What are my Legal Rights and Obligations if the FAA Comes Knocking – PART 2

Our series on The FAA and Drones will answer your questions about your legal rights as a pilot and as a business owner with subcontractor or employee pilots. We reached out to aviation attorneys Kathy Yodice and Loretta Alkalay for their perspectives to your questions.  We will feature Kathy and Loretta’s responses in a ongoing series to help you understand the FAA and your rights as a pilot and/or business owner.

Submit your questions via our contact page by clicking here:  Contact Us to submit your question.

Question:

I don’t know much about the FAA, except for what I’ve been reading about how the FAA is becoming more aware of drone operations and is regulating drone operators more than ever.  How strident is the FAA in taking action against drone operators and what can they do to me or my company?

Answer:

With the authority to regulate comes the authority to make sure the rules are followed.  The FAA enforces compliance with the rules by taking an action against someone whom they believe has violated a rule or who has acted in a way to demonstrate that they are not qualified to follow those rules.  The FAA has the power to impose fines, suspend or revoke certificates and authorizations, and to order that a person stop flying an aircraft.

The FAA sets out its policies and procedures for ensuring compliance with its rules and its manner of enforcing those rules in an internal agency document called the FAA’s Compliance and Enforcement Handbook.  FAA inspectors are responsible for investigating whether alleged conduct constitutes a violation and, if so, what action should be taken.  The inspector can provide informal counseling or issue a written warning notice, which is usually handled very quickly and there is no further follow up.  The inspector can also determine that a matter warrants legal action in which case the inspector gathers together evidence to show the violation and forwards that evidence to the FAA’s attorneys to take an appropriate enforcement action.  This process is often lengthy and can take months to complete.  Getting competent counsel in this process is strongly recommended.

The FAA has several enforcement tools at their disposal.  FAA Inspectors are required to consider several criteria before making a judgment about how to proceed, as follows:

  • For a first-time, inadvertent violation with a low actual or potential safety impact that can be addressed through education, you should expect that the FAA inspector will informally counsel you and that will end the matter.
  • If the inspector determines that a first-time, inadvertent violation poses a low actual or potential risk to safety but doesn’t feel education is sufficient, the inspector will issue a warning notice or letter of correction if additional training has been taken, or needs to be taken, and satisfactorily completed.
  • If the Inspector believes that a violation poses a medium or high actual or potential risk to safety, the inspector will forward evidence of the violation to the FAA’s legal office to initiate an enforcement action against the drone operator.

The kinds of cases that the FAA believes will warrant legal enforcement are those involving an unacceptable risk of endangering the operation of another aircraft or endangering persons or property on the ground.  It also considers repeated or intentional violations to generally warrant legal enforcement action.

Legal enforcement action will take the form of a civil penalty or a certificate suspension or revocation, or both.  The amount of the civil penalty and the length of the suspension or the revocation of any airman certificate will depend on the circumstances of the case and the gravity of the conduct.  If the drone violation is committed by someone who already holds an FAA certificate, the FAA considers this an aggravating factor because the FAA maintains that a certificate holder should appreciate the potential for endangerment that operating a UAS contrary to the FAA’s safety regulations may cause.

Civil penalties against individuals can range from $500 to $1,100 per violation and against entities can range from $1,100 to $25,000 per violation.

Have a question for Kathy and Loretta?  Submit your questions via our contact page by clicking: Contact Us to submit your question.

Kathleen A. Yodice is an aviation lawyer practicing in the Washington, DC area representing the interests of drone operators, pilots, mechanics, commercial entities, airports, and aircraft owners in aviation law and corporate matters nationwide.  Ms. Yodice started her legal career with the FAA in 1986, before going into private practice in 1998.

 

Loretta Alkalay is an aviation attorney and consultant based in the New York City area and is an adjunct professor at Vaughn College of Aeronautics and Technology where she teaches a course in Drone Law.  Ms. Alkalay retired from the FAA in 2009, after 30 years with the FAA as the agency’s Eastern Regional Counsel.

 

“Expert Insight” is the independent views and opinions of the submitting named authors of this article.

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