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Expert Interview Series: Jonathan Rupprecht of JRupprechtLaw.com About Drone Law
Jonathan Rupprecht is a commercial pilot, flight instructor, and aviation attorney focusing on drones who has authored/co-authored multiple books on drones and the law. We sat down with Jonathan to learn about the latest trends, laws, and court cases related to the fast-growing drone industry.
What attracted you to the practice of drone law?
Due to my background in the aviation field as a commercial pilot and flight instructor, I was interested in how this emerging technology was going to impact aviation. I originally got into drone law while working on an extensive research project in law school. I compared the integration of drones in Japan with the integration of drones in the United States. That research led me to publish my work as a book. The editor of an American Bar Association book on drone law read a draft of my book and invited me to write a chapter for the upcoming ABA book on drones.
At this point, I knew I wanted to practice in aviation law, but the question was a matter of when since the commercial drone market was not legally viable. In September 2014, the FAA issued the first set of 333 exemptions, and there was a need for attorneys to focus on drone law.
Why would someone need to seek out a drone attorney?
There are multiple great reasons.
A drone attorney can help you save time and money on the front end in helping you to develop your business plan so it will be legal and have lower risks. There are two aspects to planning: (1) planning for things to go well and (2) planning for when things go bad.
A great example of planning for things to go well is where I watched one guy do his own legal work and petition for a 333 exemption. He developed a business idea to do roof inspections with a drone at night. The big problem was that the FAA was not allowing commercial night flights so his business was completely not viable. He finds this all out about 6 months later. What was the value of those 6 months to him? Was it more than a 1-hour consultation with a competent aviation attorney?
A drone attorney can help steer clients away from the legally unviable business plans and optimize the legal business plans for the lowest costs and greatest flexibility. Also, a good aviation attorney can help you in attempting to obtain FAA approvals for certain types of drone operations that are not common. This can help give you an edge over your competitors and help your business plan.
When business planning, there needs to be the discussion of what is safe and smart for purposes of litigation. You should do things right at the beginning to set yourself up for the best defense in case something bad happens. It is cheaper to pay an attorney on the front end than to pay attorneys on the back end to fix problems either with regulatory compliance or when there is a lawsuit. However, well-thought-out plans can only do so much. In the unfortunate situation where something bad does happen, a drone attorney can help you minimize the damage while insurance can help pay for it.
For someone who just wants to buy a basic drone from a mass retailer, what types of federal regulations should they be concerned with?
If you are operating as a recreational pilot, you should study 14 C.F.R. Part 101. If you are operating commercially, study 14 C.F.R. Part 107. The FAA believes all aircraft over 250 grams should be registered either under Part 47 or Part 48. You should study both Parts to see which the best is for you. Keep in mind that the Part 48 registry is being challenged in the D.C. Circuit Court of Appeals by John Taylor because the FAA violated two Acts of Congress in its creation. If the suit is successful, the Part 48 registry could be thrown out and individuals would be required to register via Part 47.
Are the regulations different for custom-made, multipurpose, technologically-advanced, and/or larger drones?
How the drones are used generally determines what set of regulations apply. You could have the same drone being operated under different rules at different times. For example, a simple Phantom 4 could be flown recreationally under Part 101 and then later that day shoot a commercial gig under Part 107.
One thing different is for aircraft 55 pounds and heavier because they cannot fly under the Part 107 set of regulations. They will have to be approved by what is called a Section 333 exemption or obtain an airworthiness certificate. To date, only one aircraft over 55 pounds has been granted a Section 333 exemption.
Has there been any significant litigation or case law related to drone operation?
There have been a handful of cases. The first big case was the FAA v. Pirker case where the FAA went after an individual alleging that he flew his drone in a careless and reckless manner. That case was litigated and Pirker won the first case, but the FAA won the second case at the higher court. The case was settled, which left a lot of questions up in the air.
The FAA released a policy statement on model aircraft, and there were multiple lawsuits filed in the D.C. Circuit Court of Appeals challenging them because they appear to violate two acts of Congress. Unfortunately, those cases were paused until the final drone regulations were released. There has been no new activity in those cases since the release of the regulations.
The FAA issued some drone registration regulations that went into effect on December 21, 2015. John Taylor decided to sue the FAA to stop the implementation of the law. I agreed to help him out in his fight, and the case is currently pending in the D.C. Circuit Court of Appeals. That case will be answered sometime this winter to determine whether the registration regulations were created legally or not.
Two interesting cases worth pointing out are the Boggs v. Meredith case and the FAA v. Haughwout case. In the Boggs v. Meredith case in the Western District Court of Kentucky, Boggs is seeking to have the district court declare what navigable airspace is. The significance of this case is that it will be the first case dealing with how low a drone can fly legally over people’s property. The other case is the FAA v. Haughwout case playing out in the District Court of Connecticut, where the FAA fought to have a subpoena enforced against Austin Haughwout, who was the teenager who published the video on YouTube of a drone mounted at first with a gun and later with a flamethrower. The judge in that case just recently ordered the Haughwouts to answer the subpoena. It will be interesting to see where both of those cases go from here.
If a drone operator were to say to you, “I don’t need any drone insurance,” how might you respond?
If you are operating commercially, I think you should definitely get insurance because (1) it is smart to protect yourself and (2) it is normally required by customers. It is really not even up for discussion. No one, especially your customers, will take you seriously if you do not have insurance. If you are operating recreationally, you should take an assessment of where you fly to see if it is worth the extra cost.
How does drone insurance work?
Drone insurance is aircraft insurance. Most people don’t understand that many of their already existing types of insurance will NOT cover drones because drones are aircraft and most insurance policies exclude aircraft.
Aircraft insurance can protect you in two ways: (1) protecting you when you damage other people or their property and/or (2) protecting you from the loss of the aircraft. For a large majority of the industry, they only purchase insurance coverage to protect themselves in the event that someone is hurt or property is damaged. The reason most don’t purchase hull insurance to cover the loss of the aircraft is because most drones cost close to the amount of the deductible of hull insurance. It would only make sense with the more expensive aircraft to have hull insurance.
The normal starting limit of liability is $1 million, which costs around $1,000 a year. Some policies say that it is only for one aircraft, meaning you would have to purchase multiple policies for multiple aircraft; while other policies will insure the fleet, but only one drone can be flown at a time.
What types of occurrences could result in a drone operator being sued or charged with a crime?
It is becoming far more frequent now. Recently, the FAA released documents in response to a Freedom of Information Act request which showed 23 enforcement actions from the FAA against drone operators. The most common types of violations are careless and reckless operation of the drone and flying in certain types of airspace without meeting certain requirements. The FAA has stepped up going after drone operators not complying with the FAA’s view of the regulations, and has started fining them amounts from $1,100 up to $1.9 million total in fines. I anticipate we will be seeing many of these prosecutions in the future.
In addition to the FAA, state and local governments have started prosecuting individuals. Local law enforcement has arrested individuals for flying their drones as violations of non-drone laws such as trespassing, noise violations, careless operation, etc. What these cases almost always have in common is the drone operator acting in a questionable manner and law enforcement trying to figure out a way to charge the operator. Some states and local governments have passed drone laws and law enforcement has been citing people for violating their state or local drone laws. Multiple individuals have been arrested in Los Angeles and in North Carolina for drone law violations.
In the next five to ten years, what types of applications and activities will drones be used for in the U.S.?
Inspections will be one of the biggest uses for drones. Multiple industries are interested in using drones and have the cash and desire to do inspections. Three big sectors will be the utility, construction, and mapping industries. They all have a need to gather data for purposes of planning and monitoring. These three industries almost always require the drone operators to have insurance so that their infrastructure and people are protected. I’ve heard of minimum requirements being between $2 million and $10 million in coverage.
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