Future UAS pilots and Principals need to know the potential Enforcement Impacts and Legal Barriers to Violators

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Our good friend, John Goglia and his co-professor at the Vaughn College of Aeronautics have written a thoughtful and insightful review of a new FAA policy and its impact on pilots who may hold a license. Ms. Loretta Alkalay, who was the FAA’s Eastern Regional Counsel, walks the reader through the details of the new enforcement policy, the predicates to sanctions and the potential outcomes in terms of dollar civil penalties as well as the potential for impact on the pilot’s license. There are a few other implications to any activity which may violate the FAA’s operational and economic requirements.

The new policy and the explanation of the consequences should be included in your pilot bag. Many, if not all, of the pilots who are operating UAS aircraft, do so with thoughts of the future of the industry. One of the critical initial inquiries for those seeking §333 exemptions, the eventual FAA certification for small and/or large UAS operations, the UAS pilot “license” and any related authority will be what is the historic “compliance disposition” of the applicant.

Any history of operational violations (weather, altitude, speed, reckless flight, exceeding CoA limitations [like failing to assiduously follow every restriction, including ground safety measures]) will result in quick denial of that individual’s direct participation in the UAS certificated activity. The FAA has long legal precedents that past violations constitute an adequate basis for denial of any discretionary grant of a privilege—which is what any UAS certificate is.

Admonition #1—after quickly consulting a knowledgeable attorney who knows the FARs, you might file an Aviation Safety Reporting Program voluntary disclosure of such an inadvertent action VERY soon after the event.

Admonition #2—pilots know, or should know, the FARs. When/if you are about to fly your UAS in violation of the relevant operating rules, you should be aware of that potential problem and take appropriate action. The average pilot does not know when UAS flying constitutes commercial operations. That’s an economic standard which divides Part 91 from Part 121 and 135 flights and the “exempted operations of Part 91 Subpart K”.

Anyone familiar with the FAA’s “cease and desist” orders issued to real estate agents, colleges, wedding photographers and even search and rescue UAS operators knows that what constitutes “for compensation or hire” is very, very complicated. The intuitive notion, that Company A uses its UAS for its own flights and does not pay any 3rd party to do so, fails under the FAA’s historic decisions on this subject. Suffice it to say that the FAA attorneys intentionally established a standard which allows them to conclude what are commercial flights, without and financial or economic analysis. Basically, and on a very elementary basis, if the UAS is used in a commercial venture (including college tuition, real estate fees of even charitable collections), then it is “for compensation or hire”.

What constitutes operating a UAS without the requisite FAA authority requires a law degree and extensive knowledge of the FAA decisions. Failure to meet that obtuse rule is proof positive to the FAA that the individual, who violated the commercial certificate (or exemption) requirement, is incapable of meeting the compliance disposition. No debate, no claiming ignorance. A finding that an applicant has displayed a positive history of adhering to the FARs is essential to the FAA’s discretionary decision to grant whatever UAS application is being sought.

Be careful out there. The FAA’s attitude toward inappropriate UAS flying is very hawkish.

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