Navigating drone laws has become a growing and lucrative legal niche
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.
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.
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.
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."