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How to Evaluate a Drone Law Attorney in 5 Easy Steps *

How to Evaluate a Drone Law Attorney in 5 Easy Steps*

By Jeffrey Antonelli, Antonelli Law

I was recently given some free advice from someone who works with a legacy international company that is a household word. He is also a serial entrepreneur and he gave me some unsolicited, helpful advice.

He told me I should increase my Google ranking by having articles published (outside of this blog) with certain appropriate keywords – like drone lawyer, drone law, UAS – and sprinkle them throughout several times in the content so that search bots “feel” its right. Oh, and to have those articles link back to our law firm website at Antonelli-Law.com. 

I know he is right. That will probably work. During the Great Recession I accepted a dinner-with-a-catch function sponsored by American Family Insurance. That very nice dinner included some helpful hints to writing blog content. One of those pieces of advice was to include a number in the headline like 3 Ways to Catch Your Spouse Cheating, The Top Ten Hollywood Actors Who Have Gotten Fat, or How to Evaluate a Drone Law Attorney in 5 Easy Steps.

One of the things that motivates me personally, a core value if you will, is my authenticity. I have the freedom in my law practice to actually implement authenticity in my practice since it is my own firm. I require it and related behaviors including honesty in everyone I hire and associate with. It is even in the legal contract all my employees must sign to be a part of my firm.

Now that drone law is not new as it was in January 2014 when I launched our drone law practice (March 2014 PR here) there seems to be a lot more competition from other lawyers –  including some I have my doubts about. That is to be expected with something that is often in the news and thought of as a “hot” area like drones .  Some I don’t mind and they should be fine – I see some lawyers who are manned aviation pilots, and that makes sense for drones. But I see others who are clearly in it to make a buck only (my opinion) including copying the motivation that I and a certain much more famous drone lawyer who is no longer in private practice have had – flying RC planes – by using RC planes as props.

I think my passion for flying drones and rc planes and the really intriguing technology that brought me to drone law in 2013 including flight stabilization and fpv will continue to push me to keep learning and be on the cutting edge. I remember watching someone at my flying field with a multirotor perhaps in 2012. How was he controlling each of the motors at one time? That made me eventually learn about flight controllers and their inception at least for the hobby folks, using components from their game consoles and cell phones.

One of my former bosses, who had been a capital partner at a very large law firm, once told me that for lawyers to do a great job it often means putting in a real effort to dig deeply. This might mean checking more legal cases, taking another deposition, and cross-checking testimony from a number of different people. In drone law, I think it means continuing to delve deep into the regulations (proposed and final); maintaining and growing relationships with subject matter experts far and wide in aviation, government, law, and technology; and attending the substantive meetings at conferences where the real experts of technology are talking, not just the fun demonstrations of robots, selfies, and media opportunities.

But it also means going back to what got me started in this field – flying fixed wing rc airplanes. I will never do the incredible things my friend Kevin does here, but it is something I enjoy and it brings together friendship, sunny skies, and flying.

One of the things that drone law will be called upon to answer are the concerns about privacy. I don’t think many law firms throwing their hat into the “drone law” ring will have much to say about it. One thing that I think makes my drone law firm great is my co-counsel Mark Del Bianco. Mark holds the Certified Information Privacy Professional/US designation from the International Association of Privacy Professionals. Mark has been involved with the internet, cloud, telecommunications law and privacy for a long time.

Now that the FAA Reauthorization Act may be requiring  drone manufacturers to obtain software certification and other regulatory approvals, the industry is going to need serious guidance from seasoned, respected professionals. I am pleased to have Douglas Marshall with us. Doug is one of the very top UAS and aviation consultants in the country. He is currently chair of the ASTM F38.02.01 Task Group on Standards for Operations Over People, and serves as a United States delegate to ISO TC 20/SC 16, UAS Subcommittee. We are lucky to have him in our corner.

I think larger fixed-wing UAS is going to be a major area of development, and folks with just general aviation experience aren’t going to cut it.  Federal Express is expressing desire for unmanned cargo jets, and agriculture and energy infrastructure needs high endurance aircraft to survey hundreds – and possibly thousands – of miles of pipeline and towers. That means larger fixed wing, probably in the hundreds to thousands of pounds.  The experience of professional pilots like our Kate Fletcher are going to be the ones in the room that get paid attention to. In addition to being an attorney, Kate has well beyond 10,000 flight hours as a pilot for the world’s largest airline flying the 767, 757, and 737.

Our creative clients like iCam Copters and Richter Studios are tops in their field. It helps me embrace the creative side of myself. Unlike my amateur beginning efforts such as here here here and here, our clients are at the top of their game. Creative professionals need to protect their work with intellectual property including copyright and trademarks, and use appropriate forms for protection like NDAs, Non-Competes, and licensing agreements. Attorney Amelia Niemi is not only learning from me in drone law and assisting with Section 333 petitions, special COAs, and drone related business issues, but she significantly helps the firm when it comes to our IP work. She studied IP at DePaul College of Law’s Center for Intellectual Property which has always been highly ranked nationally. I could have used her help when I was responsible for all the legal work for my first client, an IT company that supported data centers across the US for large clients including Walgreens, Acxiom, and Sallie Mae. I had to learn about NDAs, SHARK drives, storage silos, and a lot of other technology on my own then. I am grateful to offer my clients a great deal more resources today than in 2007.

Like much in business, the drone space is highly competitive with manufacturers releasing new models and new features constantly. New players appear and large players disappear or reinvent themselves.

Sometimes pushing the boundary means finding yourself in trouble with governmental entities. Or having to sue a competitor because they broke the law in order to unfairly compete with you.  I am admitted to the federal trial bar of the Northern District of Illinois (and numerous other federal courts) and litigation was most of my practice until recently. When it comes to fighting in court, I rely on the assistance of my experienced federal litigation associate Melissa Brabender in addition to other resources including our local counsel. In business most people try to stay out of court and one of our jobs as lawyers is to help them do just that. But when it is inevitable, our experience shows we know how to fight. Other lawyers may never have conducted a single trial.  We are looking for great cases challenging local drone laws and other issues as they arise. Our team has deep experience and many years in law and aviation. Due diligence of your lawyer should be a part of your business plan just as checking out potential business partners should be.

Part 107 will be coming out soon. Will it have a new airman certification, a drone pilot license? A written test? Implementation soon or in 6 months? We will find out. When it is published, we will then know what drone law will become in its newest iteration. That is, until the FAA Reauthorization comes out. What will remain the same is my commitment to providing value, honesty, and professional competence to our clients. I could have done a lot of things in business or other fields, but being a lawyer I want to remain being a trusted confidant, zealous advocate, and terrific employer. I also enjoy putting clients together when the synergy is right.

If you have any questions, feel free to contact me at Jeffrey@Antonelli-Law.com or call our client concierge Olivia Fowler at 312-201-8310.

*It looks like I went over 5 steps in How to Evaluate a Drone Law Attorney in 5 Easy Steps. Hopefully I exceeded your expectations in more ways than just the title.

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Jeffrey Antonelli to Speak at sUSB Expo in San Francisco

Jeffrey Antonelli, principal of Antonelli Law, will be speaking at the 2016 sUSB Expo in San Francisco. Also known as The Silicon Valley Drone Show the event will take place at the Golden Gate Club at the Presidio April 27th, 28th, and 29th 2016.

The topic of the presentation will be Drone Law in the United States, and is expected to include the FAA Reauthorization Act, Part 107 (Final Commercial sUAS Regulations), Section 333, COAs, and defending an FAA enforcement action.

Ticket registration for the 3 day event is $250 until April 20th, or $300 at the door. The sUSB Expo was the best conference in 2015 for movers and shakers, and should be a terrific experience for 2016.  We would not miss it.

susbexpo2016

The Best Resource For Experts In Commercial Drones

sUAS News’ sUAS Guide Inaugural Issue has been released. If you have not heard of sUAS News you should.  They were pioneers in the commercial drone world long before most of us even knew there was such a market.

The Silicon Valley Drone Show aka The sUSB Expo has been held annually since 2012 and is the premier drone conference and expo in the United States. Many of the people in the audience as well as the speakers are at the top of the field and the event should not be missed – April 27, 28, 29th in San Francisco’s Presidio.

sUAS News puts on the premiere commercial drone conference and expo each year in San Francisco
sUAS News puts on the premiere commercial drone conference and expo each year in San Francisco

Note: sUAS News is a client of Antonelli Law, the publisher of this blog. No compensation was paid to Antonelli Law for this blog post. We’ve been a fan of sUAS News long before they became a client!

UAS Insurance Applications – Representations and Misrepresentations

UAS Insurance Applications – Representations and Misrepresentations

Guest Post By Terry Miller, President of Transport Risk Management, Inc.

Aviation insurance companies routinely request certain information from applicants for all types of operational risk exposures. This information is needed to help in evaluating the risks to be covered by the insurer and to determine appropriate rates, limits and breadth of coverage. However, when a claim is made for a loss under the policy, the insurer may sometimes discover that the insured misrepresented or withheld certain material facts in the application for the insurance. The misrepresentation or omission may be in the form of an incomplete or false answer to a question on the application or rather the concealment of certain facts. The misrepresentation may be intentional with a purpose to deceive, or it may be an innocent and inadvertent mistake.

When a post loss misrepresentation is discovered, the insurer may be entitled to deny the claim under the policy and even rescind the policy. Rescission has the effect of making the policy void back to inception as though the policy was never in effect at all. The basis of that entitlement is that it would not be in the public interest to permit a dishonest insured to recover for losses that would eventually be passed along in the way of higher premiums charged to honest insureds.

When completing an insurance application, you must provide complete disclosure and truthful representations.  Read the application completely and expand upon answers if additional material details exist. More information is better.

Most insurance applications contain an Application Statement at signing that reads as follows.  If you do not understand the wording, ask your broker for clarification. It’s best to provide too much than too little information.

I understand that by signing below, I am agreeing that: all statements on this application are complete and true to the best of my knowledge; no information has been suppressed or withheld; no insurer has cancelled or refused to renew this insurance; the information herein and the truthfulness thereof will be the basis of any insurance provided by the company; this application does not bind the applicant or the company to provide any insurance; any person who knowingly and with intent to defraud any insurance company or other person files an application for insurance or statement of claim containing any materially false information, conceals for the purpose of misleading, information concerning any fact material thereto, commits a fraudulent insurance act, which is a crime, and shall also be subject to a civil penalty not to exceed five thousand dollars and the stated value of the claim for each such violation.

Misrepresentation

A false or misleading statement that, if intentional and material, can allow the insurer to void the insurance contract. Some insurance policies and state laws that govern insurance contract provisions vary on the exact details of the conditions under which coverage may be voided; these variations are usually denoted in state amendatory endorsements.

Representation

A statement made in an application for insurance that the prospective insured represents as being correct to the best of his or her knowledge. If the insurer relies on a representation in entering into the insurance contract and if it proves to be false at the time it was made, the insurer may have legal grounds to avoid the contract.

Regulations Versus Representations

Although aviation insurance policies, including those that are placed to cover UAS, do not exclude Federal Aviation Regulation (FAR) violations, insurers can deny coverage based upon representations made in the application that reference FARs. If you represent that you operate within certain FAR provisions and the underwriter relies upon that those representations as a basis for providing coverage, you must operate within those FAR provisions as a condition of coverage under the policy.

For example, if an insured represents that they hold, and are operating under a 333 Exemption and are afforded rating and coverage limits based upon that representation but then have a loss while operating outside of that exemption, the insurer could deny coverage. The reason for denial would not be a violation of an FAR but rather that the insured represented that they were operating under the provisions of their exemption as a basis of obtaining insurance. If the loss involves something that would have been avoided had the insured followed the provisions of their exemption, then there will almost certainly be a denial of coverage.

Insureds must always provide complete, detailed and accurate information in the insurance application. That is the first document that will be reviewed following a loss and that is the document that will help clarify the Insured’s operations and show the intent of the coverage and the basis upon which coverage was quoted and bound. Even if that coverage is in conflict with policy language, conditions, exclusions or definitions. In those cases, the representations in the application actually fall in the insured’s favor by extending coverage under the policy beyond what the policy language intended.

 Transport Risk Management, Inc.
12424 Big Timber Drive Suite 5
Conifer, CO 80433

 

Phone: 720.208.0844
Toll-free: 866.256.0227
Fax: 720.208.0845

2 Unmanned Risk Management

Cool and Creepy – The Competing Drivers for the Development of Drone Law

Cool and Creepy – The Competing Drivers for the Development of Drone Law  Mark Del Bianco

Two weeks ago I was the designated lawyer on a “Putting Wings on the Internet of Things” panel on UAS at MobilityLIVE in Atlanta. My assigned task was to predict how the laws and regulations governing drones would develop in the next 2-3 years. The morning of the talk, I had a set of predictions but no connecting theme.

The paneI that preceded ours was on location-based marketing (think in-store beacons pinging your smartphone). One of the panelists mentioned that for consumers there was a fine line in LBM between cool and creepy. A light bulb went on for me. Cool and creepy are the yin and yang of commercial drones. The development of drone law over the next decade will be driven by public/legislative perceptions of the cool/creepy factor, not by the technological developments in the industry.

It turns out my predictions for the panel talk fit the cool/creepy dichotomy well. Unfortunately, creepy is likely to be the winner in the short term. I’m using creepy not just in the “ugh” factor sense (think peeping toms), but as shorthand for the various types of fear induced in many people by the idea of flying cameras everywhere. “Cool” refers to all the potentially beneficial uses of drones – precision ag, utility inspections, deliveries, avalanche prevention – that can be unleashed by a well-designed regulatory framework.

My first prediction was that the FAA’s half-baked drone registration idea will be implemented but pointless. Referring to it as a plan dignifies it too much. Anyone who’s been involved with drafting federal policies and regulations knows that the FAA’s goal of implementing something, anything, by Christmas goal is a recipe for failure. There are so many obvious questions (leaving aside the jurisdictional issues), such as who will perform the registration function, will it be mandatory, will it apply to all drones, and will it apply retroactively? In the end, the FAA will at best have only a part of the universe of hobbyist drones registered, and this year’s registration plan may have to be scrapped and reworked. But when questioned by a Congressional committee, the agency will have the defense that at least it tried to do something.

The second prediction was that the next few years will see a rapid proliferation of state and local drone laws. The majority, but not all, will be anti-drone laws. Such laws will continue to be proposed (but not always enacted) by legislators driven largely by privacy fears, not by the potential danger of injuries from drone accidents.   Many of these laws will infringe Constitutional protections, but there will be few court challenges initially. Why is that? It’s because in the first few years, those most affected by restrictive local laws will be hobbyists and small businesses, who generally don’t have the financial resources to fund litigation. Legal challenges will eventually be brought as larger drones come into use and the operations of Fortune 1000 companies – think utilities, engineering firms and large services companies – are affected. They will have the incentives and the necessary deep pockets to fund litigation. But challenging the numerous state and local laws in effect by that time may be a piecemeal process akin to legal whack-a-mole.

Where does “cool” come in? Only at the federal level. Most of the potential “cool” use cases for drones – including the delivery operations that have garnered so many headlines – require specific federal authorization. Unfortunately, Congress and the FAA move much more slowly than state and local governments. That’s why my third prediction was that there will be neither significant changes in federal law nor amended regulations for smaller UAS (under 55 lbs.) in the next 2-3 years (and perhaps longer). (It is a given that the pending small UAS regulations will be finalized during that time, but I don’t count that as a change.)

I know this prediction is contrary to the hopes and expectations of many in the industry. But I think it’s realistic. Here’s why. The starting point for my analysis is that Congress is aware that the technology is changing too fast for it to enact a drone-specific law at this point, and in any event it would rather leave the task of drone-specific regulation to the FAA. Congressional action will only occur in the near term if (1) there is a drone accident with significant loss of life, (2) the FAA drags its feet and fails to finalize the small UAS regulations until 2017 or 2018, or (3) there is a widespread perception that the U.S. is losing its competitive advantage (and more importantly, manufacturing and services jobs), to other countries with more industry-friendly UAS regulations.

So any changes in the next 2-3 years will have to come from the FAA, which is notoriously slow to embrace new aviation technology. To begin with, the FAA will be hard-pressed to get the proposed small UAS regulations finalized by the end of 2016, four years after Congress passed the statute requiring the FAA to issue regulations. Once they are finalized, the FAA needs to draft both regulations for larger UAS and amended regulations that will enable small UAS to be used for many more useful commercial operations. That means regulations on autonomous operation and beyond visual line of sight flight (BVLOS). Since the necessary testing of BVLOS and autonomous systems is just starting now, I don’t see how the FAA can get a proposal out on either issue until 2017 at the earliest, and it will probably be later than that. Does the FAA have the incentive or the legal bandwidth to do both at the same time? That’s a good question.

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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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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Drone Democracy Improves With N Number Registration, Lower Price

Antonelli Law is proud to announce its Drone Democracy program now includes one FAA N number registration and a lower Section 333 legal fee of $1,500 for simple uses like residential real estate,  home and roof inspections, and nature photography with certain drones already approved by the FAA like the DJI Phantom 3.

In June Antonelli Law launched  its Drone Democracy Section 333 service as an experiment, to serve people wanting to use drones for simple uses and at a lower legal cost than our traditional Section 333 petition services for GIS, cinematography, oil & gas, mining, engineering, forensics, and other sophisticated uses.

Please note the Pilot License Requirement:

The company or individual running the operation that holds the Section 333 Grant of Exemption does not need to be a licensed pilot, but the person actually flying the drone/UAV must be. The licensed pilot may be a company employee or an independent contractor, as long as the licensed pilot has the UAV competency and other qualifications articulated in the holder’s Section 33 Grant of Exemption.

The FAA currently allows a sport or recreational pilot license (officially called an airman certificate) to operate drones/UAVs under a Section 333 Grant of Exemption. A driver’s license may substitute for a current medical certificate.

Please click here for Drone Democracy.

For GIS, cinematography, oil & gas, mining, engineering, forensics, and other sophisticated uses:

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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Jeffrey Antonelli

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

TWO NEW FAA SECTION 333 APPROVALS ISSUED TODAY

Today, the FAA approved two  new Section 333 petitions for exemption. One exemption was issued for real estate photography and videography over non-congested areas in Tucson, Arizona using the DJI Phantom 2 Vision + (the same UAS I use as a hobbyist).  The second exemption was issued for precision agriculture crop scouting and photogrammetry using the senseFly eBee Ag UAS.

The two new exemptions approved today are as follows:

  1. Trudeau_Douglas-11138
  2. Advanced_Aviation_Solutions_LLC-11136(1)

Again, just as with previous Section 333 exemptions, the FAA continues to require that the Pilot in Command (PIC) possesses at least a private pilot certificate and a current third-class medical certificate. Interestingly, the FAA is allowing the 1.5 pound fixed-wing eBee to fly up to 70 knots.

We continue to believe that requiring a private pilot certificate (“private pilot’s license) is unnecessary as it does not provide training related to the safe operation of the UAS as documented by research studies by the FAA and Army Research Laboratory. Therefore, please contact your US Senators and Congressmen to ask them to work to eliminate the private pilot certificate requirement in Section 333 exemptions or in the upcoming NPRM for sUAS.

If you would like to speak with Antonelli Law about helping you submit your own Section 333 petition for exemption, call Principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below. Additional information about our Drone/UAS Practice Group is available by clicking here as well.

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FAA Approves Five New 333 Exemptions

Today the FAA approved five new Section 333 petitions for exemption by four companies, but continues to require a private pilot’s license for these very small UAVS, stating “Although Section 333 provides limited statutory flexibility relative to 49 USC § 44704 for the purposes of airworthiness certification, it does not provide flexibility relative to other sections of 49 USC. The FAA does not possess the authority to exempt from the statutory requirement to hold an airman certificate, as prescribed in 49 USC § 44711.”

Immediate action by Congress must be made to address this. Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA) gets why a private pilots license just is not applicable to flying these UAVs. Contact your US senators and congressmen now.

Here is the letter we are sending today: Antonelli Law letter to Congress 12-14-10

The four new exemptions approved today are a follows:

  1. Clayco_Inc_11109
  2. Trimble_Navigation_Limited_11110
  3. VDOS_Global_LLC_11112
  4. Woolpert_Inc_11111
  5. Woolpert_Inc_11114

Please take a look at the hearing in progress:

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Updates to Section 333 petitons – 65 Filed So Far

Searching the Regulations.gov website is too hard, so we wanted to make it easy for you.

We have updated our list to include the 65 Section 333 petitions on file, including the Section 333 petition Antonelli Law recently filed on behalf of Nixon Engineering. Please note that no warranties are made to the accuracy or completeness of these petitions. For the official versions go to Regulations.gov.

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. To see an example of the quality of our work,  select Nixon Engineering below.

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