The FAA launches special emphasis program on drone enforcement
This past January, the FAA issued a change to its Compliance and Enforcement Program announcing a special emphasis program targeting “UAS operations that endanger the public, violate airspace regulations, or further a crime.” This program was mandated by a presidential Executive Order and requires legal enforcement action for any drone operations that fall within these targeted areas. Despite an aggressive effort by the FAA to raise the awareness of airspace and flight restrictions that apply to drone operations–such as where they can and cannot fly, and registration and identification requirements–the number of violations has not diminished. Additionally, the fear of a tragic outcome due to an uninformed operator has grown.
When announcing the program, the FAA stated that it is intended to expedite and increase enforcement actions against UAS operators and to thereby incentivize drone operators to follow FAA regulations. For years, the FAA had been working to educate the drone community about the regulatory requirements that apply to drone operators, whether operating the drone for personal interests or in furtherance of a business. For too long, many drone operators did not fully understand that the U.S. government considers drones to be aircraft and they share the national airspace with other aircraft. Rules, followed by all flyers, are needed to allow for the safety of all aircraft being operated in shared airspace.
Except in extremely limited circumstances, the FAA will no longer have discretion to treat drone operations violations through non-punitive compliance actions, as they had been doing in an effort to bring drone operators into compliance through educational and remedial methods. Now, these drone violations will only be handled with civil penalty sanctions and, if the pilot is a Part 107 holder, suspension or revocation of their remote pilot certificate. In cases where certificate revocation is appropriate, the policy specifically authorizes a civil penalty as an additional punitive sanction. For Part 61–which covers manned aircraft pilots–the FAA can suspend or revoke Part 61 pilot certificates for drone violations. The FAA maintains that this increased enforcement will “incentivize” compliance through deterrence going forward and will “incentivize” the violator to admit wrongdoing sooner to avoid a lengthy appeals process.
New FAA Settlement Authority: Faster Cases, Less Due Process
As part of its stepped-up enforcement against UAS operators and knowing how long it can take the FAA to fully investigate, analyze, and take an enforcement action against a drone operator, the FAA is putting into place a new settlement policy that expedites its enforcement action in certain drone cases:
The Drone Expedited and Targeted Enforcement Response (DETER) Program is intended to:
expedite and increase enforcement actions against small Unmanned Aircraft System (UAS) operators who violate Federal Aviation Administration regulations [FARs]. The program establishes prompt settlement procedures for certificated and noncertificated UAS operators who are individuals, first-time violators, and meet the eligibility provisions of the policy.
In order to have the ability to expedite their enforcement action, the FAA will conduct a significantly scaled down investigation of the purported conduct. Then, they will allow the drone operator to resolve the matter by accepting that the FAA is correct in its initial allegations and agreeing to submit to the FAA’s choice of sanction. The policy essentially eliminates a drone operator’s opportunity to respond to allegations of violations and challenge them through an administrative or judicial appeal. In return, the drone operator receives what the FAA claims will be “a significantly reduced civil penalty or serve a significantly reduced certificate suspension period, as applicable, in exchange for quickly resolving the matter and paying the reduced civil penalty or submitting to the reduced suspension period.”
Under this new policy, the FAA will send a violation notice that states the civil penalty to be paid and/or the suspension period to be served and any other corrective actions the operator is required to complete.
Violators will not be permitted to negotiate the sanction or the corrective action. A drone pilot would have 10 days to accept a settlement offer and acceptance of the offer would constitute a finding of violation that would be recorded on the drone pilot’s FAA record. This will create a violation history that will remain on the pilot’s record for the duration of their life. Additionally, accepting the offer would require the pilot to waive any appeals or lawsuits against the FAA or its personnel.
Unfortunately, this program will deprive drone operators of their ability to argue the merits and the mitigation that may apply to their case. The FAA is counting on operators being tempted into a better deal by admitting to the FAA’s view of the case and forgoing their right to a fairly considered case. Though many are rightfully suspicious about this new program, this could be both a good thing and a bad thing. There may be instances when an operator probably has no defense and they are guilty of operating a drone in a way that they shouldn’t have. With this approach, now the operator has been educated and knows better for the future. At the same time, there have been enough of these cases over the decades to know that a defense to the allegations and compelling mitigation factors do not become clear until the matter is looked at more closely. If persuaded by the FAA’s offer of a deal, it could be impossible for a drone operator to overcome the FAA’s arguments altogether.
The FAA’s settlement policy would apply only when and where the FAA determines is appropriate. Initially, the program will “focus on select locations during periods in which a high volume of UAS operations are expected. Operations in locations and times not covered by the DETER Program are subject to the FAA’s regular legal enforcement action process.”
This settlement authority would not be applicable to violations that involve:
- Alcohol or drug-related offenses;
- Weaponized drones;
- Operations involving criminal activity unrelated to regulatory violations (e.g., the carriage of narcotics, assault, photographing sensitive military installations, harassment);
- Operations involving a Temporary Flight Restriction (TFR) issued under Part 91.141 [VIP TFRs];
- UAS operations involving particularly egregious conduct; or
- UAS operations demonstrating a lack of qualifications to hold a remote pilot certificate.
What Drone Pilots Should Do Now
With increased FAA enforcement on the horizon, drone pilots should review all of their operations and ensure compliance with the regulations. They should pay special attention to airspace regulations and TFRs, flights over people without compliance with the FARs, and any flights that would be considered careless or reckless operations. Drone pilots should stay proficient as changes occur rapidly and often with little notice; operations in furtherance of a crime are unacceptable.
Drone pilots should also review what to do if questioned about their operations by an FAA inspector or a law enforcement officer. Always be polite, and remember that drone pilots have a right to protect their own best interests.
- Pilots should ask to see the inspector or officer’s credentials to be sure of who is asking questions.
- If requested, pilots are required to produce their drone registration, pilot medical certificates, and state or federal photo ID for inspection. Drone pilots should carry printed copies so they don’t have to hand over their smart phone.
- Drone pilots are not legally required to answer any questions. Many enforcement cases against drone pilots have been made using admissions made by the drone pilots at the time that they are stopped and likely feeling most intimidated.
- If pilots answer any questions, they should be objective, factual and truthful.
- If requested by an FAA inspector, pilots are legally required to allow an inspection of their drone.
- In the event that the pilot is arrested, it is advisable for them not to answer any questions or offer any information until they are able to consult with competent counsel.
- Drone pilots should make a record of what occurred as soon after as possible.
- Drone pilots should file a NASA report within 10 days of the operation; they can file electronically here.
If a call or letter of investigation from the FAA is received:
- Pilots are not required to respond but if they do, anything said or written can be used against them.
- Drone pilots should request all releasable information in the FAA’s file on them, including any air traffic information, if relevant.
- If it’s affordable, drone pilots should consult with an attorney familiar with FAA enforcement before responding.
If a settlement offer is received under the new DETER policy:
- For strictly recreational pilots who have no intention of flying commercially in the future, consider the benefits of the settlement offer if the drone was being operated on the date and time in question in violation of the FARs.
- For those holding any pilot certificates or those who plan to fly commercially in the future, carefully consider the impact of having a FAR violation on record before agreeing to a settlement under the DETER program.
- Drone operators should consult with competent counsel before accepting the offer. It would be helpful to pilots in making a decision to consult with an attorney familiar with FAA enforcement cases. Keep in mind that this would have to be done within the 10 days that the FAA allows.
Is a Legal Service Plan Worth It?
With the threat of increased drone enforcement, Part 107 pilots may want to consider the benefits of a legal services plan, as many manned aircraft pilots have for decades. One such plan is offered by AOPA, the Aircraft Owners and Pilots Association.
