FAA Drone Registration Deadline Passes; Some Question How Enforcement Will Work

“Operators are likely going to face an arbitrary enforcement scheme stemming from this registration," said Andrew Barr, an attorney in Morrison Foerster's drone practice. "You’re going to have operators flying their drones throughout the country, and it’s entirely unclear who’s going to be enforcing the registration rules, if they are going to be enforced, and how they are going to be enforced.” He questioned whether the FAA would have the resources to enforce the registration requirement, or if it would try to shift that responsibility to another federal agency or possibly even the states. If the latter, a uniform approach to enforcement seems unlikely, he said.

Although the FAA can fine and impose civil penalties and other restrictions, Barr said only the Department of Justice can criminally prosecute someone for violating a federal law. The big question, he said, is whether DOJ is prepared to prosecute incidents involving drones akin to incidents involving manned aircraft, even though the FAA suggested drones should be treated the same as manned aircraft in terms of civil and criminal penalties.

Barr cited the case of William Merideth of Kentucky, who last year admitted shooting down a private drone that crossed into his property. The state court judge dismissed the criminal case in October, and now the drone's owner, John David Boggs, has sued Merideth in the U.S. District Court for the Western District of Kentucky seeking clarification of the federal government’s role in regulating airspace near private property. Barr said DOJ hasn't publicly gotten involved in the case, despite Meredith's admitting to all the elements that seem to be required to convict under the applicable federal criminal statute, and despite FAA saying it has jurisdiction over airspace "from the ground up.” DOJ’s absence in this case, Barr said, makes it difficult to understand who will be entrusted to enforce the rules.

Many within the drone community view the registry as positive because it promotes accountability, but Michael Drobac, Akin Gump drone lawyer, said more needs to be done about educating owners on how they can operate their vehicles in a safer manner and in line with the rules -- not just tell them what they can and can't do. But he said there's an imbalance with the FAA fines and penalties, that's "excessive" and "a bit egregious."

"The majority of operators are using this technology in a way that's responsible and they're being good stewards of the technology," said Drobac, who represents several unmanned aerial vehicle clients and the Small UAV Coalition. "We don't have that balance of the fines and the potential criminal penalties, which I think are not consistent with what has been largely a very responsible community of users." As of Friday morning, 358,000 people who own drones sized between 0.55 pound and 55 pounds have registered with the FAA, a spokeswoman emailed us. "Our primary focus is on education, but if we learn about an unsafe operation, we would not hesitate to take enforcement action," she added.

Drobac said it's not clear to most how the FAA intends to enforce this: "This is an area where we have a bit of a gap." He said the FAA's win -- on appeal in 2014 -- in its case against Raphael Pirker, who was fined for making a video using a drone near the University of Virginia in 2011, gave the agency jurisdiction to regulate drones in the airspace: "We've seen over 150 plus local and state bills around these issues and there's some question -- and a reasonable question -- whether this should be pre-empted because this is exclusively within the jurisdiction of the FAA, and that's an area where I think greater clarity is needed."

Rich Hanson, government and regulatory affairs representative with the Academy of Model Aeronautics, an 80-year-old group with nearly 190,000 members who use drones recreationally, said FAA registration makes sense at some level. But AMA was disappointed the rule set a "very simplistic threshold of weight," he said, "which we believe really reaches into the toy market pretty heavily." While the AMA has been in discussions with the FAA to streamline the registration process, since the group has been registering members and already collects their names, contact information, email addresses and phone numbers and issues a membership number that's tied to aircraft, Hanson said it will take some time to get that coordinated with the FAA.

In the meantime, Hanson said the AMA encouraged members to register: "They may do it begrudgingly but I’d say that the vast majority are in compliance and have gone ahead and registered.” Hanson also said the maximum penalties are "certainly excessive" given a "minor circumstance" of an aircraft not being registered. But he said the FAA is just pulling from existing federal law for criminal offenses and judges would assess reasonable penalties if any cases were prosecuted.

Hanson worries about the privacy of AMA members, 50,000 of whom are under 19 years old. He said having a publicly searchable database with children's information concerns many members. He said model aviation is typically a stepping stone for young people to go into aeronautics and electrical engineering and a publicly searchable database with their information could have a "chilling effect" because their parents may not want to buy their children such devices. Drobac, too, said privacy is a big concern, as is how the FAA intends to make its database secure and who will be able to access it (see 1601060045).