Part 137 Drone Operator Enforcement Action

On July 5th, the FAA published to regulations.gov a rescission (cancellation) of the existing exemption and denied a petition to amend it.

In short, a drone seller who provided training had their existing exemption canceled, and their petition for amendment denied for alleged violations. They are grounded.

I don’t want to mention the entity’s name as these are just alleged violations, and I don’t want to hurt their reputation in any way. They still have an option to challenge these in court. I’ll just refer to the entity herein as “drone seller.”

By the way, I huge 20,000 word article on drone spraying here!

Let’s dive into what the FAA said.

Alleged Facts:

The FAA conducted in-person surveillance on April 8th and 9th, and the exemption was canceled on July 5th. That is 88 calendar days.

On April 8, the FAA visited the drone seller at a training-for-hire session that was advertised on its website.

FAA safety inspectors observed the pilot in command conducting the training-for-hire activities for several non-employees. The PIC referred to these activities as “training” when talking to the safety inspectors.

When questioned by the FAA about what operating authority they were using, the PIC mentioned he was operating under an exemption for 55-pound and heavier operations.

The customers were referred to as “his customers” and his visual observers. When the FAA asked if visual observers had gone through VO training, the PIC was unable to state whether all or any of the people he identified as “VOs” had completed VO training.

The FAA observed the PIC fly the aircraft closer than 100 feet from a non-participating farmer in a tractor tilling the field and all training session attendees.

The PIC could not provide proof of registration. When questioned by the FAA about the missing registration number, the PIC stated “sometime earlier the registration marking must have fallen off the installed tank.”

During the training session, the PIC failed to produce the following documents to the FAA inspectors:

1. The exemption.
2. The PIC’s remote pilot certificate.
3. The aircraft registration
4. The operating documents listed in the exemption.
5. No checklist to validate the preflight inspection was accomplished.

On April 9, the FAA visited the drone seller’s office and with the PIC from the previous day. The drone seller produced the exemption, operating documents, aeronautical knowledge currency, and “A FAA letter dated April 9, 2024, verifying the PIC’s remote pilot certificate issued on March 16, 2017, and allowing temporary authority to exercise the privileges of the remote pilot in command until June 8, 2024.”  The drone seller failed to produce:

1. Proof of registration for the UAS;
2. Any pre-flight check completed in the past for any UAS operated;
3. Documentation for any training conducted, including VO training;
4. Documentation reflecting any maintenance performed on any UAS; and
5. Any authorization received from the FAA allowing the training of non-employees.”

The address was not updated on the 137 operating certificate but the drone seller said it was updated on the exemption.

FAA’s List of Alleged Violations:

Condition and Limitation 9 of the Exemption (VO’s must be trained)

Condition and Limitation No. 9 states, in pertinent part, “all operations must utilize the services of at least one or more visual observers (VO). The VO must be trained in accordance with the Operator’s training program.” As noted above, the operation the ASIs observed did not include the use of a trained VO. When asked about a VO, the . . . PIC stated that all the people there for the training were “his VOs.” However, even in the most generous interpretation to [the drone seller], a VO under Condition and Limitation No. 9 must be “trained in accordance with the Operator’s training program.” When asked by the ASIs, the PIC could not confirm or produce documentation showing that any of the people there had completed [drone seller’s] VO training program. Thus, under the terms of Condition and Limitation No. 9, none of the people the [drone seller’s] PIC identified as “his VOs” were qualified under the exemption to serve as a VO. Therefore, the PIC was conducting operations without a VO in violation of Condition and Limitation No. 9 in Exemption.”

Condition and Limitation 21 of the Exemption (Can only provide training operations for employees.)

“Condition and Limitation No. 21 states, in pertinent part, “the operator may conduct training operations only for the operator’s employees.” As indicated through advertising on [the drone seller’s] website, the operations observed by the ASIs were part of a two-day training-for-hire course conducted by [the drone seller] for their own financial gain. Further, none of the training attendees identified themselves as a [drone seller] employee to the ASIs nor did the [drone seller] PIC identify any of the training attendees as a fellow [drone seller] employee. In fact, the [drone seller’s] PIC referred to the others present as “his customers” at one point. This indicates that [the drone seller] did not consider these people employees. Further, employees are generally not expected to have to pay for on-the-job training and the [drone seller’s] website indicated the cost of this two-day training course was $999, which further suggests that [the drone seller] did not believe these participants to be employees but rather customers of their training-for-hire services.3 Thus, [the drone seller] has violated Condition and Limitation No. 21 in Exemption . . . by conducting training-for-hire.”

Condition and Limitation 28 of the Exemption (Must have documents at ground control station).

Condition and Limitation No. 28 states “documents used by the Operator to ensure the safe operation and flight of the UAS, and any documents required under 14 CFR §§ 91.9, 91.203, and 137.33 must be available to the PIC at the ground control station of the UAS any time any UA operates in accordance with this exemption. These documents must be made available to the Administrator or any law enforcement official upon request.” As noted previously, upon request of the ASIs on April 8, 2024, the [drone seller] PIC was unable to produce the following documents: Exemption . . . , Remote Pilot Certificate, Certificate of Registration for the UAS; Operating Documents listed in Condition and Limitation No. 10 of Exemption . . . ; and A checklist to validate that the preflight inspection was accomplished. At a follow-up meeting between the FAA and [the drone seller] on April 9, 2024, the [drone seller] PIC was then able to produce the following previously missing documents: Exemption . . . ; Operating Documents listed in Condition and Limitation No. 10 of Exemption . . . ; Aeronautical knowledge recency dated August 9, 2022; and A FAA letter dated April 9, 2024, verifying the PIC’s remote pilot certificate issued on March 16, 2017, and allowing temporary authority to exercise the privileges of the remote pilot in command until June 8, 2024. However, as the PIC was unable to produce all requested documents during the UAS training operation, the [drone seller] PIC was in violation of Condition and Limitation No. 28[.]”

Condition and Limitation No. 31 of the Exemption (Don’t fly too close to other people).

“Condition and Limitation No. 31 states, in pertinent part, “flight operations must be conducted at least 500 feet from all persons who are not directly participating in the operation, and from vessels, vehicles, and structures” and “the UA may be operated closer than 500 feet, but not less than 100 feet, from vessels, vehicles, and structures.” When the ASIs came to the field that [the drone seller] was conducting its training-for-hire, they noticed that the field was also being actively tilled by a farmer in a vehicle, a tractor, at the same time. Further, when the [drone seller] PIC took flight with the UA, the ASIs noticed that the farmer in the tractor was well within 100 feet of the UA. This is a violation of Condition and Limitation No. 31 in Exemption . . . and is a gross disregard for the safety of non-participants in the area of any operations [the drone seller] conducts. Conducting operations within 100 feet of a non-participant is a violation of Condition and Limitation No. 31.”

Condition and Limitation No 1 of the Exemption

“Condition and Limitation No. 1 states that “The Operator must obtain an agricultural aircraft operator certificate under Part 137 by submitting FAA Form 8710-3 (copy enclosed) and the Operator’s exemption number to UAS137Certificates@faa.gov. Please note, the name of person or entity on the 8710-3 application must match the Exemption Holder’s name.” Under the  “services listing on [the drone seller] ’s website, the “spraying services” option immediately redirects to a different website for “[Redacted],” a separate company. All exemptions are nontransferable and are only authorized to be used by the party that is expressly granted the exemption; here, that is [the drone seller] not [similar name] (Exemption at pg. 3). Thus, any operations conducted under this exemption must be conducted by [the drone seller] and under a Part 137 operator certificate issued to [the drone seller].”

Condition and Limitation 7 of the Exemption

“Finally, Condition and Limitation No. 7 states, in pertinent part, “in all situations, the Operator and the PIC are responsible for the safety of the operation. The Operator must ensure the PIC follows all applicable conditions and limitations as prescribed in this exemption and ATO-issued COA and operating in accordance with the operating documents.” [The drone seller], as the operator, did not ensure that its PIC followed all applicable parts of its exemption or 14 CFR. As noted above, the PIC operated an unregistered UA for training-for-hire within 100 feet of nonparticipants without a properly trained VO. This is a violation of Condition and Limitation Nos. 9, 21, 28, and 31 as well as 14 CFR Parts 45 and 47. Therefore, [the drone seller] violated Condition and Limitation No. 7 in Exemption No. [Redacted] by failing to ensure its PIC complied with all applicable conditions and limitations of Exemption[.]”

Failure to Register and Mark Aircraft

The FAA said they witnessed an unregistered aircraft that was unmarked flying. The drone seller failed to provide registration for the aircraft. The FAA took this pretty seriously. “Failure to comply with even the most basic of requirements calls into question an operator’s intentions and ability to safely operate in the NAS”

“On April 9, 2024, [the drone seller’s] representative [redacted] stated that [the drone seller] already submitted an application for a registration number for the DJI [redacted]however, she did not have a copy of the application and since it was sent by regular mail to aircraft registry, she was unable to provide proof that it was mailed. However, when the FAA received the registration application for the DJI T40 Serial# [redacted] it was signed and dated April 11, 2024, two days after the FAA’s site visit to [the drone seller]. Thus, [the drone seller] did not have a registration number for the DJI T-40 that was flown on April 8, 2024. Further, [the drone seller] provided multiple misleading statements to the FAA when questioned about the missing registration number on the UAS.”  And here is a really really important point. In footnote 4, the FAA said, “The rescission of Exemption . . . does not foreclose further action by the FAA related to the misleading statements made to FAA officials during an investigation.” You can get civil and criminal penalities for lying or making misleading statements to an FAA safety inspector.  18 USc 1001 says,

“whoever . . . knowingly and willfully— (1)falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2)makes any materially false, fictitious, or fraudulent statement or representation; or (3)makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.”

Don’t ever lie or mislead the government. The outcome for that is WAYYYY worse than anything you are being investigated for.

Frequently Asked Questions

What lessons can we learn from this?

• If you advertise things online, there is a really good chance you are going to get a competitor to check you out. If you are flying dirty, your competitors and the FAA are going to try and catch you flying dirty.
• You better have all of your documentation available if asked.
• Don’t lie. How about you say this phrase, “I want to speak with my attorney first before answering that.” Anddddddd then call me. ;)
• Work with an aviation attorney in the event you are investigated.  There is the attorney-client privilege. There is no such thing as the consultant-client privilege. Anything you say to your co-worker, boss, consultant, drone seller, manufacturer, employee, etc. can be used against you. A clever FAA investigator or DOJ prosecutor would target the non-attorneys involved.   Lastly, you want to hire the attorney as an attorney and not as a “consultant.”  This is why I do a contract with all of my clients. That contract is evidence we have an attorney-client relationship. That benefits the client, or I, when invoking the attorney-client privilege. If the investigators challenge it, we have evidence. Trying to claim attorney-client privilege with a person, who is a licensed attorney, after the fact you originally hired as a “consultant” not providing legal advice is a very precarious place to be and defend.

I’m a drone seller. What should I learn from this?

You should have all of your documentation with you when flying. You should also follow the exemption.

What resources have you put together so we can understand the exemptions?

I have a whole article here on the conditions and limitations of the newer and older exemptions.

I also have an article here on the blanket COA’s that come with the exemption.

I provide “training sessions” for customers. How can I do this?

If you are a customer of mine or a referral source, I have sent you an email on this. If you are not a customer or referral source and wish to be one to obtain this info, contact me.

I’m not putting anything here because I would rather benefit my customers and referral sources than all of the competitors of my customers and referral sources out there.

Does the First Amendment protect our speech? How can the FAA restrict my speech regarding training?

I’m still analyzing whether this is a violation of the First Amendment as a prior restraint on speech. In essence, we cannot communicate unless we obtain a new exemption that allows for the flight instruction.

Jonathan Rupprecht

Aviation Attorney. FAA Certificated Commercial Pilot and Flight Instructor (CFI/CFII). Contributor at Forbes.com for Aerospace and Defense.