed levy exceeds $400,000, the FAA sends a civil penalty letter to the
alleged violator. If a settlement is not reached, the FAA may refer the matter
to the DOJ, which determines whether to file a complaint.
SkyPan
was a business matter that involved more than 60 drone flights from 2012 to
2014 that allegedly violated FAA regulations. In the settlement, the agency
agreed to make no findings of violation.
Drobac,
executive director of the Small UAV Coalition, a trade organization in
Washington, D.C., says there was “white-hot interest in the [drone] industry in
SkyPan.”
In
Dombroff’s view, “SkyPan sent a firm message to the drone industry: ‘You’re not
playing with toys anymore. You’re in the regulated world of aviation.’” He
predicts significantly stepped-up FAA enforcement by the end of the year.
The
FAA has targeted drone operators as diverse as teenagers and large
corporations, issuing fines from $400 into the millions. Shawn Usman, a
hobbyist who crashed a drone on the White House lawn in 2015, paid $5,500. More
often, fines and settlements range from $1,100 to $2,200.
“The
drone community is not well-organized, and it’s easy for the FAA to pick on
them,” says Jonathan Rupprecht of Palm Beach Gardens, Florida, a sole
practitioner who is a licensed pilot and flight instructor.
NEW
REGULATIONS
The
FAA has a new enforcement tool. Last August, long-awaited drone regulations
under Part 107 of the Federal Aviation Regulations (the small UAS rule) took
effect. They approved drone use for agriculture; research and development;
educational and academic use; power line, pipeline and antenna inspections;
rescue operations; bridge inspections; aerial photography; and evaluations of
wildlife nesting areas.
The
regulations took several years to reach their final form, and the agency
received input from “a variety of industry stakeholders and elected officials,”
the FAA spokesman says. “In fact, the FAA has had an aviation rule-making
committee on UAS, consisting of industry representatives, to make
recommendations to the FAA since 2008.”
Loretta
Alkalay, an aviation and drone lawyer in New York City, says the new
regulations are a mixed bag. On the down side, she says, “the FAA has created a
nation of scofflaws.” Alkalay, who was the regional counsel of the FAA’s
eastern division for more than 20 years, teaches a popular drone law course at
the Vaughn College of Aeronautics and Technology in Queens.
She
says drone enthusiasts, particularly student hobbyists, find the regulations to
be confusing. “The FAA needs to make it easy to comply. A lot of people get started
as hobbyists. If you make it difficult for students, you make it difficult to
feed the pipeline for aviation professions.”
Brendan
Schulman—DJI’s vice president of policy and legal affairs, who is based in its
New York City office—takes exception.
“It’s
easier now to comply with the law. Part 107 lowered the barrier of entry,” he
says. “Anyone who wants to experiment with the use of a drone in his business
just has to pay $150 and pass a multiple-choice test. Before, you had to go to
flight school and pay thousands of dollars to get a pilot’s license.”
At
the 2017 Consumer Electronics Show in January, Michael Huerta, administrator of
the FAA, said that since Part 107 went into effect, more than 30,000 people
have started the remote-pilot application process. About 16,000 have taken the
remote-pilot knowledge exam, and about 90 percent have passed.
In
the five months since the new regulations took effect, the FAA had not
initiated any cases that alleged Part 107 violations, according to the FAA spokesman.
However, he says, there might be incidents under investigation that the FAA
will not discuss.
Meanwhile,
John Taylor, a Silver Spring, Maryland, attorney and a drone hobbyist, says, “A
13-year-old who fails to follow the arcane nuances of FAA regulations regarding
recreational use shouldn’t be a felon for failing to comply with rules
appropriate to commercial operations. Small flying toys aren’t aircraft and
shouldn’t be treated as such, especially when operated below the tree line in
the property owner’s backyard.”
Toy
drones that weigh 0.55 pounds or less do not require registration, and that
covers most toys costing less than $100. Children must be at least age 16 to
apply for a drone license and are subject to enforcement actions for drones.
According to the FAA spokesman, the agency has received complaints about
underage children operating drones. But as of March 7, it had not taken any
enforcement actions.
“I
believe that whether a property owner wants his children to be able to fly
their toy aircraft there, or whether he wants to prohibit commercial drone
flying there, is the property owner’s choice,” Taylor says. “That opinion may
not sit well with a lot of folks, especially commercial operators, but I
believe that’s where a century of aviation case law takes us.”
Taylor
spent a winter night in 2015 crafting a legal challenge on his own behalf to
the rule that prohibits flying model aircraft within 30 miles of Washington
national airspace. “I was sitting in my office and realized that, with Christmas
coming, thousands of people would be getting drones as gifts. And like everyone
else, they probably had no idea how to operate them legally,” he says.
Rupprecht
was beside him at the desk. The two stayed up all night, drafting a petition
for injunctive relief. Taylor filed his complaint that December.
At
this point the fate of the registration requirement for hobbyist drones appears
uncertain. The U.S. Court of Appeals for the District of Columbia Circuit
struck down the requirement May 19, ruling in Taylor v. Huerta that the FAA
didn’t have the authority to regulate model aircraft. At press time the FAA had
not announced whether it would challenge the ruling.
Several
drone attorneys expressed skepticism that a motion for rehearing or an appeal would
be effective. “The opinion said what the FAA is doing is illegal and told them
to stop. It doesn’t get much clearer than that,” says Taylor, the plaintiff.
The
agency confirmed it was considering its options, saying in a statement, “The
FAA put registration and operational regulations in place to ensure that drones
are operated in a way that is safe and does not pose security and privacy
threats.”
Taylor
dismisses that rationale, calling the registration requirement “a feel-good
measure taken in reaction to unfounded hysteria” about drones and air safety.
“Registration seemed a tyrannical thing in the first place, and people are
mad,” he says.
Should
the decision stand, Taylor asks: “What happens now with the information about
people in the database and the fees that have already been collected?”
Rupprecht
says his aviation law practice morphed into a drone law boutique as drone sales
climbed and the government stepped up enforcement actions. He has 80 clients
who have drone matters.
“We
[drone attorneys] all fly, and we support each other. We’re like a freedom
fighter group,” he says.
UNANSWERED
QUESTIONS
While
the 624-page tome released by the FAA last June brought some clarity, drone
attorneys say a lot of gray areas remain. “Everyone’s playing hot potato with
the drone industry,” Rupprecht says. “The FAA punted [with Part 107] instead of
answering important questions. We still don’t know where the navigable airspace
is, and that’s a big problem.”
That
issue has been hovering above drone operations since 1989, when the Supreme
Court in Florida v. Riley ruled that police may conduct warrantless aerial
searches from public airspace. Although the height flown was 400 feet above an
alleged marijuana farm, the court did not define the limits of “public” or
“navigable” airspace, Alkalay says.
“I
am confident the courts will find that you own some space over your property,”
she says. “But is it 10 feet? Fifteen feet?”
Drone
attorneys want the FAA to have jurisdiction “all the way down to a blade of
grass,” Rupprecht says. “Otherwise, it will be a regulatory nightmare if we
have to deal with a mishmash of state and local regulations.”
The
issue is whether federal law pre-empts state law. Schulman of drone
manufacturer DJI deems pre-emption to be “a pressing issue.” Formerly in
private practice, he was a member of the FAA rule-making committee.
Schulman
fought several high-profile drone cases against the FAA. Among them was his
successful defense of Raphael “Trappy” Pirker in the first federal case that
involved the operation of a commercial drone in the United States.
In
2013, the FAA fined Pirker $10,000 for using a drone in 2011 to film the
University of Virginia in Charlottesville for an advertisement that promoted
the university’s medical school. The FAA alleged that it came within 100 feet
of an active heliport at the university and within 50 feet of people on a busy
street.
A
pedestrian told the FAA that he feared he would be struck and had to move out
of the drone’s path. Pirker was cited for operating a drone “in a careless or
reckless manner so as to endanger the life or property of another.” The case,
Huerta v. Pirker, turned into a protracted legal battle. It settled in 2015 for
$1,100.
Schulman
expresses concern that local and state legislatures proposed more than 280
state bills in 2016 to regulate drones. Their passage, he says, “would lead to
a less safe operating environment because it will be less clear what the rules
are.”
Dombroff
of law firm Dentons sees pre-emption as a nonissue. “Pre-emption is
well-established by U.S. Supreme Court decisions,” he says, pointing to the
1946 case U.S. v. Causby.
Causby
held that the federal government has pre-empted the regulation of airspace from
the ground up, creating a zone known as “Causby airspace.” But it didn’t
pre-empt privacy issues, which are regulated by the states, Dombroff points
out.
PRIVACY
AND SAFETY ISSUES
Sally
French, the author of the popular Drone Girl blog, says Part 107 does not
regulate anything related to privacy.
“Some
people say we need drone privacy laws. The same privacy laws we have now apply
to the camera in your iPhone. Your cellphone can do a lot more damage than a
drone. You can take a photo in a locker room, and the person may have no idea.
A drone is big and loud and obvious,” French says.
Dombroff
says there has been a degree of hysteria about privacy at the state level.
“Everyone should slow down, take a deep breath and see if we need new privacy
laws for drones. I guarantee there will be, at some point, a lawsuit by the
federal government against a state drone law,” he says.
The
focus on regulating drones has escalated along with technology. As commercial
pilots started to fly higher, so have drone operators. That sparked safety
concerns within the FAA. Of recent concern has been a sport or a hobby known as
aeromodelling (or drone races), and its popularity is burgeoning.
ESPN
partnered with the Drone Racing League in September for a 10-episode season of
drone races, billed as the most recent extreme sport. Operated by controllers
on the ground, the drones navigated obstacle courses at up to 80 mph.
When
an unmanned aircraft reaches speeds that high, the airspace, as well as those
on the ground below it, might be at risk. However, Mark LaFay, an author of
drone law books, says, “The practical question is: How can a drone impact my
life? If your drone battery dies or you have a mechanical failure, a 10-pound
piece of equipment can damage property. If you drop 10 pounds on someone’s
head, it could kill them.”
Sole
practitioner and licensed pilot Rupprecht agrees that drone safety is
important. But he points out: “At the end of the day, there are a lot of other
things that can kill you. You’re worrying about a little drone crashing but not
the airplane you’re flying on?”
Last
September, Alina Pituch sued a University of Southern California fraternity
chapter and an event-planning company, claiming she suffered a head injury when
a drone photographing a frat party fell on her. The lawsuit in the Los Angeles
Superior Court alleges negligence and premises liability.
Some
people have taken concerns about personal safety from drones into their own
hands and promptly found themselves on the wrong side of the law. LaFay says
that even if a landowner thinks a drone might crash and damage their property,
they do not have the right to shoot it out of the sky.
A
Kentucky man did exactly that, claiming he had feared a drone was going to
crash onto him. But his “self-defense against drones” position didn’t fly with
authorities.
“If
someone parks his car on your front lawn, you don’t have the right to light it
on fire,” LaFay says. “You have the right to call a tow truck and sue the
insurance company. It’s the same if a car hits your mailbox—the driver is
responsible for the damage. You have to go through the proper process.”
Industries
and professions that depend on drones have encountered some unique legal
hurdles. Three years ago, the FAA began to allow drones to be used in
commercial filmmaking, but a waiver is required to fly a drone at nighttime or
above people (such as at outdoor concerts or the Olympics). FAA records
indicate that 65 percent of waiver applications have been used for night
operations.
Aerial
Mob, based in Carlsbad, California, was one of the first film production
companies in the United States to receive FAA approval to use drones in film
production in late 2014. The company works with major motion picture studios.
“Part
107 has some good parts and some not-so-good elements,” says Tony Carmean, a
founding partner, producer and head of business development at Aerial Mob.
Before
Part 107 was enacted, his company faced numerous restrictions on filming at
certain locations. “We lost business because we couldn’t turn around the
paperwork fast enough,” he says. “Before 107, we lost a job with Fox because it
took four months to get it approved. Now, we just have to give the FAA a few
hours’ notice. The FAA has it pretty streamlined to apply for a waiver to fly
in the dark and over people.”
In
November, the FAA approved Disney’s request to allow drone flights above Walt
Disney World and Disneyland Resort. The Magic Kingdom has been a no-fly zone
since 2003, when the restricted airspace was created for security reasons after
the 9/11 terrorist attacks in New York, Washington, D.C., and Pennsylvania.
Now,
instead of using live fireworks displays, drones will perform in a musical show
that features simulated fireworks, Disney characters in the sky, and perhaps
simulated space flights such as from the Star Wars movies. Drones will have LED
lights and fly in formations that create light-based entertainment, which some
say could revolutionize the entertainment industry.
Whether
or not that comes to pass, one thing is certain: The drone industry and the
issues that surround it are not going to fly away anytime soon.
Darlene
Ricker, a former entertainment law and intellectual property attorney, is a
freelance writer based in West Palm Beach, Florida.
This
article appeared in the July 2017 issue of the ABA Journal with the headline
"Taking Flight: Navigating drone laws has become a growing and lucrative
legal niche."
