Category Archives: Section 333

Chicago Drone Ordinance Proposal

Earlier this summer, we attended a meeting with City of Chicago officials about the proposed drone ordinance along with members of the Chicago Drone Users Group.

Yesterday, news reports indicated that a revised proposed ordinance would be headed to the full Chicago city council for a vote after minor changes.

Among other things, the proposed ordinance prohibits flights (other than Section 333 holders) over property that the operator does not own, without the property owner’s consent, and subject to any restrictions that the property owner may place on such operation; and goggles designed to provide a “first person view” (FPV) from the model or similar devices.

Drones in the park
Drones in the park

A copy of the current version of the proposed ordinance can be found here: DronesSubstituteOrdinanceVer8

We hope the Park District remains amenable to reasonable rules allowing city residents and visitors to enjoy their drone hobby in a safe, inexpensive manner, free of overly burdensome regulations

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Antonelli Law Surpasses 50 UAS Clients

We are incredibly grateful and proud to have achieved a list of quality clients doing interesting UAS work, which has surpassed 50 in number.

Thank you to our valued UAS clients. We look forward to continuing to grow our knowledge and business with you.

Above It All Aerial Solutions LLC
Aerial Inspection Resources
Aerial Inventory LLC
AeriFocus LLC
Angle of Attack
Arrow Aerial Precision LLC
Burns & McDonnell Engineering Company, Inc.
Certified Productions
CyberCAPTURE LLC
Digital Magic productions
Drone Experts
Ecamsecure
Frontier Geospatial
Fuscoe Engineering
Helios Imaging
Hover Effect LLC
iCam Copters
Indiana Aerial Solutions
Kovar & Associates
LA Drones LLC
LCAnderson.com LLC
LCP 360
Leading Edge Technologies
Nixon Engineering Solutions
North Georgia Drones
NWB Environmental Services
Omnitrax
Outrage Media
Owlcam
PIKA International
Richter Studios
Robo Aerial
Seiclone Surveys
Sky Eye Solutions
SkyCamUSA LLC
SkyFly Cinema
Skyway Recon
Snowy Owl Productions LLC
STV Inc
sUASNews
Tough Stump Technologies LLC
Tour Factory
TourFPV
Tower Inspection
UA TacSolutions LLC
Volo Pervidi LLC
Vortex UAS LLC

*Partial Client List Due to Confidentiality

 

If your company would like assistance filing a Section 333 petition or special airspace COA to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.

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Antonelli Law Utility Client Sky Eye Solutions Receives Section 333 Exemption Approval

Antonelli Law UAS client Sky Eye Solutions LLC received approval from the FAA on October 27th to operate the Instant Eye MK-2 GEN3 for aerial utility and infrastructure inspections and precision agriculture. The FAA approved the petition in 122 days.

Many have observed the FAA docket and Section 333 exemption process became log-jammed during the summer. This approval is the second of 20 Antonelli Law Section 333 petitions to finally break out of that log-jam.

A copy of the FAA Grant of Exemption under Section 333 can be viewed here: Sky Eye Solutions LLC – 13365

If your company would like assistance filing its own Section 333 petition to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.

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Antonelli Law Cinematography Client Hover Effect Receives Section 333 Exemption Approval

Antonelli Law UAS client Hover Effect received Section 333 exemption approval from the FAA on October 27th to operate the DJI Phantom 1, DJI Spreading Wings S800, Freefly Cinestar 8, and Freefly Cinestar 8 HL for closed-set motion picture and television production, and real estate. The FAA approved the petition in 122 days.

Many have observed the FAA docket and Section 333 exemption process became log-jammed during the summer. This approval is the first of 20 Antonelli Law Section 333 petitions to finally break out of that log-jam.

A copy of the FAA Grant of Exemption under Section 333 can be viewed here:Hover Effect LLC – 13366

If your company would like assistance filing its own Section 333 petition to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.

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Another Section 333 Copy/Paste Bites The Dust

Another Section 333 Copy/Paste Bites The Dust

We’ve written before about the hazards of bad Section 333 copy and paste jobs. Number one, they can void your insurance coverage when an accident occurs. Number two they can be rescinded by FAA. If you are not going to hire an attorney to file your Section 333 petition for exemption, please take the time to tailor it to your actual intended operations.

Yesterday, the FAA rescinded the Section 333 approval of a Mr. Thomas Johan Walter. Thomas-Johann-Walter-Rescission

From the FAA public document:

“On June 2, 2015, Mr. Walter submitted a petition for exemption to allow commercial operations of unmanned aircraft, on behalf of Drone Fleet & Aerospace Management, Inc. Mr. Walter was identified in the petition as the CEO of Drone Fleet & Aerospace Management, Inc., and as well as the point of contact; however, the email and mailing addresses provided for Mr. Simon Nielson. On September 2, 2015 the FAA granted the exemption to Mr. Walter and emailed its decision to Mr. Nielson at the email address provided in the contact information section of the petition. On September 2, 2015, Drone Fleet & Aerospace Management, Inc. notified the FAA, stating that Mr. Thomas Walter is not and has not been affiliated with Drone Fleet & Aerospace Management, Inc.

A review of Mr. Walter’s petition shows that Mr. Walter submitted, verbatim, the petition submitted by Drone Fleet & Aerospace Management, Inc. on October 3, 2014,  including the point of contact information on Page 14. Mr. Walter substituted his name for Drone Fleet & Aerospace Management, Inc. in only a few places.”

***

In consideration of the foregoing, I find that Exemption No. 12719 was issued based on erroneous information submitted by petitioner and was therefore granted in error. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113 and 44701, delegated to me by the Administrator, Exemption No. 12719 is rescinded effective immediately.”

For another Section 333 rescission example, see this one from August:  Kramer-Rescission-11629

If you would like experienced attorneys to file your Section 333 petition, please contact us through the contact form below or directly at 312-201-8310.

And if you do it yourself, please do not forget to copy, paste, and edit!

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Why Many State and Local Drone Laws Will Not Fly

 Why Many State and Local Drone Laws Will Not Fly

 Part One in a Series on Federal Preemption – Mark Del Bianco

The explosive growth in commercial and hobbyist use of drones (a/k/a unmanned aircraft or UAs) is creating fears among citizens and state and local officials about invasions of privacy and possible injuries or property damage. The result is a proliferation of laws and regulations designed to limit or prevent many commercial and personal uses of drones. It is obvious that many of these regulations will be struck down when they are challenged. However, this will be a lengthy, piecemeal process akin to legal whack-a-mole.

For those keeping score at home, or those just looking to predict outcomes, here are the grounds that courts will most likely use to strike down local drone regulations.  I’ll address each of them in more detail in future blog posts. Interestingly, the likely grounds for challenge will shift over time, as more comprehensive federal regulations come into effect and improvements in technology enable longer drone flights and greater payload capacity.

  1. Conflict Preemption

For the next few years, conflict preemption will be the most likely basis for striking down state and local drone regulations. Conflict preemption is a doctrine created by courts to sort out conflicts that regularly arise in the U.S. Under our federalist system of government, legislative bodies at different levels of government can enact laws or regulations that address identical or overlapping issues or behavior. When the laws or regulations impose different requirements, or when one law permits and another prohibits certain behavior, a conflict arises. People and companies affected by these discrepancies need to know what they can and cannot do.   That’s when they ask courts to step in and clarify their obligations.

The federal regulations governing commercial drone use are in flux right now. The FAA has both a process for obtaining one-off exemptions for commercial use of small UA systems (sAUS) (the 333 exemption process) and an ongoing proceeding to establish comprehensive rules for commercial use of sAUS. It hopes to finalize the rules before the end of 2016.

Once the more comprehensive federal rules are in place, conflicts with new and inconsistent state and local laws while inevitably increase. Look for conflicts preemption challenges to state and local laws to proliferate in the next few years. Examples of state enactments that raise potential conflicts preemption issues are the 2015 Virginia drone law and California’s SB 142, which was recently vetoed by Gov. Jerry Brown. The FAA has specifically permitted hobbyists and holders of commercial Section 333 exemptions to make drone flights at altitudes up to 400 feet above ground level (AGL) for a variety of purposes. SB 142 would have made most such flights illegal if they took place in California and were below 350 feet AGL. The potential conflict was clear – SB 142 would have created civil liability for flights that the FAA has already determined to be legal (and which would continue to be legal once the sUAS rules go into effect). Had Gov. Brown not vetoed the bill, a challenge on conflicts preemption grounds would have been swift and likely successful.

  1. Express Preemption

In the ongoing sAUS rulemaking, several parties have asked the FAA to include an express preemption provision in the new rules. Such a provision would affirmatively state that the new federal rules are intended to preempt state laws and regulations applicable to the operation of drones. If the FAA does decide to include a preemption provision – and there is no guarantee that it will – the scope of the preemption language will be crucial. It could range from near-complete preemption to a preemption of just certain types of state regulation, such as flying height restrictions or aircraft marking requirements.

  1. Field Preemption

Another possible basis for a court to strike down a state or local drone law is the doctrine of field preemption. This doctrine is applied when a court concludes that (even in the absence of an express preemption provision) the federal regulatory scheme sufficiently pervades a particular subject area that it was the intent of Congress or the implementing agency for federal law to occupy the entire field and to preclude state or local action. In general, the breadth of any field preemption argument depends on the specificity and comprehensiveness of the federal regulatory scheme in question. The more specific and comprehensive the federal law or regulations, the more likely a court is to find field preemption.

Courts have to date found relatively broad, but not total, field preemption in the federal regulation of aviation. They generally acknowledge the pervasive power of the federal government to regulate aircraft safety and crew qualifications, but have recognized a more limited preemptive scope in areas such as products liability actions. It is safe to say that the strength of any field preemption argument will depend on the scope and comprehensiveness of the sUAS regulations whenever they finally go into effect.

  1. First Amendment infringement

Numerous state and local ordinances are being introduced to address citizens’ privacy concerns and to limit private parties’ ability to use drones to capture data (often referred to in the laws as “conducting surveillance”). There is an inherent tension at all levels of government between privacy and various First Amendment freedoms, including freedom of the press and the right of individuals to gather information, as part of speech or a precursor to it. For example, in recent years, numerous courts have recognized First Amendment protection for videotaping and audio-recording police and private individuals in and around public spaces. The logic of these cases theoretically applies to data acquisition that takes place when a drone is in public airspace, even if the activity about which the data is being acquired is taking place on private property.

There are numerous examples of existing or proposed state laws that are potentially vulnerable to First Amendment challenges. One is House Bill 5 introduced in Georgia this year, which provides that “(a) It shall be illegal for a person to use an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on such individual or property.” This provision is almost certainly unconstitutional, because it imposes overly broad restrictions on fundamental First Amendment rights. It makes the violation dependent on the intent of the actor, singles out one type of technology – UAs – while permitting the use of other types of technology (e.g., ladders, manned aircraft and satellites) to “capture an image” or otherwise conduct surveillance, and does not require that the surveilled party have any, much less a reasonable, expectation of privacy.

The potential for conflicting laws and regulations will only increase over the next few years. Within that period, technological developments will enable longer and autonomous flights by sAUS. Many of these, particularly in large metropolitan areas such as New York, Chicago or Washington, D.C. that border more than one state, while be interstate flights. While the pending FAA regulations will not permit autonomous sUAS flights or flights beyond the operator’s line of sight, the FAA will inevitably revise its rules to permit such flights, probably within 3-5 years. Once the FAA rules are revised, other grounds for striking down state and local laws will come into play. For example, a state that prohibited drones with data acquisition capability (which would be all drones) from flying over private property in the state would arguably violate the Interstate Commerce Clause by imposing unjustifiable burdens not only on a wide swath of interstate commerce originating or terminating in the state, but also on substantial amounts of commerce between other states, commerce which would be burdened by not being able to take a direct route and fly over the enacting state.

About Attorney Mark Del Bianco 

Attorney Mark Del Bianco is Special Counsel to Antonelli Law’s DSC_2812Drone/UAS Practice group. Mark has more than three decades of experience representing clients in federal administrative rulemaking, enforcement proceedings, and court reviews at the DOJ, ITC, FCC, FDA, CPSC, and NHTSA. He has litigation experience ranging from state trial courts to case briefs in the United States Supreme Court, and in recent years has litigated the constitutionality of state laws at the intersection of technology and privacy. He also provides transactional and regulatory assistance to a wide array of clients, including fiber networks, satellite service providers, business owners, application developers and cloud services providers.

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Join the UAS attorneys at Antonelli Law October 5-7 at the Commercial UAV Expo at Caesar’s Palace

Join the UAS attorneys at Antonelli Law October 5-7 at the Commercial UAV Expo at Caesar’s Palace and learn how we’ve helped our clients with Section 333 approvals and beyond in the GIS, power infrastructure, engineering, and construction industries.

We are at Booth 412 http://www.expouav.com/exhibitor-list/

Antonelli Law –

Meet Our New Client Concierge Olivia Fowler

Meet Antonelli Law’s Client Concierge Olivia Fowler

Olivia is the Drone/UAS Practice Group’s Client Concierge, acting as liaison between our clients and attorneys. Her duties include informing clients of the progress of their Section 333 exemption petition and related legal projects, and assisting the attorneys to collect needed information.

Olivia’s organizational and clients skills are a tremendous asset for our clients, helping to keep them informed of the status of their FAA  petitions.

Olivia Fowler Antonelli Law Client Concierge
Olivia Fowler Antonelli Law Client Concierge

Section 333 Templates And Sloppy Copy/Paste Jobs Can Jeopardize Your Insurance Coverage

I am the first, and perhaps only, lawyer who publicly stated you do not have to be a lawyer to file a Section 333 petition with the FAA for commercial UAS operations – I did this even before the FAA began its Summary Grant process.

What I have said is that hiring a law firm to prepare your petition can save you a great deal of time, leave you knowing the petition has been done correctly, and that the petition is right for the proposed operations you will actually be performing.  Plus, you started a relationship with a lawyer who can help you with your post-333 needs.

However, we are seeing folks sloppily copying other companies’ petitions without regard to their content (Eg.: “UAV is the Inspire…flight time is 40 minutes”). Perhaps some of this is coming from companies with non-attorneys selling templates online.

However these errors are occurring, though, the danger in submitting a Section 333 petition that does not match how you actually run your operations, even though it becomes approved by the FAA, is in the event there is an accident your commercial UAS insurance may deny you coverage for the accident claims.

This  is because the Section 333 approval you provided to the insurance carrier in your application for coverage contains the text of your petition as well as the manuals you submitted – and are part of the conditions of your FAA approval. Moreover, the Section 333 is part of the factual representations made to the insurance company. The insurance carrier reviewing the accident claim may notice that your operations are not what you represented them to be in the copy and paste job/Section 333 template – and then deny you coverage.

So, if you cannot afford to hire a lawyer to do it for you, do yourself a favor and take the time to tailor your Section 333 petition to the real operations you will be performing. The days you spend doing this work is a far cry from the stress and possible financial consequences you could face taking short cuts that could leave you not only in trouble with the FAA, but also on the scary end of a hook for personal injury lawsuit judgments and attorneys fees.

Note: In my prior work as an attorney I have worked for insurance company clients and participated in litigation involving insurance coverage. If you want to learn more about how an insurance company can legally deny you coverage, just google “insurance coverage declaratory judgment action.”

Disclaimer: None of the information in this website including this blog post is legal advice. Please consult an attorney if you have legal questions. This website is attorney advertising.

 

Antonelli Law UAS Client Richter Studios Receives FAA Approval

Antonelli Law UAS client, Chicago’s Richter Studios received approval from the FAA on August 11th to operate the DJI Inspire 1 for aerial cinematography. The FAA approved the petition in less than 90 days.

To contact Richter Studios visit http://www.richterstudios.com/

A copy of the FAA Grant of Exemption under Section 333 can be viewed here: Richter Studios – 12422-1

If your company would like assistance filing its own Section 333 petition to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.

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