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Monday, June 1, 2015

Drones Quietly Expand FAA Jurisdiction from Airspace to Cyberspace

Paul Fraidenburgh

Paul Fraidenburgh is an attorney in the Orange County office of Buchalter Nemer and a member of the Aviation & Aerospace Practice Group. He focuses on representing technology companies in regulatory affairs and litigation. He can be reached at pfraidenburgh@buchalter.com

In April, the FAA issued a National Policy Notice outlining, for the first time, the agency’s regulation of “aviation-related videos or other electronic media on the Internet.” The new policy statement quietly signaled the dawn of a new era for the FAA, an era in which the agency’s jurisdiction extends beyond the navigable airspace and into cyberspace. The move also sheds light on how drone technology is both shaping and outpacing our nation’s aviation regulations.

The FAA’s new cyberspace policy was issued in response to the growing number of online aerial videos and photographs captured by small, unmanned aircraft systems in U.S. airspace. Thousands of videos posted on YouTube, Vimeo, and various other social media websites depict awe-inspiring aerial footage made possible only by the proliferation of drones across the continent. The FAA’s notice purports to offer “guidance to Aviation Safety Inspectors (ASI) regarding actions to be taken when notified of videos or other electronic media posted to the Internet depicting the operation of aircraft in the National Airspace System (NAS) that may be contrary to Title 14 of the Code of Federal Regulations (14 CFR) or statute.”

In March 2015, just one month before issuing the Notice, the FAA found itself on the losing end of a publicity war with drone hobbyist Jayson Hanes, who received an ominous letter from the FAA after an aviation safety inspector discovered the Floridian drone enthusiast’s collection of aerial videos on YouTube. The letter, which went viral, immediately sparked First Amendment concerns from the public and an outcry for the preservation of Internet freedom. Significantly, the FAA did not target Hanes for any alleged reckless operation of his drone, but rather for posting videos that appeared to the FAA to constitute commercial drone operations. And therein lies the problem: the FAA has expanded from an agency that exclusively regulated air safety to an agency that now regulates a limitless number of separate and only loosely-related issues including privacy, the Internet, free speech, and commerce for the sake of commerce (i.e., unrelated to any adverse safety determination).

The existing regulations are the direct outgrowth of an archaic regulatory framework governing manned aircraft operations. The result of this most unfortunate regulatory lineage is that the unmanned aircraft systems industry is still subjected to an irrational distinction between commercial drone operations and recreational drone operations.

If a film studio with vast resources, insurance policies, and industry know-how wishes to operate a drone on a closed film set, it must first petition the FAA for an exemption under Section 333 of the FAA Modernization and Reform Act of 2012, hire a manned aircraft pilot, and adhere to extremely strict flight procedures and limitations. Meanwhile, any amateur with a credit card can have a drone shipped to them and can legally operate the drone in public with fewer restrictions so long as he does not accept a penny for the operations. In fact, a drone operated for purely hobby or recreational purposes is legally characterized as a “model aircraft” while the same drone operated for commercial purposes is an “unmanned aircraft system.” Thus, under the law, a drone is not a drone by any other name.

The approximately 4,000 public comments posted in connection with the FAA’s recent Notice of Proposed Rulemaking applicable to small unmanned aircraft systems are a good sign for the industry, which continues to band together to solve both regulatory and technological challenges. If the FAA’s proposed rules become final in substantially the same form as they exist today, commercial operators using drones weighing 55 pounds or less will have a lot more freedom and a lot less red tape to cut through in 16 to 24 months.

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