Drone litigation takes flight

Posted: March 23, 2018

Drones are soaring in popularity and, given the cloudy legal atmosphere, have injected jet fuel into aviation law practices.

What are the rules for flying them? Who makes the rules? And what if you feel threatened by a drone?

The Federal Aviation Administration calls drones Unmanned Aircraft Systems. The agency projects the small model hobbyist UAS fleet will more than double from an estimated 1.1 million vehicles in 2017 to 2.4 million units by 2022.

The commercial, small non-model UAS fleet is set to grow about fourfold from 110,604 in 2017 to 451,800 in 2022. The number of remote pilots is set to increase around fourfold from 73,673 in 2017 to 301,000 in 2022.

The law has yet to catch up.

“Given the ambiguities in the law, which had no warning of this technological development, the brave new world of drones has spawned a growing—and lucrative—legal niche,” writes Darlene Ricker in ABA Journal. “With little case law for guidance, and a complex web of government regulations to wade through, ‘drone attorneys’ have recently found themselves in high demand.”

Ricker credits Dentons with being one of the first drone law practices in the U.S. Launched in 2014, it’s grown to 20 aviation lawyers and professionals, five of whom focus almost exclusively on drone matters.

One sticky wicket in drone law is whether hobbyists need to register themselves and their drones. As the Aircraft Owners and Pilots Association reports, the FAA made that a requirement in 2015. A federal court knocked it down in May 2017, and Congress reinstated the rule in December 2017. So for now the requirement sticks.

What’s the FAA’s role?

The numerous gray areas of drone law are epitomized in a case where a property owner shot down a neighbor’s drone above his land. Does the property owner own the airspace above his lot or does the federal government, which through the FAA keeps the skies safe for “aircraft” and the people below them?

The judge didn’t answer that particular question, instead saying the case lacked subject matter jurisdiction: “FAA regulations, at most, would constitute ancillary issues in this case, in which the heart of Boggs’ claim is one for damage to his unmanned aircraft under Kentucky state law.” See?

Last September, another federal judge knocked down attempts by Newton, Mass. to require drone registration and regulate altitude. This time, FAA jurisdiction carried the day for the plaintiff. “Congress has given the FAA the responsibility of regulating the use of airspace for aircraft navigation and to protect individuals and property on the ground, and has specifically directed the FAA to integrate drones into the national airspace,” wrote U.S. District Judge William G. Young.

Oddly, the city had sought to ban flights under 400 feet. Why is that odd? The FAA bans them above 400 feet.

“Newton’s choice to restrict any drone use below this altitude thus works to eliminate any drone use in the confines of the city, absent prior permission,” the judge wrote. “This thwarts not only the FAA’s objectives, but also those of Congress for the FAA to integrate drones into the national airspace.”

Jonathan Rupprecht is a well-known lawyer in the field. He keeps a fat database of lawsuits and litigation here. It includes the case of the drone-mounted handgun, a flight into the Empire State Building, stalking complaints, a Fourth Amendment issue, and a drone crashing into a wedding guest.

Who knows where the next case will land?

Mark Rossi

Mark has spent a quarter century helping clients in law, finance and business solve complex business problems through advanced information solutions. He is adept and fostering enduring client relationships, creating new brands for unmet needs, and bringing the best out of talented people