According to a recent agency press release, the FAA on Tuesday issued a $1.9 million fine for Chicago-based drone operator, SkyPan, for allegedly “endangering the safety of our airspace” during unauthorized flights over New York City and Chicago. The FAA claims SkyPan’s 65 offending flights took place between March 2012 and December 2014 “in some of our most congested airspace and heavily populated cities, violating airspace regulations and various operating rules,” and that, “These operations were illegal and not without risk.”
Forty-three of the alleged incursions took place in the New York Class B airspace. In addition, the agency says SkyPan flew its unmanned aerial vehicles (UAVs) without equipment required for Class B airspace operations, including a two-way radio and a transponder with altitude reporting capability. FAA Administrator, Michael Huerta said, “Flying unmanned aircraft in violation of the Federal Aviation Regulations is illegal and can be dangerous,” noting that “We have the safest airspace in the world, and everyone who uses it must understand and observe our comprehensive set of rules and regulations.”
This civil penalty action comes in the midst of the agency’s work to compile a comprehensive set of rules for the commercial operation of UAVs in U.S. airspace. Until those regulations are in place, the FAA will continue to issue permits to UAV operators on a case by case basis. About 1,800 such permits have been granted to date. However, with the holiday season rapidly approaching, retailers estimate adding approximately one-million new UAVs to the civilian market before the end of the year. Perhaps in the near future, the FAA will be issuing additional large civil penalties to ignorant drone operators more for shock and deterrence value than anything else.
The regulatory landscape governing unmanned aerial vehicles is unsettled and largely uncharted territory. We recommend that all operators and potential operators seek the advice of experienced aviation counsel before conducting flights with any unmanned devices.
History has taught us that the FAA could almost always be counted on to bring the full weight of the federal government to bear on airmen who deviated from the Federal Aviation Regulations, no matter how minor the infraction. However, a recent Order seems to indicate that the feds are re-thinking their enforcement methodologies. Order 8000.373 states that:
The FAA recognizes that some deviations arise from factors such as flawed procedures, simple mistakes, lack of understanding, or diminished skills. The Agency believes that deviations of this nature can most effectively be corrected through root cause analysis and training, education or other appropriate improvements to procedures or training programs for regulated entities, which are documented and verified to ensure effectiveness.
Could it be that the FAA is now relaxing its black-or-white view of pilot deviations and minor FAR infractions? Such would be a welcome change for airmen who previously experienced the FAA’s relentless pursuit of maximum penalties for minor violations. However, not to be completely foreclosed from pitbull-style prosecution, the FAA left itself an avenue of enforcement in the Order, noting that “reluctance or failure in adopting these methods to remediate deviations or instances of repeated deviations might result in enforcement”. The true effect of the Order remains to be seen.
FAA enforcement actions are complex proceedings filled with traps for the unwary pilot. Airmen facing any FAA investigation or enforcement action should immediately seek experienced legal counsel to protect their certificates and rights.
In a recent legal opinion, the FAA has refused to extend a provision in the Chicago Convention which deems aircraft used in police and military services as “state aircraft” to include those used for medical services and disaster relief. Pointing to a draft version of FAA Advisory Circular AC00-1.1A, in which it was recognized that the list of missions undertaken by state aircraft in the Chicago Convention is not comprehensive, a humanitarian relief organization argued that medical and disaster relief flights should be granted state status. However, the FAA noted that this draft language was not adopted in the final Advisory Circular and that due to increased security measures and shifting regulatory oversight to host nations, extension of the Chicago Convention to automatically include medical and disaster relief flights would be imprudent. Despite foreclosing an automatic grant of state status to such flights, the FAA left open the option to apply for state status on a flight-by-flight basis by following proper diplomatic channels and securing necessary approvals from both U.S. and foreign authorities.
In a late-2014 legal opinion, the FAA claimed its authority to deny the issuance of a certificate of airworthiness (“C of A”) to an aircraft located outside the United States in cases where it determines that the issuance of such presents an undue burden to the agency. Specifically, the FAA suggested that it may invoke the “undue burden” test to deny the issuance of a C of A to an aircraft registered to a U.S. bank, but located on foreign soil. The agency’s test is derived from FAR 21.325, which states that “if the FAA finds no undue burden in administering the applicable [statutes and regulations], an export airworthiness approval may be issued for a product or article located outside of the United States.”
Even in cases where the owner or purchaser of an aircraft utilizes the services of a Designated Airworthiness Representative (“DAR”), the FAA claims that due to its oversight responsibilities involving DARs, the use of a DAR does not eliminate the “undue burden” to the agency and a C of A may still be properly denied. Clearly, this is a troubling development in the already complex maze of aircraft transactions which include an import or export of the subject airplane. Engaging experienced legal counsel early in the process will help to avoid the many pitfalls inherent in these types of transactions.
In a recent legal opinion, the FAA concluded that in the modern world of celebrity endorsement, an aircraft manufacturer may seek reimbursement for promotional flights involving a celebrity spokesperson. The manufacturer was seeking to pay celebrities to make appearances on its behalf in order endorse the manufacturer’s products. In seeking a legal opinion, the manufacturer represented to the FAA that providing transportation to paid celebrity endorsers in order to assist with marketing, promoting, and ultimately selling the manufacturer’s products was within the scope of, and incidental to, the business of the company, in accordance with the requirements of FAR 91.501.
However, the FAA cautioned that FAR 91.501 is a limited exception to certification requirements for commercial operators and air carriers, requiring the manufacturer, if challenged, to prove how the transportation of celebrity endorsers is within the scope of, and incidental to, the business of the company. As the FAA points out in this and other legal opinions, there is no hard and fast rule regarding reimbursement for Part 91 operations. Due to the complexity of the regulatory framework involved, manufacturers and operators should seek experienced legal counsel before seeking reimbursement for any Part 91 flight or instituting a program of reimbursement for certain aviation business activities.
In a recent change to its Compliance and Enforcement Program, the FAA has lowered the minimum sanction for inadvertent TFR incursions from a 30-day suspension to remedial training. Pilots who inadvertently enter temporary flight restricted airspace may avail themselves of the lower minimum sanction under the following circumstances:
1. Inadvertent, first-time violations resulting from aircraft intruding one mile or less into the security airspace and then turning and exiting directly when there are no resulting complications for air traffic control or other aircraft; or
2. Inadvertent, first time violations resulting from aircraft briefly (two minutes or less) squawking a 1200 code or failing to squawk an assigned discrete code, in security airspace that requires the aircraft to squawk a discrete code when there are no resulting complications for air traffic control or other aircraft.
All other situations will continue to incur progressive enforcement sanctions starting with a 30-day suspension of all pilot certificates. FAA enforcement actions often involve complex issues, including an airman’s particular facts and the governing law and regulations. When faced with any investigation or legal action, pilots should consult with experienced aviation counsel to determine their rights and obligations before speaking with authorities.
The FAA recently announced the congressionally-mandated research and test sites for unmanned aircraft systems (“UAS”). The test site operators selected by the FAA are:
The University of Alaska;
The state of Nevada;
Griffiss International Airport (RME) (New York);
The North Dakota Department of Commerce;
Texas A&M University – Corpus Christi; and
Virginia Polytechnic Institute and State University.
In announcing its selections, the FAA stated that “each test site operator will manage the test site in a way that will give access to parties interested in using the site.” However, the agency has yet to announce rules or procedures by which it will ensure that UAS will avoid and not enter the same airspace as manned aircraft, or whether UAS operating at these test sites will meet the same certification and airworthiness standards as manned aircraft.
In a recent legal opinion, the FAA cautioned that offering free seats to non-business passengers on private flights while encouraging those passengers to make charitable donations may be contrary to Federal Aviation Regulations. The seats in question are on aircraft which are owned by a company that is not engaged in air transportation, but uses its fleet of aircraft in furtherance of its business. The company allows individuals to occupy any unused seats on its aircraft when the transportation of those individuals is not within the scope of or incidental to the company’s business. The company does not charge the individuals for access to those seats, but offers to facilitate a donation by the individuals to one or more local charities.
Encouraging or facilitating donations for transportation on flights may be considered the carriage of persons for compensation or hire, requiring the operator to hold a part 119 air carrier or commercial operator certificate to operate these flights under part 121 or 135 rules. Because the FAA defines “compensation” in very broad terms, it does not require profit, a profit motive, or the actual payment of funds to determine that compensation was exchanged. Under the FAA’s definition, valuable good will can be considered compensation. Although charitable donations are not a requirement to obtain transportation on the company’s aircraft, encouraging or facilitating donations in exchange for transportation may result in the receipt of valuable good will. Therefore receipt of good will through facilitation of charitable donations in some circumstances may be construed as compensation, and thus would be in violation of FAR part 91.
The FAA distinguished this scenario from those flights authorized under FAR 91.146 – flights for the benefit of a charitable, nonprofit, or community event. Because the company merely encourages charitable donations, but does not conduct flights directly for charitable purposes, its flights fall outside this exception. Conducting charitable operations under the FAA’s narrow regulatory exceptions is complex and should be guided by experienced legal counsel.
In a recent legal opinion, the FAA determined that the lease of an experimental light sport aircraft (ELSA) to a non-profit flying club violated the operating limitations of ELSAs set forth in FAR 91.319. Under the factual scenario presented to the agency, the owner of a light sport aircraft bearing a special airworthiness certificate proposed to lease the aircraft to a non-profit flying club. The club would then retrofit the aircraft with a Ballistic Recovery Systems parachute and have the aircraft re-certified as an ELSA.
Pursuant to FAR 91.319(f), no person may lease an aircraft that is issued an experimental certificate, except for compensation or hire to tow a glider that is a light-sport aircraft or unpowered ultralight vehicle. Although the lease of an ELSA to a flying club would not be considered a commercial operation, FAR 91.319(f) imposes strict limitations on the lease of ELSAs which prohibit the proposed lease of an ELSA to a flying club unless it were used to conduct the specified towing operations. Moreover, the FAA reiterated its position that generally, light sport aircraft should not be used for lease or rental. Due to the many laws and regulations that affect flying clubs and lease agreements, the acquisition and ownership of aircraft, including light sport aircraft, should be guided by experienced legal counsel.
Part 135 air taxi operators seeking to add a new aircraft type to their operations need not wait until they receive notice that their amended Air Taxi Registration form (4507) has been approved before commencing operations with the new aircraft. A recent FAA legal opinion acknowledged that filing the amended registration pursuant to 14 CFR 298.23, within 30 days after a change occurs, is sufficient to commence or continue operations after adding a new aircraft type. However, the FAA cautioned that the filing of an amended registration does not relieve the operator of the requirement to obtain approval for any necessary amendment to its operations specifications pursuant to FAR 119.51. The certificate holder is required to file an application to amend its operations specifications prior to the desired effective date of the amendment, but the amendment is not effective until approved by the FAA.
Therefore, when adding a new aircraft type to its operations, an air taxi operator should obtain approval for any necessary amendment to its operations specifications prior to commencing operations with the new aircraft, but it may file its registration amendment within 30 days after the change occurs and still maintain its exemption. Any failure to strictly comply with these regulations will likely result in the operator losing its exemption and becoming the subject of an enforcement action. To avoid these pitfalls, operators should consult with experienced aviation counsel when changing their operations in order to ensure compliance.