A Quick Comment on a Forbes Article on Drones

I wanted to add a few points on the “Disruptive Regulation, or ‘Mother May I?’” section of the recent Forbe’s article Drone Disruption: The Stakes, The Players, And The Opportunities.

Much of the focus of the VC money is on the technology with very little being put into regulatory R & D and interacting with the already existing regulatory structure. Great. People start thinking about lobbying to get around the regulatory problems by getting Congress to give the FAA a special type of legal authority, but once again, we are back at the regulatory R & D point because that new special authority is going to have to assimilate and interact with all the other provisions of the already existing regulatory structure.

On top of the lack of VC money going into the legal R & D area, many of the large companies are being represented by lawyers dabbling in the drone law who are not qualified. One great example is where one law firm wrote an exemption for their client for a pixhawk flight controller, not an aircraft. Let that sink in for a second. You get exemptions for aircraft, not exemptions for parts of an aircraft, which showed the inferior drone 101 knowledge of that firm. That firm later picked up a multi-billion dollar massive global company as their client for another 333 exemption. Another example is of legal malpractice where a different lawyer at a different law firm negligently didn’t complete certain paperwork for their client’s exemption and the exemption was denied, which put the client in a bind because the client could not legally operate their drone commercially for months and months until approval. That attorney is now trying to work with other large companies.

There is also a lot of flux in the law and the FAA guidance. The FAA is relying on their “guidance,” not law, and when they do use regulations, it is because they arbitrarily “activated” regulations that had not historically been applied to drones. Basically, everyone is violating a regulation when they fly their drone. Even flying according to their own guidance documents alone is not compatible with the regulations! The FAA uses this to make you comply with their guidance, because if you don’t, they come after you for violating the regulations, not guidance.

Currently there is a lawsuit going on in the D.C. Circuit Court of Appeals (the court right below the U.S. Supreme Court) challenging the FAA’s drone registration regulations. My firm is assisting John Taylor, the Plaintiff. Basically, the FAA went too quickly and did not do all they were legally required to do to create the registration regulations. On top of that, they also “activated” some registration regulations that had not been historically applied to drones. There is a chance those regulations with be thrown out by the D.C. Circuit Court of Appeals because they were illegally created – which is going to cause things to slow down because the FAA will make sure all their ducks are in a row.  The court ruled in favor of John Taylor and the regulations were declared illegal; however, Congress passed the National Defense Authorization Act of 2017 which basically overruled the Taylor ruling so the registration regulations are back in effect. A more detailed analysis of the legal problems with the drone registration regulations is here.

This is going to be interesting in how this all plays out since the FAA is trying to get out the microdrone rule soon.

I hope this helps.  :)

Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.