So, you just purchased a fancy new drone (“unmanned aircraft system” or “UAS”) and you have been flying it around. About a week later, you receive a phone call from an FAA inspector in which the inspector tells you that you have been operating your drone in violation of the Federal Aviation Regulations (“FARs”). And now you are wondering what’s going on and what can you expect?
As you may be aware, the FAA considers both UAS and model aircraft subject to regulation (although two civil lawsuits are pending disputing the FAA’s position, at least as it relates to “model aircraft”). And with that regulation also comes the responsibility for compliance and enforcement of the FARs applicable to UAS and their operation.
With the proliferation of UAS operations within the United States, the FAA is concerned about the safety risk posed by UAS operations that may be contrary to the FARs. To address these concerns, the FAA has stated that it “will use its resources to educate UAS operators about regulatory compliance and, when appropriate, use administrative and legal enforcement action to gain compliance.”
How Does a UAS Operator Violate the Regulations?
What does this mean for UAS operators? It means the operator of a UAS is now subject to the FAA’s compliance and enforcement procedures in the event that the UAS operator violates applicable FARs or other statutory requirements when the operator is operating its UAS. For example, if the UAS is being operated for hobby or recreational purposes and the operation “endangers the safety of the National Airspace”, the FAA may cite the operator for violation of operational FARs such as §§ 91.13-91.15, 91.113, 91.126-135, 91.137-145, and 14 C.F.R. Part 73.
If the UAS is operated for commercial purposes (e.g. other than for hobby and recreational purposes) and the operator does not have FAA authorization for the operation in the form of a Certificate of Authorization (“COA”), an exemption or an airworthiness certificate and civil aircraft COA, then the FAA could cite the operator for lack of the appropriate authorizations such as pilot and aircraft certification as well as any applicable operational FARs. Or if the UAS operator does have a COA or exemption but operates contrary to the operational requirements associated with the authorizations then the operator could be cited for violating those requirements.
How Will the FAA Respond to Violations?
In order to determine what type of action the FAA will take to respond to violations by a UAS operator, the FAA will analyze
Whether the violation was a first-time and inadvertent violation;
Whether the violation involves repeated or intentional violations; and
Whether the safety risk resulting from the operation in terms of actual or potential endangerment to the National Airspace was low/medium/high.
If the UAS operator’s violation is a first-time, inadvertent violation and education or counseling by the FAA will ensure future compliance, then the case will be resolved as a “compliance action” using education or informal counseling. When a situation involves a first-time, inadvertent violation by a UAS operator that poses a low actual or potential risk to safety but the FAA determines compliance cannot be gained through education, then the FAA will pursue administrative action using a warning notice or letter of correction with possible remedial training. And if the FAA determines that a UAS operator’s violation poses a medium or high actual or potential risk to safety, then the FAA will pursue legal enforcement action through a certificate or civil penalty action.
So, when will a UAS operator’s conduct subject the operator to legal enforcement action? One example would be when a UAS operator’s conduct has a medium or high risk of endangering the operation of another aircraft or endangering persons or property on the ground. Another example would be when the UAS operator’s conduct involves repeated or intentional violations.
What Type of Sanction Will the FAA Impose?
Once the FAA decides that legal enforcement action is necessary or appropriate, it must next determine what sanction it should impose for the violation. The sanction will vary depending upon whether the operator is an individual or an entity and, if an entity, what size of entity. FAA Order 2150.3B, Appendix B (the sanction guidance table) identifies a range of sanctions.
If a UAS operator’s violation poses a medium actual or potential risk to safety then the FAA may seek to impose a civil penalty in the minimum to moderate range. Alternatively, a violation by a UAS operator that poses a high actual or potential risk to safety would likely result in assessment of a civil penalty in the maximum range. And, not surprisingly, if a UAS operator repeatedly or intentional violates the regulations then the FAA would impose a civil penalty in the applicable maximum range.
UAS operators who also hold airman certificates (e.g. a pilot, mechanic or other certificate) are at even greater risk. The FAA has stated “[f]or a deliberate, egregious violation by a certificate holder, regardless of whether the certificate holder is exercising the privileges of the certificate in connection with the violations associated with a UAS operation, certificate action, may be appropriate. Such certificate action may be in addition to a civil penalty.” So, not only could an airman operating a UAS be subject to a civil penalty, but his or her airman certificate could also be at risk if the FAA thinks the airman’s UAS violation was serious enough.
For the operator of the shiny new UAS I mentioned above, my advice is to proceed with caution. How the operator was operating the UAS as well as what the operator tells the FAA will have a significant impact upon how the FAA views the case and what action it feels is necessary to deal with any regulatory violations. Knowing what to expect can help UAS operators be prepared to respond to the FAA appropriately.