The FAA claims SkyPan International, an aerial photography company based in Chicago, flew 65 unauthorized flights between March 21, 2012 and December 15, 2014 over some of the most congested airspace in the country, including New York City and Chicago.
Further allegations include the aircraft’s lack of a two-way radio, transponder, and altitude-reporting equipment, SkyPan’s failure to obtain a certificate of airworthiness or registration for their aircraft, or a Certificate of Waiver or Authorization for the flights. The flights over New York supposedly took the aircraft into Class B airspace and “SkyPan operated the aircraft in a careless or reckless manner so as to endanger lives or property.”
It’s All About Timing
Now, these are all perfectly legitimate allegations. Every UAV the FAA allows to fly for commercial purposes must be equipped with certain hardware to ensure safe operation, have a registration number, avoid crowded areas and airports, and stay under 500 feet.
All of these practices are laid out in the FAA’s NPRM and must be observed if you want to legally fly your drone as part of a business.
However, the NPRM was first proposed in February. The FAA didn’t even have an official plan for how to introduce drone regulation until November, 2013 when it published its “Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap.”
So the question becomes: Can the FAA retroactively fine someone for UAV flights that happened nearly three years prior to any actual rules being written down?
When SkyPan supposedly started conducting the flights in question, there weren’t really any rules to break!
To the Courtroom?
You may remember the FAA has tried to levy fines like this before. The most famous case being that of Raphael Pirker. The FAA tried to fine him $10,000 for flying recklessly over a crowd, but a judge ended up siding with Pirker stating that drones are not “aircraft” the way the FAA wants them to be.
In the Pirker case, the lack of specific UAV regulation was the FAA’s downfall and, if SkyPan lawyers-up, we may see history repeat itself.
The other fallout from this new FAA circus could come from the fact that SkyPan applied and was approved for a Section 333 exemption just this past April.
The 333 exemption applications generally take two to three months to get processed which means SkyPan must have submitted its application right after the process for obtaining the exemption was outlined in February’s NPRM.
This willingness to play by the FAA’s rules (once they were clear and published) could really help SkyPan if they end up in a courtroom.
However, this could set an unfortunate precedent moving forward.
The 333 exemption is intended to permit and promote legal, safe UAV operations in the national airspace.
But Tuesday’s fine sends the message that if you make your business known to the FAA by applying for a 333 exemption, any and all of your previous flights could come under scrutiny and be subject to a fine.
FAA media spokesperson Les Dorr, while very prompt in responding to our request for information, didn’t offer much in the way of how the FAA obtained the details of the flights they are calling into question.
But even government employees have YouTube. And once your name goes on an application, they can go online and find every video you ever posted.
Could this scare people, who want to follow the rules, away from the process?
In any case, it shouldn’t the FAA be focusing its time on finalizing the regulations rather than attempting to fine businesses for allegedly illegal flights?
If the New England Patriots have taught us anything, it’s that rules need to be inescapably clear if you want to punish someone for breaking them.
Alan is serial entrepreneur, active angel investor, and a drone enthusiast. He co-founded DRONELIFE.com to address the emerging commercial market for drones and drone technology. Prior to DRONELIFE.com, Alan co-founded Where.com, ThinkingScreen Media, and Nurse.com. Recently, Alan has co-founded Crowditz.com, a leader in Equity Crowdfunding Data, Analytics, and Insights. Alan can be reached at alan(at)dronelife.com