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Anderson & Hughes P.C. Blog

Tuesday, May 23, 2017

Who's In Charge of Regulating Drone Hobbyists? The FAA or Local Governments? It's Anybody's Guess At This Point.

FAA Federal Regulatory Preemption of Drone Operations – Does It Really Exist for Small Operators?

We received a request in early May to defend a recreational drone operator with a municipal ticket for operating a drone in a city park. The ticket was non-descript and didn’t state a fine but only indicated the operator was being “charged” under a rather broad administrative local regulation. It also didn’t state if the “charge” was a felony, misdemeanor or petty offense. The ticket did however state that the operator was required to make a physical appearance in the particular Court of Jurisdiction on a specified date to defend against the ticket. The physical appearance was mandatory and failure to appear carried a maximum penalty of $1000.00 AND 90 days in jail.

These are the cases lawyers love. There is so much uncharted and arguable territory here for drone defense it’s not even funny. This is a case we would have taken pro bono, exclusive of costs…and that’s the whole point of this blog.

Facts: The operator (defendant) was on vacation in the jurisdiction when the alleged offense occurred. Desiring to do some aerial filming of the local landscape for vacation memories, the operator sought a wide open, unpopulated and desolate space in a large local park where no one would be bothered and no wildlife would be affected. Sometime after lift-off, the police showed up, informed the operator no drone flights were permitted in the park, and issued the curious ticket.

More details: The young operator lives far out of state and was not in any sort of financial position to travel to the jurisdiction to appear in court, spend money on at least one night in a hotel, rent a car, pay court and other associated costs to appear and defend against a ticket that likely wasn’t issued properly in the first place due to its lack of specificity and other legal technicalities. All that expense would be the operator-defendant’s responsibility. We were willing to take the case for free and not charge our normal defense fees.

Looking after the operator’s interests first and our desire as attorneys to tread into new judicial territory second, we investigated some administrative details and discovered the fine to plead guilty by mail and close this case would be $250.00. That’s about the same fine as an average traffic ticket in some jurisdictions.

So, where am I going with all this? Here’s where: Unless a defendant is well-heeled or wants to pick a fight and can afford that fight (even in a pro bono legal fee situation) it probably makes sense to pay the local fine and move on. Looking out for the best interests of this individual, we advised the operator to pay the fine and be glad the drone wasn’t confiscated. Had the drone been confiscated, it would have involved even more costs to regain forfeited property under the state’s Forfeited Property Statute.  The operator agreed and was happy with our advice.

My point? The advice we gave the operator made sense for that particular situation only. But I have great concerns other small drone operators will similarly not have the finances or desire to fight an obvious overreach on the part of local governments to place restrictions on what is federal airspace, from the ground to the sky.

The Problem: While local governments currently seem to be free to enact ordinances some may find comforting (ie. prohibiting nosey neighbors from peeping in windows with drones or general restrictions on local law enforcement drone operations enacted out of concerns for privacy), the small operator who is just out taking vacation pictures may end up getting caught up in a net of complex federal, state and local rules, regulations and ordinances. It may cost that recreational enthusiast serious money to defend a hobby, and that’s not right.

The legal battles are coming. But if you don’t have the money or the will to fight those legal battles, then in reality, federal preemption doesn’t exist for you and local governments will be free to regulate as they see fit, ticket as they see fit, charge as they see fit and collect money from recreational drone enthusiasts who aren’t guilty of anything.

In the interim, if you are going to operate a drone on public land of any sort (neighborhood streets included), even on a recreational basis, make a quick phone call to the local police to ascertain if the activity is permitted. At least save yourself the ticket fine. 

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