Category Archives: UAS

AUVSI, AOPA Mention Antonelli Law Drone/UAS Practice Group

It has been a very busy time for Antonelli Law.

Last week, Jeffrey Antonelli spoke at the sUASB Conference in San Francisco on the state of the FAA Reauthorization Act and our clients’ experience living with the constrictions of Section 333.

This week, both AUVSI and AOPA ran stories on our firm, including one mentioning Antonelli Law’s participation in the DJI Professional User Referral Program (below).

If you are attending AUVSI’s XPONENTIAL trade show and conference in New Orleans, please visit us at Booth 371 to meet the attorneys who elevate our practice. It is our third year exhibiting at AUVSI’s annual conference. We look forward to continuing to grow our practice and clients along with the rest of this amazing UAS industry!

 

AUVSI ANTONELLI BOOTH 371

 

Your Help is Needed NOW to Protect UAS Industry in Congress

Your Help is Needed NOW to Protect UAS Industry in Congress

Congress is currently in that famous “sausage-making” stage of creating new laws regarding the commercial (and hobby) use of drones. Your help is needed to persuade our lawmakers to make good decisions that will help our industry thrive.

Please consider supporting the express federal preemption ban on local “drone laws” by clicking here:

Please also consider supporting Senator Inhofe’s amendment to protect the model aircraft hobby by clicking here.

Why Your Help Is Needed

While many of us have heard of federal preemption over states and local governments regarding airspace, some in Congress want to allow states and local governments the freedom to pass their own drone laws. Senator Dianne Feinestein (D CA) is an example.

While federal preemption is already in place for airspace, putting in an express preemption provision in the FAA Reauthorization Act could make quick(er) work to fight what has become a “whack-a-mole” of local drone laws popping up all over the country. Without a good case going up to the US Supreme Court fighting these local drone laws (and that takes YEARS and has much uncertainty) many local entities may be stubborn and try to keep their local drone laws on the books with local enforcement actions on the books.

Here is the Opportunity to Help

The US Senate 2016 FAA Reauthorization bill contains a provision called Section that expressly says the following:

“No State or political subdivision of a State may enact or enforce any law, regulation, or other provision having the force and effect of law relating to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.”

Senator Feinestein has introduced a bill that “would preempt state and local laws relating to the operation of drones. These laws would be preempted even if FAA does not take action to address the growing problem of reckless drone use. According to the National Conference of State Legislatures, 26 states have enacted drone laws and 41 states have considered laws in the 2016 legislative session.”

The manned and unmanned airspace industry is fighting back. A group of ten industry groups including DJI, AOPA, and AUVSI have written a letter to all US Senators to “[oppose] Sen. Feinstein’s amendments #3558 and #3650 or any other amendment that would change or strike the federal preemption provision, section 2152, of the FAA Reauthorization Act and put safety at risk.

Contact your US representative and advise them on why these actions to support the UAS industry are needed, the jobs it will create, and the safety arguments against a patchwork of local drone laws across the land.

If you have any questions or would like our help in your efforts to lobby Congress, please contact us through the form below or call Jeffrey Antonelli at 312-201-8310.

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FAA Expands Online UAS Registration to Include Commercial Operations

FAA Expands Online Small Unmanned Aircraft Registration

From the FAA:           Register here.

FAA: Thursday, March 31 – Starting today, owners of small unmanned aircraft systems (UAS) used for commercial, public and other non-model aircraft operations will be able to use the FAA’s new, streamlined, web-based registration process to register their aircraft. The web-based process will significantly speed up registration for a variety of commercial, public use and other users. Registration for those users is $5, the same low fee that model aircraft owners pay.

“Registration is an important tool to help us educate aircraft owners and safely integrate this exciting new technology into the same airspace as other aircraft operations,” said FAA Administrator Michael Huerta.

All owners of small UAS used for purposes other than as model aircraft must currently obtain a 333 exemption, a public certificate of authorization or other FAA authorization to legally operate, in addition to registering their aircraft. Before today, the FAA required all non-hobby unmanned aircraft owners to register their aircraft with the FAA’s legacy aircraft registry in Oklahoma City, OK.

 Those owners who already have registered in the legacy system do not have to re-register in the new system. However, the FAA is encouraging new owners who are registering for the first time to use the new, web-based registration system. Owners who register under the new system can easily access the records for all of the aircraft they have registered by logging into their on-line account. Small UAS owners who have registered under the web-based system who intend to use their aircraft for purposes other than as model aircraft will also need to re-register to provide aircraft specific information.

 The FAA first opened up the web-based registration for model unmanned aircraft owners on Dec. 21, 2015. The agency is expanding that existing website to accommodate owners of aircraft used for purposes other than model aircraft. This registration process includes additional information on the manufacturer, model and serial number, in addition to the owner’s physical and email addresses. Like the model aircraft registration process, a certificate is good for three years, but each certificate covers only one aircraft.

Register here.

FAA Doubles Blanket UAS COAs to 400 Feet

The FAA today announced that it is increasing the allowed altitude for commercial UAS “blanket” COAs from 200 to 400 feet.

It is unclear whether the action will be retroactive to those who previously received blanket COAs for up to 200 feet in altitude for their Section 333 commercial operations. The newest 400 foot COA document can be found here.

FAA logo

 

 

 

If you would like assistance obtaining a Public Agency COA, standard COA for operations near airports or for altitudes above 400 feet AGL, or a Section 333 exemption for commercial UAS,  contact attorney Jeffrey Antonelli at 312-201-8310 or use the contact form below.

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The Value of Antonelli Law – Section 333 and Beyond

The Value of Antonelli Law – 333s and Beyond

Yesterday, Antonelli Law announced our new 2016 pricing for Section 333 petitions – just $1,500 for most Section 333 petitions.  The response has overall been very positive.

A few folks questioned us as to the value of having an attorney do it at all. This inspired us to spell out the following reasons for having not just any attorney, but the attorneys at Antonelli Law help you with your Section 333 petition.  In other words, we decided to lay out the “value add” for hiring a lawyer at Antonelli Law.

1. Save Time. Many people take longer to put together the 333 on their own because they don’t have the 9-5 time slot available to work on the petition – they are busy with their own jobs and starting a company. Putting 333s together is our job.

2. Accuracy. Our 333s are accurate – it’s shocking the number of petitions with sloppy copy and paste jobs, incorrect flight times, etc. Ours are right the first time. A lot of folks hire Antonelli Law because the delays incurred with FAA requests for additional information means more days without dollars going into their pocket.

iCam Copters
iCam Copters’ Mike Conrady and their FAA approved custom UAV , carries the Red and other high-grade professional cameras

3. We like advertising our clients’ successes. For our clients we often make blog announcements, do press releases about, and at prominent drone trade shows show our clients’ videos, pass out their pamphlets, and include their videos and pamphlets in the  firm media kit given to the press. We have even hosted a number of clients at our booths at the trade shows to help them drum up business for themselves – at no cost to them.  We think that’s a great deal of value.

San Jose Booth Interest
Antonelli Law attorneys (l to r) Benjamin Fink, Amelia Niemi (thumb’s up!), and Mark Del Bianco at our crowded booth at San Jose. Jeffrey Antonelli is taking the photo.

4. We love what we do and others can tell.

 

 

 

 

 

5. Our relationships with many in the industry helps us keep current and we learn of opportunities for our clients as well as ourselves.

Rich Hanson of AMA & our Aviation Consultant Doug Marshall San Jose conference

 

 

 

 

Commercial UAV Booth
Antonelli Law attorneys Amelia Niemi and Melissa Brabender

6. N-Number registration is included. For commercial UAS the FAA system is still paper-based and is frustrating to navigate for many.

7. Advocating on behalf of our clients – our clients who started with us for a Section 333 petition now have someone to call who’s following up with the FAA, monitoring the docket every day for updates, and – if something were to go wrong – has existing relationships with many folks at the FAA to follow up with them.

Conclusion

While it is true many people have been able to successfully submit 333 petitions on their own, we have also seen that many are bad copy and paste jobs that do not match their actual operations. This opens the operator up to civil and governmental liability. If you have the time and ability to do it correctly yourself, go ahead and do it.

If you would like a relationship with seasoned attorneys who love commercial drone technology and have established legal practices beyond Section 333 to help you get and keep your business in the air, call Antonelli Law for a free initial consultation at 312-201-8310 or use the contact form below. In addition to Section 333 petitions and special COAs we provide solid help with technology privacy issues, contracts, NDAs, trademark, copyright, and litigation services.

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2016: Most Section 333s Just $1500

For 2016 Antonelli Law has lowered its legal fees for most FAA Section 333 petitions to $1,500. Custom manufactured UAVs and special airspace permissions are additional fees but are still very fair. One commercial FAA N number registration is included in the fee.

For most Section 333 petitions, our accumulated databases of research from September 2014 when we filed our first petition is allowing us to proceed more efficiently than ever.  We do not want people to be excluded from obtaining competent advice and turning to generic forms which do not reflect their actual operations. This can lead to insurance denials in the case of an accident as well as receiving FAA violations.

For more information or to obtain a free initial consultation with an Antonelli Law attorney, call us at 312-201-8310 or use the contact form below. In addition to Section 333 petitions we provide special COAs, contracts, NDAs, trademark, copyright, and litigation services.

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FAA Fact Sheet on State and Local UAS Regulations: Prelude to Odysseus’ Revenge?

FAA Fact Sheet on State and Local UAS Regulations: Prelude to Odysseus’ Revenge?

While the FAA has been working on its small drone regulations, States and local authorities have been passing legislation purporting to regulate the operations of drones. In Greek mythology King Odysseus of Ithaca spends twenty years abroad, the first ten years conducting the Trojan War and the second ten years returning home – engaging in a variety of dalliances along the way, even passing through Hades. Upon his return, Odysseus is surprised to find how things had changed in his twenty year absence and learns of those who had been defying his authority. In one reading of the myth Odysseus exacts horrible revenge.  The FAA’s December 17, 2015 Fact Sheet entitled “State and Local Regulation of Unmanned Aircraft Systems (UAS)” may not be committing the murderous rampage of Odysseus, but it bears some resemblance because in it the FAA asserts its sole authority in most matters to regulate the national airspace rather than local and state authorities. The guiding principle here is federal preemption.

The Fact Sheet provides two types of state or local laws regulating UAVs for which “consultation with the FAA is recommended”: (1) operational restrictions on “flight altitude, flight paths; operational bans; any regulation of the navigable airspace;” and (2) mandating equipment or training for UAS related to aviation safety, which would likely be preempted. The Fact Sheet contains citations to federal case law indicating that the FAA is the boss, not state or local governments:

Operational UAS restrictions on flight altitude, flight paths; operational bans; any regulation of the navigable airspace. For example –a city ordinance banning anyone from operating UAS within the city limits, within the air space of the city , or within certain distances of landmarks. Federal courts strictly scrutinize state and local regulation of overflight. City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973); Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1117 (9th Cir. 2002); American Airlines v. Town of Hempstead, 398 F.2d 369 (2d Cir. 1968); American Airlines v. City of Audubon Park, 407 F.2d 1306 (6th Cir. 1969). (Emphasis added).

States and local authorities who have attempted to pass legislation that fall into the first category have widely been criticized. In September 2015, California Governor Jerry Brown vetoed SB 142, which would have banned UAV flights below 350 feet AGL over private property due to concerns over burdensome litigation and new causes of action. Chicago Mayor Rahm Emmanuel, unfortunately, has not taken similar steps regarding the recently-passed Chicago Drone Ordinance. Without the Mayor’s veto (unlikely at this point, especially given the political pressures he and the city are currently facing), the Ordinance will ban all hobby or recreational operations within the city unless the property owner has given permission for the flight. In addition, flights over school yards – and all flights flown by first person view (FPV) goggles are banned– even with tiny drones that fit in the palm of your hand. Such laws have been widely criticized because of the real potential to stifle the nascent drone industry and may be particularly punitive, especially for operators from out of state who may have difficulty navigating these varying state and local laws.

Having a federal authority, rather than a mishmash of state and local jurisdictions, issue standard requirements makes sense. The importance of having a single agency oversee the national airspace cannot be understated. In his excellent legal history of aviation, Who Owns the Sky author Stuart Banner traces the debates which took place a hundred years ago in the first Golden Age of Aviation regarding authority to legislate airspace. Prior to the creation of a new federal aviation agency, questions were raised as to pilots’ having to know the various states’ laws as they crossed state boundaries. Serious suggestions were made to institute having high-flying balloons alerting  airplane pilots of the state line boundaries. How else to know where each state’s jurisdiction ended and another state’s began? Each state’s regulation of flight differed from the next.

In the Fact Sheet, the FAA states:

“Substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. If one or two municipalities enacted ordinances regulating UAS in the navigable airspace and a significant number of municipalities followed suit, fractionalized control of the navigable airspace could result. In turn, this ‘patchwork quilt’ of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow. A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system.” (Page 2, emphasis added)

States and local municipalities may be well-meaning, attempting to pass legislation to quell reasonable (and sometimes unreasonable) citizens’ concerns and to protect the public against unsafe operators. The FAA acknowledges that states and local authorities may pass laws “traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations.” But having a standardized, federal set of rules to follow is a very important and achievable goal. Even though the FAA has yet to make any real progress into filling the void, its recent Fact Sheet is a reminder to state and local legislative bodies that they should not attempt to do so.

 

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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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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