Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class action lawsuits. Claudia also regularly counsels clients in the food, cosmetics, retail, and technology industries. She represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.<h5>More about Claudia</h5>Claudia is active in MoFo’s pro bono efforts, and recently traveled to El Paso, Texas, to work with families separated and detained at the border. She is also supervising a pro bono collaboration with Equal Rights Advocates, a nonprofit fighting for gender justice in work places and schools across the country. The initiative will help students who have been victims of sexual assault, attempted assault, or harassment find support and seek justice. Claudia is also a board member of Bay Area Legal Aid and a former board member of Equal Rights Advocates. Claudia is an editor and frequent contributor to MoFo’s <a href="https://classdismissed.mofo.com/">Class Dismissed</a> blog, which provides reports about the latest defense news, developments, and trends in class action lawsuits and product liability issues that affect consumer-facing companies. Her perspectives are also respected in the larger legal community: Claudia has published articles about class action and false advertising issues, and is a co-author of Chapter 7 — “Unfair Competition in California Business Litigation 2016” — of The Recorder. She also regularly speaks at conferences on class action and advertising trends. Claudia is currently serving as a Lawyer Representative for the Northern District of California. She received her J.D. degree in 2004 from Berkeley Law (Boalt Hall School of Law), where she was an associate editor of the Berkeley Technology Law Journal.

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

Adam J. Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.Mr. Hunt has extensive experience representing consumer products companies, financial institutions, and technology firms in class action cases and complex commercial disputes before state and federal trial courts, as well as in arbitrations. Clients seek Mr. Hunt’s counsel for his creative, strategic thinking in high-stakes, high-profile matters. He has represented clients facing claims under false advertising, antitrust, and privacy laws throughout the country, securing wins at the pleading stage, summary judgment, and trial, in addition to negotiating favorable settlements, often early in the case. Representative experience includes successfully securing rulings dismissing two putative false advertising class action cases against one of the best-known consumer electronics companies in the world; obtaining a complete win on summary judgment for a major shipping and logistics company in a multimillion-dollar commercial dispute; appearing as counsel at trial for a leading financial institution in a $100 million commercial dispute, winning a bench trial verdict; and prevailing on motions to dismiss false advertising class actions against a leading Greek yogurt company.Mr. Hunt is also an editor of the firm’s <a href="https://classdismissed.mofo.com/" target="_self">Class Dismissed blog</a>, which provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class action lawsuits that affect consumer-facing companies.Mr. Hunt maintains an active pro bono practice and is the recipient of the New York State Bar Association’s 2017 President’s Pro Bono Service Award for the First Judicial Department, the 2018 Public Service Award from New York University School of Law, and Morrison Foerster’s Kathi Pugh Award for Pro Bono Services.Mr. Hunt received his B.A. with honors from Swarthmore College and his J.D. cum laude from New York University.

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Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

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Note: In light of the FAA’s announcement of the drone registry, we’ve revisited our recent analysis of its authority to require registration.]On December 14, 2015, the FAA issued the much-anticipated “Registration and Marking Requirements for Small Unmanned Aircraft Interim Final Rule” (the “Interim Final Rule”).  The incongruously named rule requires all operators of small unmanned aerial systems (sUAS)—drones weighing between .55 and 55 pounds—to register their drones through the FAA’s new web-based process.<a href="#_ftn1" name="_ftnref1">[1]</a>  The registration process will be available starting December 21, 2015, and will apply to new and existing drones.While the FAA adopted many of the recommendations made by the Unmanned Aircraft Systems Registration Task Force Aviation Rulemaking Committee,<a href="#_ftn2" name="_ftnref2">[2]</a> the Interim Final Rule is sure to generate controversy.  From the FAA’s use of “emergency” rulemaking, to the applicability to the model aircraft community, to the efficacy of registration in addressing safety concerns, it remains highly likely that the FAA’s “interim final rule” will face legal challenges before it loses its “interim” label. In fact, the Academy of Model Aeronautics (AMA) is recommending members hold off on registering their drones for now to give the organization time to “fully consider all possible options.”The FAA’s Registration RulesBorrowing heavily from the Task Force’s final report, which reflected a “general consensus” of major industry voices from Google X to DJI, the FAA’s new Interim Final Rule includes the following:<ol><li>Only individual or recreational users who are U.S. citizens and at least 13 years old may register their sUAS using the web-based registration process. All other operators, including business entities, must continue registering through the paper-based registration process set forth in part 47.</li><li>Owners who purchased the sUAS prior to December 21, 2015 will have 60 days to register.</li><li>Owners who purchase a sUAS on or after December 21, 2015 must register the sUAS prior to operating in the National Airspace System (NAS).</li></ol> <ol start="4"><li>Online registration requires submission of the owners name, physical address, mailing address, and email address. The make, model, and serial number does not necessarily have to be provided.</li><li>Registration will cost $5 per owner, but is free until January 21, 2015. This grace period is calculated to encourage speedy registration of sUAS.<a href="#_ftn3" name="_ftnref3">[3]</a></li><li>Registrations must be renewed at least as often as every three years.</li><li>The registration number, which is unique to the owner, must be marked on each sUAS in a readily accessible manner.</li><li>Failure to register a sUAS may result in civil and/or criminal penalties. On the civil side, an operator could face up to $27,500 in penalties.  Not to be outdone, the criminal penalties range from fines of up to $250,000 to imprisonment for up to three years.</li><li>Drones that weigh 250 grams or less, including the aircraft, payload, and any other associated weight, are exempt from registration.</li></ol>While few of the requirements come as a surprise, the Interim Final Rule leaves many questions unanswered.  For example, how useful will a registration number be in the event a drone actually collides with, and is completely destroyed by, a manned aircraft?  What good is the 250 gram exemption when nearly every drone, even toys, weighs more than that?  What is the rationale that a “failure to register,” by itself, should carry the risk of three years in prison, particularly for recreational operators who have been flying their sUAS for years?  And how will the registration requirement help inform and educate new users when it will be implemented after most of the holiday season’s drones have been purchased?The FAA implicitly acknowledged some of these questions, and many more, in a FAQ it released along with the rule, but until the agency begins enforcement, it remains to be seen how effective and how onerous the requirements will truly be.  More problematic, however, are the possible legal challenges associated with the process the FAA used to promulgate the Interim Final Rule.The FAA’s “Emergency” RulemakingAccording to the FAA, registration will serve the dual goals of promoting accountability in the event of an incident and educating operators on federal regulations pertaining to sUAS.  While laudable aims, they are distinct from the justifications the agency has offered for its accelerated rulemaking process.Under the APA, the FAA cannot make rules without giving the public a 30-day period to comment.<a href="#_ftn4" name="_ftnref4">[4]</a>  In limited circumstances, however, an agency can forgo the standard notice‑and‑comment requirements and directly issuea final rule.<a href="#_ftn5" name="_ftnref5">[5]</a>  When an “agency for good cause finds … that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest,” the notice-and-comment period can be bypassed.<a href="#_ftn6" name="_ftnref6">[6]</a>Such “emergency rulemaking” usually follows situations that require immediate action (such as a natural disaster), minor technical amendments that do not affect the substantive law, or instances where Congress has directed the action in legislation.  Here, the FAA has considered the absence of rules regarding public registration of drones to be an “emergency,” and has determined that “[g]ood cause exists for making this regulation effective less than 30 days from the date of publication because it relieves a significant number of owners from the burden of complying with the paper-based, time-consuming part 47 registration process.”In other words, the FAA promulgated the Interim Final Rule without allowing for the traditional notice-and-comment period. Under the “good cause” exemption, the FAA itself has determined that it was justified in invoking emergency rulemaking, and as a result, any challenge to its decision may only be filed after the rules are promulgated.  Despite courts’ cautioning they will “narrowly construe” agency actions utilizing the emergency rulemaking exception, in reality the agency’s action is often left untouched.As evidence supporting its “good cause” finding, the FAA has noted the significant increase in sUAS expected to enter the NAS in the coming weeks and months.  Citing reports of dangerous and/or unauthorized operation of sUAS during 2015, including expressly referencing the $1.9 million enforcement action against Skypan, the FAA determined “that it is impracticable and contrary to the public interest in ensuring the safety of the NAS and people and property on the ground to proceed with further notice and comment on aircraft registration requirements for small unmanned aircraft before implementing the streamlined registry system established by this rule.”<a href="#_ftn7" name="_ftnref7">[7]</a>In this context, “impracticable” generally refers to a situation in which the required execution of agency functions would be unavoidably prevented by public rulemaking proceedings.  However, “time constraints” and the “imminence of a deadline” are considered “inadequate justifications to invoke the good-cause exemption, especially when it would have been possible to comply with [a] statutory deadline.”<a href="#_ftn8" name="_ftnref8">[8]</a>  The FAA cannot create its own “emergency” (intentionally or otherwise) by delaying announcement of proposed rules or setting an arbitrarily imminent deadline.After the FAA announced its intention to create a registration requirement, numerous organizations expressed concerns over the FAA’s fast-track approach, prior to the release of the Interim Final Rule.  To its credit, the FAA documented these concerns, but the agency failed to advance any new justification for dispensing with the required rulemaking proceedings.  Rather, the FAA supported promulgation of the Interim Final Rule with evidence regarding increasing sUAS incidents.Curiously, however, the FAA’s own evidence is far from unambiguous.  The rule states “[s]ince February 2015, reports of potentially unsafe UAS operations have more than doubled[.]”  Yet the FAA’s own information paints a murkier picture.  Far from the hockey stick line one might expect, a graph of the sUAS reports cited by the FAA shows an overall increase, but not the volume or growth one would expect from a crisis. As a result, it will be difficult for the FAA to stop critics from raising the question:  Is the Interim Final Rule valid?On February 14, 2012, in the FAA Modernization and Reform Act of 2012 (the “2012 Act”), Congress instructed the FAA to issue rules for the “safe integration” of UAS by September 30, 2015.  Although the FAA issued a Notice of Proposed Rulemaking, and the comment period has closed, the FAA has yet to finalize these rules, despite nearly four years lapsing between Congress’s mandate and today.  Because the holiday shopping “deadline” is the impetus for the FAA’s “emergency” rulemaking, it seems that the FAA is the cause of its own crisis, and its action may be vulnerable if challenged.In an analogous situation, the FAA claimed that “good cause” was present, and it bypassed the notice-and-comment requirements, when promulgating Penalty Rules for violations of FAA regulations.<a href="#_ftn9" name="_ftnref9">[9]</a>  There, a private petitioner challenged the FAA’s action and a federal appellate court held that the FAA was required to follow the APA’s notice-and-comment requirements because the rule substantially affected the petitioner’s (and others’ similarly situated) substantive rights.  The Court further pointed out that the “good cause” exception should be used for “housekeeping” matters, which are traditionally thought of as purely procedural rules.  Notably, in that case, the FAA waited only nine months to begin promulgating the rules.  Here, it has waited years.If an agency can create its own emergency to bypass the APA’s notice-and-comment requirements, public comment will effectively be optional for agencies.  This not only creates perverse incentives for agencies directed to make rules for hotly debated topics (like drones) to do so through emergency rulemaking in the hopes of avoiding extensive and controversial public comment, but it also, ironically, threatens to slow down the entire rulemaking process, as lawsuits will inevitably follow such actions.<a href="#_ftn10" name="_ftnref10">[10]</a>Hobbling the Hobbyists?In addition to the FAA’s procedural shortcuts, the issues of both who and what the registry would encompass present legal challenges.  Under the Interim Final Rule, registration applies to commercial and hobbyist users alike.Traditionally, model aircraft flown for hobby or recreational purposes have not been subject to any registration requirements.  This understanding was codified under Section 336 of the 2012 Act, which provides that “notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies . . . the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft,” so long the aircraft meet certain criteria.  Congress defined “model aircraft” under Section 336 as “an unmanned aircraft that is capable of sustained flight in the atmosphere, flown within visual line of sight of the person operating the aircraft, and flown for hobby or recreational purposes.”According to the FAA, the 2012 Act does not affect its ability to require registration of drones flown for hobby or recreational purposes.  The agency’s stance is that registration has been exempted for model aircraft only through the use of its own discretion, and that prior law unrelated to the incorporation of UAS into FAA plans and policies, specifically 49 U.S.C. 44101(a), gives it the authority to require registration of model aircraft.In fact, the FAA uses this assumption to offer another justification for ignoring the rulemaking procedures.  The Interim Final Rule notes that the burden on model aircraft and drone flyers would be enormous if they were required to register their craft using the current paper-based registration system.  To avoid that “emergency,” the FAA is justified in proceeding without the required notice-and-comment rules to relieve the burden that would otherwise fall on sUAS operators.As noted above, the FAA is facing another crisis of its own manufacture.  Model aircraft operators have never had to register their aircraft.  Absent the FAA’s decision to require registration, there would be no burden on operators.  Thus, the decision to require registration creates a burden so great that the FAA is justified in shortcutting the rulemaking process, a circular argument for the “streamlined” registration requirement.The FAA’s position is the latest move away from its hands-off attitude towards model aircraft, dating back at least to mid-2014.  In June of last year, the FAA issued its “Interpretation of the Special Rule for Model Aircraft.”  There, the FAA claimed that model aircraft are “subject to all existing FAA regulations.”  More recently, the rules proposed in the Notice of Proposed Rulemaking for sUAS exempt various types of aircraft or flying vehicles from their ambit, such as moored balloons, kits, and amateur rockets, among others, but not model aircraft.Taken together, the FAA’s actions suggest that model aircraft are likely to be subject to increasing regulation.  However, it is unclear how to reconcile the plain text of Section 336 of the 2012 Act with the FAA’s registration scheme or with the FAA’s own interpretation of Section 336, for that matter.  In the Interpretation of the Special Rule for Model Aircraft, the FAA noted that “a model aircraft operated pursuant to the terms of section 336 would potentially be excepted from a UAS aircraft certification rule[.]”  It is difficult to see how a registration requirement is different.The AMA RespondsOn Thursday, December 17, the AMA emailed its members in response to the Interim Final Rule and asked them to refrain from registering their aircraft with the FAA.  The AMA has previously taken issue with the FAA’s interpretation of the “Special Rule for Model Aircraft.”  Last August, the group filed a petition with the United States Court of Appeals for the D.C. Circuit challenging the FAA’s interpretation, a challenge that is still pending.In its email on Thursday, the AMA noted that the central issue is “whether the FAA has the authority to expand the definition of aircraft to include model aircraft; thus, allowing the agency to establish new standards and operating criteria to which model aircraft operators have never been subject to in the past.”  How the court rules on that question will determine whether model aircraft are aircraft, as the FAA views them.The AMA already instructs its members to use a variety of precautions to address the same safety and accountability objectives of the FAA’s drone registry, which puts it in a unique position of arguing against registration while explicitly recognizing some of registration’s benefits.  As the organization argued, however, “we also strongly believe our members are not the problem and should not have to bear the burden of additional regulations.”The AMA’s recommendation to refrain from registration, its pending legal challenge, and the ongoing negotiations with the FAA all highlight the uncertainty that remains (the FAA’s pronouncements notwithstanding).ConclusionThe drone registry appears simple enough, and the FAA’s desire to ensure the safety of the skies is a praiseworthy and reasonable goal.  But lurking beneath the surface are complicated issues of agency process and the FAA’s authority that threaten the registry’s launch.    <a href="#_ftnref1" name="_ftn1">[1]</a> www.faa.gov/uas/registration.<a href="#_ftnref2" name="_ftn2">[2]</a> <a href="https://www.faa.gov/regulations_policies/rulemaking/committees/documents/media/UASRTFARC-102015.pdf">http://www.faa.gov/uas/publications/media/RTFARCFinalReport_11-21-15.pdf</a>.<a href="#_ftnref3" name="_ftn3">[3]</a> Technically, all registrants will be charged $5, but this fee will be refunded if it occurs in the first 30 days of the Interim Final Rule being effective.<a href="#_ftnref4" name="_ftn4">[4]</a> See 5 U.S.C. § 553(b).<a href="#_ftnref5" name="_ftn5">[5]</a> Ibid.<a href="#_ftnref6" name="_ftn6">[6]</a> 5 U.S.C. § 553(b)(3)(B).<a href="#_ftnref7" name="_ftn7">[7]</a> Interim Final Rule, § III.  The FAA states that it “will consider additional comments received following publication of this IFR and make any necessary adjustments in the final rule,” but in all likelihood the Interim Final Rule will not be changed in any material way.<a href="#_ftnref8" name="_ftn8">[8]</a> 2 Am. Jur. 2d Administrative Law § 185 (2012) (emphasis added).<a href="#_ftnref9" name="_ftn9">[9]</a>Air Transport Assoc. of Am. v. Dep’t of Trans., 900 F.2d 369 (D.C. Cir. 1990) (“[T]he FAA is foreclosed from relying on the good cause exception [from the APA,] by its own delay in promulgating the Penalty Rules. The agency waited almost nine months before taking action to implement its authority under section 1475. At oral argument, counsel for the FAA conceded that the delay was largely a product of the agency’s decision to attend to other obligations. We are hardly in a position to second guess the FAA’s choices in determining institutional priorities. But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as ‘good cause’ to avoid the obligations of section 553(b).”).<a href="#_ftnref10" name="_ftn10">[10]</a>  Another potential problem for the FAA is Executive Order 12866, which requires agencies to complete a cost-benefit analysis for rules that, among other things, raise novel legal or policy issues.  Given that drone registration will likely raise both novel legal and policy issues, such an analysis may be required.

FAA Announces Drone Registration, but Legal Challenges Loom

On December 14, 2015, the FAA issued the much-anticipated “Registration and Marking Requirements for Small Unmanned Aircraft Interim Final Rule” (the “Interim F

FAA Announces Drone Registration, but Legal Challenges Loom

On November 21, 2015, the Unmanned Aircraft Systems Registration Task Force Aviation Rulemaking Committee, chartered by the FAA, issued its Final Report to the FAA containing the Task Force’s recommendations for how the FAA should implement a national drone registry system.  With the dueling goals of maintaining safety in the National Airspace System (NAS) while also encouraging the emergence of the nascent UAS industry, the Task Force was given a difficult job:  “develop recommendations for the creation of a registration process” for sUAS.  The Final Report is particularly timely, as somewhere between 500,000 to 1 million drones (nearly all of which will be sUAS) are expected to be sold in the United States over the upcoming holiday season.The Task Force’s RecommendationsAlthough the final report contains ample evidence of disagreement amongst the Task Force’s 25 members (which ranged from Google to DJI to Walmart), a “general consensus” was ultimately reached on the following recommendations:<ol><li>Users must fill out “an electronic registration form through the web or through an application, which would immediately provide the user with an electronic certificate of registration and a personal universal registration number for use on all sUAS owned by that person.”</li><li>The registration number must be marked on the sUAS before operations in the NAS in a way that is “readily accessible.” A user could also opt to identify the drone using the unique serial number provided by the manufacturer in lieu of using the FAA-generated registration number.</li><li>The registrant must be at least 13 years old and provide his or her name and physical address to the FAA.</li><li>Registration should encompass an “education component,” similar to Know Before You Fly.<a href="#_ftn1" name="_ftnref1">[1]</a></li><li>Drones that weigh 250 grams or less, including the aircraft, payload, and any other associated weight, would be exempted from the registration requirement.</li></ol>According to the Task Force, these recommendations will serve the goals of: (i) educating users on the safe operating rules for sUAS; (ii) linking a sUAS to the operator in the event of an incident or accident; and (iii) taking a risk-based approach to registration.Although the recommendations appear straightforward, they leave some unanswered questions.  For example, how useful will a registration number be in the event a drone actually collides with, and is completely destroyed by, a manned aircraft?  And what good is the 250 gram exemption when nearly every drone, even toys, weighs more than that?  The Task Force implicitly acknowledged these questions, but did not answer them, citing the “time-limited tasking” they were given by the FAA.Despite these questions, it is anticipated that the FAA will adopt, in large part, the Task Force’s recommendations and issue a “direct final rule” requiring registration through its “emergency” rulemaking power under the Administrative Procedure Act (APA).  In doing so, the FAA will ignore outstanding legal questions about the process by which it will issue the registration rule, as well as whether it even possesses the underlying authority to adopt the rule.The FAA’s “Emergency” RulemakingGenerally speaking, under the APA, an agency like the FAA cannot make rules without giving the public notice and an opportunity to comment on the proposed rule.  See 5 U.S.C. § 553(b).  In limited circumstances, however, an agency can forgo the standard notice-and-comment requirements and directly issue a final rule. 5 U.S.C. § 553(b)(3).  Pertinent here, when an “agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest,” the notice-and-comment period can be bypassed. 5 U.S.C. § 553(b)(3)(B).“Emergency rulemaking” usually follows situations that require immediate action (such as a national disaster), minor technical amendments that do not affect the substantive law, or instances where Congress has directed the action in legislation.  Nonetheless, the FAA is apparently considering the absence of rules regarding public registration of drones to be an “emergency,” and it appears ready to issue a final rule without allowing for public comment.Under the “good cause” exemption, the FAA itself determines whether to invoke emergency rulemaking, and challenges to the final rules can only be filed after the rules are promulgated.  Moreover, despite courts’ cautioning they will “narrowly construe” agency actions utilizing the emergency rulemaking exception, in reality the agency’s action is often left untouched.It is unlikely the FAA will try to justify emergency rulemaking by stating that the public interest is not involved (in fact, the Task Force’s Report proves the opposite).  Moreover, because the notice-and-comment requirements are presumptively applicable to all substantive rulemaking, the FAA likely will not attempt to assert that the traditional rulemaking process is “unnecessary.”  Thus, the FAA will likely try to justify this “emergency” treatment on the ground that the notice-and-comment period is “impracticable.”“Impracticable” has generally been defined to refer to a situation in which the required execution of agency functions would be unavoidably prevented by public rulemaking proceedings.  However, “time constraints” and the “imminence of a deadline” are considered “inadequate justifications to invoke the good-cause exemption, especially when it would have been possible to comply with [a] statutory deadline.”<a href="#_ftn2" name="_ftnref2">[2]</a>  Put another way, an agency cannot create its own “emergency” (intentionally or otherwise) by delaying announcement of proposed rules.That begs the question:  is the FAA’s emergency rulemaking for drone registration valid?On February 14, 2012, in the FAA Modernization and Reform Act of 2012 (the “2012 Act”), Congress instructed the FAA to issue rules for the “safe integration” of UAS by September 30, 2015.  Although the FAA has issued its Notice ofProposed Rulemaking, and comment period has closed, the FAA has yet to finalize these rules, despite nearly four years lapsing between Congress’s mandate and today.With that background, the FAA now intends to issue the Registration Rules directly within the next month, presumably before the massive influx of sUAS enters the NAS this holiday season.  If the holiday shopping “deadline” is the impetus for the FAA’s “emergency” rulemaking, it seems that the FAA is the cause of its own crisis, and its action may be vulnerable if challenged.In an analogous situation, the FAA claimed that “good cause” was present, and bypassed the notice-and-comment requirements, when promulgating Penalty Rules for violations of FAA regulations.<a href="#_ftn3" name="_ftnref3">[3]</a>  There, a private petitioner challenged the FAA’s action and a federal appellate court held that the FAA was required to follow the APA’s notice-and-comment requirements because the rule substantially affected the petitioner’s (and others’ similarly situated) substantive rights.  The Court further pointed out that the “good cause” exception should be used for “housekeeping” matters, which are traditionally thought of as purely procedural rules.  Notably, in that case, the FAA waited only 9 months to begin promulgating the rules.  Here, it has waited years.If an agency can create its own emergency to bypass the APA’s notice-and-comment requirements, public comment will effectively be optional for agencies.  This not only creates perverse incentives for agencies directed to make rules for hotly debated topics like drones to do so through emergency rulemaking in the hopes of avoiding extensive and controversial public comment, but it also, ironically, threatens to slow down the entire rulemaking process, as lawsuits will inevitably follow such actions.<a href="#_ftn4" name="_ftnref4">[4]</a>Hobbling the Hobbyists?In addition to the FAA’s procedural shortcuts, the issues of both who and what the registry would encompass present legal challenges.  Under the Task Force’s model, registration would apply to commercial and hobbyist users alike.  In addition, users wouldn’t be registering their drones with the FAA; they would be registering themselves.Traditionally, model aircraft flown for hobby or recreational purposes have not been subject to any registration requirements.  This understanding was codified under Section 336 of the 2012 Act, which provides that “notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies . . . the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft,” so long the aircraft meet certain criteria.  Congress defined “model aircraft” under Section 336 as “an unmanned aircraft that is capable of sustained flight in the atmosphere, flown within visual line of sight of the person operating the aircraft, and flown for hobby or recreational purposes.”According to the FAA, the 2012 Act does not affect its ability to require registration of drones flown for hobby or recreational purposes.  The agency’s stance is that registration has been exempted for model aircraft only through the use of its own discretion, and that prior law unrelated to the incorporation of UAS into FAA plans and policies, specifically 49 U.S.C. 44101(a), gives it the authority to require registration of model aircraft.  Notably, the Task Force recognized that, despite the FAA’s assertions, the agency may actually lack authority to require registration of drones used for hobby or recreational purposes.  Nonetheless, the Task Force did not address that issue because it was “outside the scope of the Task Force’s objectives[.]”The FAA’s position is the latest move away from its hands-off attitude towards model aircraft, dating back at least to mid-2014.  In June of last year, the FAA issued its “Interpretation of the Special Rule for Model Aircraft.”  There, the FAA claimed that model aircraft are “subject to all existing FAA regulations.”  More recently, the rules proposed in the Notice of Proposed Rulemaking for sUAS exempt various types of aircraft or flying vehicles from their ambit, such as moored balloons, kits, amateur rockets, among others, but not model aircraft.Taken together, the FAA’s actions suggest that model aircraft are likely to be subject to increasing regulation.  However, it is unclear how to reconcile the plain text of Section 336 of the 2012 Act with the FAA’s registration scheme or with the FAA’s own interpretation of Section 336, for that matter.  In the Interpretation of the Special Rule for Model Aircraft, the FAA noted that “a model aircraft operated pursuant to the terms of section 336 would potentially be excepted from a UAS aircraft certification rule[.]”  It is difficult to see how a registration requirement is different.A second and distinct question concerns whether the FAA has the authority to register people, as opposed to planes, as the Task Force recommends through its one-unique-number-per-person plan.  The FAA has stated that it has the authority to require the registration of any “aircraft” that flies in the NAS, but if a user has many unique aircraft all with the same number, it is the person, not the aircraft, that is being tracked.Other conflicts abound.  Under current law, in order to register an aircraft, the aircraft must be owned by a citizen of the United States, a lawful permanent resident, or a corporation doing business under the laws of the United States or a state.  49 U.S.C. § 44102. Yet, the Task Force recommends a rule that would not require citizenship or lawful permanent resident status.  If “aircraft” is the registration hook for the FAA, these other statutory requirements might apply to sUAS users.ConclusionThe Task Force’s recommendations appear simple enough.  But lurking beneath the surface are complicated issues of agency process and the FAA’s authority that may be primed for takeoff.  <a href="#_ftnref1" name="_ftn1">[1]</a> <a href="http://knowbeforeyoufly.org/">http://knowbeforeyoufly.org/</a>.<a href="#_ftnref2" name="_ftn2">[2]</a> 2 Am. Jur. 2d Administrative Law § 185 (2012) (emphasis added).<a href="#_ftnref3" name="_ftn3">[3]</a>Air Transport Assoc. of Am. v. Dep’t of Trans., 900 F.2d 369 (D.C. Cir. 1990) (“[T]he FAA is foreclosed from relying on the good cause exception [from the APA,] by its own delay in promulgating the Penalty Rules. The agency waited almost nine months before taking action to implement its authority under section 1475. At oral argument, counsel for the FAA conceded that the delay was largely a product of the agency’s decision to attend to other obligations. We are hardly in a position to second guess the FAA’s choices in determining institutional priorities. But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).”).<a href="#_ftnref4" name="_ftn4">[4]</a>  Another potential problem for the FAA is Executive Order 12866, which requires agencies to complete a cost- benefit analysis for rules that, among other things, raise novel legal or policy issues.  Given that drone registration will likely raise both novel legal and policy issues, such an analysis may be required.

Task Force Makes Drone Registration Recommendations Expected to Be Adopted by the FAA, But on What Authority?

On November 21, 2015, the Unmanned Aircraft Systems Registration Task Force Aviation Rulemaking Committee, chartered by the FAA, issued its Final Report to the 

Task Force Makes Drone Registration Recommendations Expected to Be Adopted by the FAA, But on What Authority?

On October 19, 2015, U.S. Transportation Secretary Anthony Foxx and Federal Aviation Administration (FAA) Administrator Michael Huerta announced a plan to require unmanned aircraft vehicle (UAV or “drone”) users to register their UAVs with the FAA.  While commercial users were already subject to registration requirements, the new scheme would extend to recreational users, a group expected to swell by millions in the coming holiday season.  Coming close on the heels of the FAA’s unprecedented $1.9 million proposed penalty against SkyPan International, Inc. (“SkyPan”), the announcement suggests that the FAA is under pressure to respond to popular concerns around soaring drone use and increasing reports of unsafe drone operation.The FAA’s Registration PlanSecretary Foxx noted that the registration scheme will further at least two key goals of the FAA.  First, it provides the agency with an opportunity to engage and educate new users regarding safe drone operations before these new users start flying.  Second, and perhaps more importantly, “Registration of all aircraft, including, unmanned aircraft, is an important part of ensuring accountability,” said Foxx.  Where drone operators do break the rules, a registration requirement ensures investigators can identify an operator—or at least an owner—from a drone involved in an incident.While the shape and scope of the registration program remains undetermined, the FAA is aiming to have a system in place prior to the holiday season.  This accelerated timeline is in stark contrast to the typical FAA process where the proposal and comment process can stretch a year or more, as well as the FAA’s repeated inability to meet deadlines for issuing regulations for drones.  The FAA has assembled a task force, including representatives from industry groups, government officials, and experts from leading drone companies, to explore how to create a registration program that ensures appropriate registration of drones without becoming overly burdensome.  The task force’s recommendations are due by November 20, 2015.The FAA’s initial announcement was light on details about how the registration scheme would be implemented.  Given the incredible diversity of vehicles that could be considered a “drone,” there was immediate concern about the scope of the registration requirement.  Some commentators noted that the registration scheme for commercial drones requires actual carbon copy forms to complete, a process that would be near-impossible to scale to meet the demands of the exploding consumer drone market.  On Thursday, October 22, 2015, however, the agency published a “<a href="https://www.federalregister.gov/articles/2015/10/22/2015-26874/clarification-of-the-applicability-of-aircraft-registration-requirements-for-unmanned-aircraft">Clarification and Request for Information</a>” regarding the announcement, inviting public comment on the registration plan and demonstrating that the agency is aware of the difficult questions the plan raises.The FAA specifically requested “information and recommendations regarding what information and registration platform would be appropriate for [UAV] registration and ways to minimize the burden to the regulated community.”  In addition, the agency asked for feedback regarding “which [UAVs], based on their weight or performance capabilities, warrant a continued exercise of discretion with respect to requiring registration because of the negligible risk they pose to the national airspace system.”  The window for public comment closes November 6, 2015.While the FAA’s request for comment is an encouraging sign that it recognizes the issues and challenges of requiring registration, how the FAA will address those remains to be seen.  Among these are: who should bear the burden of creating and administering the program; how should costs be allocated among the government, industry, and users; what drones should be subject to the registration requirement; and how should the FAA address the millions of existing drones in the marketplace.Efficacy Questions and Legal HurdlesBoth Foxx and FAA Administrator Michael Huerta cited the safety concerns posed increasing drone use as driving the registration requirement.  Not surprisingly, the FAA is likely to rely on the public safety issue to justify bypassing normal rulemaking procedures.  Yet how the registration program itself will address those issues is unclear.  For instance, the FAA recently released a report in August titled “Pilot Reports of Close Calls with Drones Soar in 2015,” documenting reports of drone sightings.  Overwhelmingly, the cases involved pilots seeing drones at a distance and even in the ten cases where pilots took evasive action, the drone involved was not recovered.  It’s unclear how the registration requirement would address the safety issues in such cases or increase accountability.Also left unspecified was how the agency intends to deal with existing drones. The agency appears to be assuming the requirement will apply retroactively.  “One of the things the task force will look at is what sorts of provisions will be made for people who already own drones.  We would expect retroactive registration.  There may be a grace period, the task force will make a recommendation,” Foxx said.In addition, whether the FAA is limited in its ability to require registration by existing legislation governing the FAA’s authority over recreational drone users remains uncertain.  The FAA Modernization and Reform Act of 2012 included limits on the FAA’s ability to make rules or regulations for model aircraft under 55 pounds flown strictly for recreational or hobby use.  We expect the FAA will face legal challenges to its authority to make registration a requirement for recreational drone use.Finally, some industry observers are extremely skeptical of the FAA’s ability to create a registration system on the timeline the agency has proposed.  Jim Williams, the former top drone official at the FAA, told the Wall Street Journal that the timeline was “unprecedented” and if the FAA managed to hit its goals, “[i]t would be the most amazing feat of governance I’ve seen in my 33 years in the federal government.”The SkyPan Fine: Facts of the IncidentThe FAA’s recent registration announcement follows the announcement of a nearly $2 million proposed civil penalty against an urban drone operator—SkyPan International—for “endangering the safety of our airspace.”SkyPan is a Chicago-based aerial photography company. According to SkyPan’s website, the company uses proprietary Remote Piloted Vehicles (RPVs) to shoot aerial and panoramic photographs for developers and construction and marketing companies. SkyPan is a Section 333 UAS Exemption Holder for flying its RPVs to conduct its commercial operations, but that exemption is subject to strict limitations.The FAA alleged that SkyPan conducted 65 unauthorized commercial UAV flights over New York City and Chicago airspace between March 21, 2012 and December 15, 2014, including 43 flights that flew in the highly restricted New York Class B airspace without air traffic control clearance.  The FAA alleges that the operations violated airspace regulations and various operating rules as the UAVs used in flights did not meet federal requirements.  The UAVs in question were flown without the necessary air-traffic-control clearance and were not equipped with two-way radios, transponders, and altitude-reporting equipment.  The drones also lacked airworthiness certificates and effective registrations, and SkyPan did not have a Certificate of Waiver or Authorization from the FAA for the operations.In its press release, the FAA alleged that SkyPan operated the aircraft in a “careless or reckless manner so as to endanger lives or property.”  Huerta said, “Flying unmanned aircraft in violation of the Federal Aviation Regulations is illegal and can be dangerous.  We have the safest airspace in the world, and everyone who uses it must understand and observe our comprehensive set of rules and regulations.”SkyPan has 30 days after receiving the FAA’s enforcement letter to respond to the agency, and potentially appeal the proposed penalties.The FAA StirsThe proposed penalty is almost a hundred times greater than any past fine for drone operations.  According to the FAA’s spokesperson, Les Dorr, the largest fine before the proposed action against SkyPan was lodged against Xizmo Media, a New York video production company, for $18,700.  Dorr indicated that most fines have ranged between $1,100 to $5,000.The FAA stated that one reason for the size of the fine was that FAA inspectors had issued several warnings to SkyPan regarding the flights, but the company had continued with its activities.  Huerta stated that “Clearly this was not inadvertent, someone making a mistake.  What we saw here was a pattern of disregard for FAA rules.”  Huerta said SkyPan stopped violating the rules this year, and the FAA approved SkyPan to use drones commercially after it submitted a plan to mitigate risk.Increasing concern on the part of legislators may help explain the FAA’s new sense of urgency.  On October 7, 2015, the House Subcommittee on Aviation convened a hearing on “Ensuring Aviation Safety in the Era of Unmanned Aircraft Systems,” which focused on ensuring aviation safety in the era of UAVs.  In the face of the increasing popularity of UAVs in the United States, the panel voiced concern about the FAA’s lack of progress in curtailing the risk of the sheer number of UAVs in U.S. airspace.More recently, on October 28, the Senate Subcommittee on Transportation, Housing & Urban Development questioned FAA chief Huerta on the agency’s failure to meet deadlines for finalizing drone regulations and how the agency planned to deal with safety concerns.  Reading from a prepared statement, Huerta called out the SkyPan fine as “a clear message to others who might pose a safety risk: Operate within the law or we will take action.”Even as the FAA sent a clear message on safety, however, Huerta’s comments raised additional questions about the scope of the proposed registration requirement.  The FAA chief hedged on whether the registration requirement would extend to model aircraft, highlighting the ongoing uncertainty around the agency’s next steps.Questions RemainingThe proposed SkyPan fine indicates to drone operators that the FAA will pursue vigorous enforcement actions, on a scale not previously seen, against those operators flagrantly violating the rules.  Yet the details of SkyPan’s flights have raised questions about how broadly the FAA intends to wield this authority.  SkyPan itself received a Section 333 UAS Exemption from the FAA in April this year, having submitted its application on December 22, 2014, shortly before the process was set forth in the NPRM.The FAA’s allegations encompass flights occurring as far back as 2012, when the regulatory framework, and the scope of the FAA’s authority, was less certain than it is today.  The agency’s proposed fine has intensified concerns about the lack of a clear regulatory framework governing UAV operators, particularly as SkyPan’s case shows the risk of large penalties for noncompliance.Similarly, while the FAA has stated that the details of the registration requirement have yet to be determined, an FAA spokesman told the New York Times that failure to register a drone would trigger civil fines of up to $27,500, and “if warranted,” criminal penalties up to $250,000 or up to three years in jail, or both.  The threat of such dire penalties, coupled with the extension of the registration requirement to existing operators, only heightens the stakes for the program and the potential threat to the drone industry generally.Next StepsBetween the SkyPan proposed penalty and the plan for a registration program, the FAA has demonstrated that it is willing to act to protect airspace safety.  It remains to be seen, however, whether the FAA’s new aggressive enforcement stance and registration plans will actually lead to safer, or more predictable, skies.

The FAA (Re)Acts: Drone Registration, a Federal Task Force, and Hefty Fines

On October 19, 2015, U.S. Transportation Secretary Anthony Foxx and Federal Aviation Administration (FAA) Administrator Michael Huerta announced a plan to requi

The FAA (Re)Acts: Drone Registration, a Federal Task Force, and Hefty Fines

Iconic California tech companies are helping to pioneer the drone revolution.  For over a year, Google’s advanced-research arm, Google X, has been testing its Project Wing aircraft in cooperation with NASA, moving ever-closer to its goal of deploying a fleet of drones to deliver goods to customers.  Elsewhere, Amazon, another tech giant, is building its own drone program, Prime Air, “a future delivery system from Amazon designed to safely get packages into customers’ hands in 30 minutes or less using small unmanned aerial vehicles.”  But drones are not the exclusive province of tech giants.  Countless startups with their eyes to the sky are adapting drone technology to many industries.  And California has emerged as the launching point.California Governor Jerry Brown has long supported technological innovation.  In 2012, for instance, he signed legislation that opened the door for testing autonomous vehicles in California.  So it should come as no surprise that Governor Brown considered bills to regulate drones with a critical eye following the recently concluded legislative session.SB 142 would have prohibited flying a drone below 350 feet unless the operator obtained express permission from the owners of property under the drone’s flight path.  Proposed by Hannah-Beth Jackson, D-Santa Barbara, the bill was meant to address privacy concerns.  The Governor vetoed it, explaining that “[t]his bill. . .while well-intentioned, could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation. . .Before we go down that path, let’s look at this more carefully.”  Brown’s veto turned away a significant threat to California’s leading role in the drone revolution.Governor Brown also vetoed SB 168, which would have protected emergency responders from interference by drones when performing their duties.  Ted Gaines, R-El Dorado, introduced the bill because drones have been increasingly present at wildfires across California this year, in some cases hindering emergency operations.  The proposed law would have granted emergency responders immunity for damaging or destroying drones to remove them from the air.  It would also subject drone operators to fines of up to $5,000 and six months in jail.The one drone regulation bill approved by the Governor is intended to protect individuals from hi-tech paparazzi.  AB 856  proposed by Ian Calderon, D-Whitter, effectively amends the definition of “physical invasion of privacy” to cover instances in which paparazzi send drones into the air above someone’s land in order to capture photo or video.State and Local AirspaceSB 142 would have represented one of the more restrictive approaches to the operation of drones in the United States.  Forty-five states have considered 164 bills regulating drone operations, but often these regulatory measures aim to limit the use of drones for surveillance, rather than limiting drone flight altogether.  Florida, for example, prohibits a drone operator from capturing images of privately owned property without permission.  Texas prohibits drones from flying over critical infrastructure facilities but, at the same time, expressly allows individuals in certain professions to capture images used in those professions as long as no individual is identifiable in the image.Some states have also passed regulations prescribing how government agencies may use drones, including law-enforcement agencies.  Virginia’s HB 2125, entitled “Use of unmanned aircraft systems; search warrant required,” includes an “absolute prohibition on the use of unmanned aircraft systems by such law-enforcement and regulatory entities unless a search warrant has been obtained prior to such use.”  New Jersey’s similar bill not only would require government agencies to obtain a warrant prior to drone use in law enforcement, but also mandates that any data collected by the drone be deleted within two weeks of its collection.Keep Your Eyes PeeledDespite Governor Brown’s vetoes and a flurry of activity in state legislatures, the future of drone regulation could be largely determined by federal lawmakers.  The law applicable to drone operations depends, to a significant extent, on whether the anticipated regulations from the FAA “preempt” state and local authority.Drone manufacturers, suppliers, and operators want uniform federal standards for operations, rather than a state-to-state crazy quilt.  For this reason, many have called for inclusion of an “express preemption clause” in the ongoing FAA rulemaking for small Unmanned Air Systems to foreclose state and local governments from enforcing conflicting laws.  Absent an express preemption provision in the final rules, state and local regulation is not foreclosed but would instead be analyzed under existing conflict preemption principles on a case‑by‑case basis.  Because courts have often held that state regulation of traditional aircraft in the area of safety and operations is preempted by federal regulation, it would not be surprising if courts find that final federal regulations preempt at least some state laws in this area even in the absence of an express preemption provision.The FAA has yet to issue final regulations and clarify the legal landscape, but one thing is clear: the drone revolution is underway, and, in the United States, California is continuing to lead the charge.

Friendly Skies in California After Governor Brown Vetoes Drone Restrictions, Federal Response Uncertain

Iconic California tech companies are helping to pioneer the drone revolution.  For over a year, Google’s advanced-research arm, Google X, has been testing its P

Friendly Skies in California After Governor Brown Vetoes Drone Restrictions, Federal Response Uncertain

The FAA’s regulatory actions on unmanned aircraft systems (“UAS”) are accelerating, making it more important than ever for those in the industry—and those looking to use this technology in their own sectors—to keep their eyes on Washington.At a drone industry conference earlier this month, the FAA announced a new partnership to explore the future of UAS operations, beyond the limited range of operations permitted by the draft rules the agency released in February.  The focus of the FAA program, called “Pathfinder,” is on three areas that have been the subject of much discussion after the release of the draft rules: visual line-of-sight operations in urban and populated areas, extended line-of-sight operations in rural areas, and beyond visual line-of-sight operations.The Pathfinder program bodes well for the future of drone regulation.  In the wake of the Notice of Proposed Rulemaking (NPRM) for small UAS, many drone operators struggled to see how the FAA’s rulemaking process could keep up with the pace of innovation, and permit the most promising technologies to take flight.  Last week’s announcement is a significant step by the FAA to formalize its efforts to understand the risks and rewards of increasingly sophisticated drone operations.Accelerating Agency ActionThe recent announcement is the latest example of the FAA’s evolution in drone regulation.  The process leading to release of the NPRM in February was slow, even by federal regulatory standards, as the agency struggled to meet its own deadlines to come up with rules for the sky.  The NPRM was generally seen as a step in the right direction, but many in the drone industry and among potential users argued that the NPRM’s proposed prohibition on drone operations beyond the user’s line of sight limited some of the most significant potential applications of drones.Since the NPRM’s release, there have been several encouraging signs that the agency is taking a more flexible approach:First, in late March, the agency relaxed the application process for Certificates of Authorization (“COAs”). Essentially, the FAA created a blanket COA for drone users who had already received an exemption from certain regulations (known as a “Section 333 exemption”).  Previously, COAs covered relatively limited areas, requiring drone operators to apply for a new COA any time they wished to fly in another region, a process that could entail months before an FAA decision.  Under the new COA, existing exemption holders can fly effectively anywhere nationwide under 200 feet, subject to a handful of safety restrictions (such as avoiding airports).Second, in April, the FAA acted quickly after Amazon said the agency had taken so long to approve its request to test delivery drones that its drones were obsolete by the time the FAA made its decision.  Responding in a matter of weeks, the agency approved Amazon delivery test flights using its newer drones.  Those flights could take place up to 400 feet high at up to 100 miles an hour over private property and within sight of the remote-control pilot or a designated observer.Third, the FAA in April announced a summary grant process for Section 333 exemptions. Under this process, the FAA will continue to review each individual application, but will issue a summary grant where it finds that it has already granted a previous exemption similar to the request.  The FAA also relaxed the requirement that the individual operator hold a commercial or private pilot certificate and at least a third-class airman’s medical certificate.  Going forward, the FAA will allow exemptions for individuals holding a sport or recreational pilot certificate, and a driver’s license in place of a medical certificate. The lower standard is significantly easier to meet and reduces the burden (and especially costs) on drone operators.Fourth, non-regulatory FAA actions in the drone world are coming at a faster clip as well.  The FAA announced, in addition to the Pathfinder program, a new smartphone app, B4UFly, to help operators determine restrictions that may apply to their flight paths.  The app announcement follows close on the heels of the release of AirMap.io, a free iOS and Android app created by Pepperdine School of Law professor Greg McNeal and Ben Marcus that shows users where it is safe to fly.  A little over a week ago, the FAA announced that Mississippi State University will lead a team of 13 universities in running a new national center to research unmanned aerial vehicles.  The Alliance for System Safety of UAS through Research Excellence (ASSURE) will help the FAA research technologies and systems to safely integrate drones and manned aircraft in the same airspace.Industry EngagementThe Pathfinder program signals an increasing effort to engage with the drone industry, even when the agency cannot accelerate the rule making process.  To that end, the agency is using industry partnerships to understand the risks and opportunities associated with different types of drone operations.The FAA will collaborate with CNN to explore drone use by journalists in populated areas, while keeping the drones in sight.  The FAA and PrecisionHawk, a leading manufacturer and service provider for agricultural applications, will examine extended line-of-sight drone use in precision agricultural operations.  And BNSF Railroad and the agency will explore command-and-control challenges when operating beyond visual contact, such as inspecting rail system infrastructure.“What we’re trying to do here is push the envelope,” FAA Administrator Michael Huerta told reporters at the Association for Unmanned Vehicle Systems International (AUVSI) conference in Atlanta, according to The Wall Street Journal. “The rule-making process is deliberative so we’re actively looking for other things we can do and ways we can expand use of unmanned aircraft in the meantime.”The agency indicated that the companies had reached out to the FAA to explore potential partnerships, and Huerta told attendees at the conference, “You can interpret that as an invitation.”  This presents an intriguing opportunity for drone operators to help the FAA understand the potential benefits of drone technology.Huerta also said the results of the research the FAA will conduct with the program’s three partners will “help us determine if and how we can safely expand unmanned-aircraft operations in the United States,” according to The National Journal.  The agency tweeted that the program “could result in FAA-approved operations in the next few years.”Media Use of UASLess celebrated was the FAA’s release of a legal memo from the Chief Counsel’s Office titled Media Use of UAS.  The memo addresses under what circumstances photography captured by drones can be legally sold—an area blurred by the widespread commercial availability of drones that can capture professional-quality images.According to the memo, absent FAA permission, news organizations cannot use drones to take news photos because those operations do not qualify for the hobbyist exemption.  “Because the use of an unmanned aircraft by a media entity to gather news would be in furtherance of that entity’s business, the operations would fail the ‘hobby or recreation’ test of [the FAA Modernization Act of 2012],” the agency said.Similarly, professional photographers cannot sell their photos to news organizations with FAA approval if the photos were captured by drone.  The FAA allows for some wiggle room where a hobbyist has captured newsworthy images: “If the individual[] takes the pictures or videos or gathers other information as part of a hobby or recreational activity, then a later decision to sell some or all of those pictures, videos or other information” does not necessarily require FAA permission.  The ambiguity in determining when someone goes from a hobbyist occasionally selling pictures to a professional drone photographer is reflected in the memo’s final sentence: “The FAA would have to consider each case on its own merits.”The memo fails to address the potential free-speech concern with limiting drone journalism.  In 2014, a group of 15 media companies filed an amicus brief in Huerta v. Pirker, arguing that the media’s use of drones was protected by the Constitution.  The brief, whose co-authors included The New York Times, Associated Press, and Washington Post, claimed that the “FAA’s position is untenable as it rests on a fundamental misunderstanding about journalism.  News gathering is not a ‘business purpose’: It is a First Amendment right.”This most recent FAA memo, which only spans two pages, highlights the challenges faced by an agency attempting to make decisions on the fly.  While the FAA continues to review the comments submitted on the NPRM, it remains unclear what form final drone regulations for small UAS will take, much less the later comprehensive regulations addressing larger drones.  In the interim, the FAA’s piecemeal efforts to address the commercial uses of drones run the risk of regulatory uncertainty and contradiction.  For instance, last week’s FAA memo comes after a March brouhaha precipitated by the FAA’s sending letters to YouTube users who had posted drone footage.  YouTube users have the option of allowing ads to run before their footage.  According the letters from the FAA, this meant that hobbyists were commercial operators and in violation of the FAA’s drone rules.  A few weeks later, John Duncan, director of the FAA’s Flight Standard Service, told FAA inspectors to cease sending the letters.  The memo noted that a video “is ordinarily not sufficient evidence alone to determine” a violation of drone rules.These speed bumps notwithstanding, the FAA’s accelerated pace of action is a welcome change. The Pathfinder program and the FAA’s new dynamism suggest the drone industry may soon face less of a regulatory headwind as it takes flight.

Drones: FAA Announces Pathfinder Program to Explore BVLOS and Urban Drone Operations

The FAA’s regulatory actions on unmanned aircraft systems (“UAS”) are accelerating, making it more important than ever for those in the industry—and those looki

Drones: FAA Announces Pathfinder Program to Explore BVLOS and Urban Drone Operations

Over the weekend the FAA issued a much-anticipated Notice of Proposed Rulemaking (NPRM) for small UAS—i.e., drones weighing less than 55 pounds.  The oft-delayed NPRM comes three years after Congress—through the FAA Modernization and Reform Act of 2012 (the “2012 Act”)—directed the FAA to develop and implement “comprehensive” regulations to safely integrate drones into the national airspace.  The NPRM initiates what is expected to be a years-long process of rulemaking to establish the regulatory regime for drones of all shapes and sizes.By and large, the NPRM represents a practical approach to allowing low-risk UAS operations during the day in uncongested airspace within the visual line of sight of the operator, and subject to speed, altitude, and weight restrictions.  The NPRM also creates a new class of UAS pilot qualifications, recognizing that the FAA’s current process for pilot certification is not a good fit for UAS.  For the most part, the restrictions proposed by the NPRM are a somewhat more relaxed version of those the FAA has been imposing on operators who sought early permission to operate through the Section 333 Exemption process.  Additionally the NPRM contemplates the possibility of adopting much less stringent restrictions for UAS weighing less than 4.4 pounds, recognizing the reduced risk profile associated with these “Micro UAS.”  It’s likely that, on balance, the NPRM will be viewed by many with an interest in commercial and other uses of drones as a step in the right direction.Practical as it may be, it’s worth noting that this NPRM is not the “comprehensive” set of regulations that Congress mandated the FAA issue in Section 332 of the 2012 Act.  In fact, the NPRM uses Section 333 of the 2012 Act as the basis for its authority to issue the present NPRM, not Section 332(b), which mandates the “comprehensive” rulemaking.  Section 333 merely permits the FAA to allow some UAS operations in the national airspace before the comprehensive rulemaking required by Section 332(b) takes place.  In view of this, it makes sense that the restrictions proposed by the NPRM in some respects mirror those in recent Section 333 Exemption grants.  Essentially, this NPRM creates a blanket Section 333 Exemption for certain categories of operations that the FAA has deemed to be safe.  The NPRM is the FAA’s way of incrementally permitting limited UAS operations in advance of its comprehensive effort to fully integrate UAS into the national airspace.What is notable about this approach is the FAA’s signaling that a comprehensive set of rules to address what the FAA views as more advanced, higher-risk operations is still to come.  This future “comprehensive” rulemaking will likely address UAS operations that would not be authorized by the rules proposed in the current NPRM, including autonomous operations beyond the visual line of the sight of the operator and those that require sense and avoid technology.The FAA’s incremental approach is likely to please operators with low-risk profiles.  It permits limited UAS operations, buying the FAA time to understand the state of advanced UAS technology, create a plan to incorporate UAS into its NextGen implementation, and oversee the development (likely in partnership with NASA) of “highways in the sky” for advanced UAS operations in more crowded airspace.  It also shows, however, just how far behind the industry the FAA actually is, in not authorizing—at least for now—the use of advanced UAS technology that could revolutionize how business is done.How We Got HereThe road to the NPRM has been long and winding, starting with FAA’s 2007 Policy Statement, “Unmanned Aircraft Operations in the National Airspace System.”  There, the FAA laid out a blanket prohibition on UAS operations:  “No person may operate a UAS in the National Airspace System without specific authority[.]”  According to the FAA, there was only one way to obtain that authority:  “apply directly to the FAA for permission to fly.”<a href="#_ftn1" name="_ftnref1">[1]</a>  The 2007 Policy Statement recognized that “[r]egulatory standards need to be developed to enable current technology for unmanned aircraft to comply with Title 14 Code of Federal Regulations[.]”In 2012, Congress formalized the FAA’s regulatory mission:  “provide for the safe integration of civil unmanned aircraft systems into the national airspace system[.]”  But the FAA lagged (and continues to lag) behind the ambitious schedule that Congress set for it.  Indeed, the present NPRM is merely a first step towards integration in a “phased” approach that is likely to take the FAA years to complete.  As noted above, the proposed rule does not purport to implement Congress’s mandate in the 2012 Act to issue comprehensive regulations.The NPRM’s Provisions and Restrictions:  Operational Limitations and Operator Qualifications for Small UASThe NPRM’s key provisions affecting operations for UAS weighing up to 55 pounds can be placed into two categories:  those concerning the operation of the UAS and those concerning the operator of the UAS.With regard to the first category—operational limitations—the FAA essentially stuck to the existing Section 333 exemption script, with a few minor adjustments.  Operations must be conducted during the daytime, and the operator must have the UAS in his visual line of sight (if operating the UAS alone), or be capable of having the UAS in his visual line of sight (if operating with the aid of a visual observer).  Operations cannot be conducted over people who are not involved in the operations, and must be done at less than 100 mph (87 knots) and no more than 500 feet above the ground.  These parameters should allow for many rural and contained uses of UAS, including applications for industrial-scale agriculture; energy generation, transmission, production, and pipeline facilities; transportation infrastructure, including railways, roads, ports, and waterways, and the rolling stock, vehicles, and vessels that use them; private and public emergency response (e.g., fire, flooding); and resource assessment, monitoring, and compliance.With regard to the second category—operator qualifications—the FAA departed from its past Section 333 Exemptions (and from what many expected) by not requiring that a UAS operator have a private pilot’s license.  Recognizing that requiring a private or commercial license would pose an “undue burden” on UAS operators and would have “limited relevance to the nature of small UAS operations,” the FAA instead opted to create a new category of airman certificate for small UAS operators.  In order to be certified, an operator would have to (i) be at least 17 years old; (ii) pass an initial knowledge test; (iii) be vetted by the TSA; (iv) obtain an unmanned aircraft operator certificate with a small UAS rating; (v) pass recurrent testing; and (vi) make the UAS available to the FAA for inspections, as well as report accidents to the FAA and conduct certain pre-flight inspections.Different Standards for Micro UASThe FAA is also seeking comment on whether it should adopt a different set of rules for Micro UAS—i.e., drones weighing up to 4.4 pounds that are made out of frangible materials that break or yield on impact, so as to present a minimal hazard to persons or structures with which the Micro UAS may collide.  The key proposed operational limitations for Micro UAS would be:  (i) a maximum airspeed of 30 knots; (ii) a maximum altitude of 400 feet above ground level; (iii) a maximum distance from the operator of 1,500 feet within the unaided visual line of sight of the operator; and (iv) operations conducted in Class G (unrestricted) airspace only.  These limitations are, in large part, based on the rules already adopted by Transport Canada.Most importantly, the NPRM contemplates that Micro UAS operations may be conducted “directly over people not involved in the operation.”  Authorizing such operations directly over uninvolved individuals may have significant implications for many urban operations, which—simply put—would not be permitted under the proposed rules applicable to UAS weighing between 4.5 and 55 pounds.  The Micro UAS rules are also likely to raise additional privacy concerns not present when operations are not permitted over uninvolved people.The operator qualifications for Micro UAS would also be different than those for other small UAS.  The FAA is contemplating that no knowledge testing would be required in order to obtain a Micro UAS rating; instead, the operator would simply be required to submit a signed statement to the FAA stating that he has familiarized himself “with all the areas of knowledge that are tested on the initial aeronautical knowledge test” applicable to a small UAS rating.Absent from the NPRM:  An Express Preemption ProvisionAlso important is what the NPRM lacks.  For example, it does not propose an express preemption provision, despite significant lobbying, including a formal petition filed with the FAA, by certain groups for such a provision.  This leaves open the possibility that state and local governments may attempt to regulate UAS operations differently from the way proposed by the FAA in the NPRM.  Absent an express preemption provision in the final rules, such state and local regulation would not be foreclosed at the threshold, but would instead have to be analyzed under existing conflict preemption principles on a case-by-case basis.<a href="#_ftn2" name="_ftnref2">[2]</a>Participation in the ProcessRelease of the NPRM commences a 60-day comment period.  That period may be extended by the FAA to allow interested parties additional time to comment on the proposed rule.  The FAA specifically requests comments on a number of important issues that seem to reflect the agency’s recognition that further regulation should take account of the rapid advances in UAS technology and be open to the burgeoning commercial uses of UAS.  These include whether:<ul><li>Regulation should be performance-oriented;</li><li>Operating restrictions should be relaxed based on new UAS technology;</li><li>Package delivery for payment should be permitted;</li><li>Special air carrier certification should be specified; and</li><li>Micro UAS classification and provisions should be developed.</li></ul>After the comment period closes, the FAA is expected to take additional time to analyze the comments and implement necessary changes before issuing the final rules.Issuance of final rules, however, will not be the end the story.  We expect to see at least some judicial challenges to the final rule.  These challenges may come in two forms:  (i) challenging enforcement actions taken pursuant to the regulations, and (ii) direct challenges to the rule itself.  Challenges to the rule itself are likely to be heard faster, as they’ll be filed and heard directly in the courts of appeals.  See 49 U.S.C. § 46110.  Challenges to enforcement actions would necessitate a longer process, as administrative remedies will need to be exhausted before seeking judicial relief.  See 14 C.F.R. § 406.179.What’s Next?Interested stakeholders should be cautiously optimistic with the approach suggested by the NPRM.  Those supporting commercial and other uses of drones should plan to participate in this rulemaking, both to endorse the positive aspects of the FAA’s proposals and to critique those that are overly restrictive.  Comments providing discussion of real-world, socially and economically beneficial uses of this technology, and how the proposed rules could encourage or hinder them, would be particularly powerful.  Industry should also continue to put pressure on the FAA to issue the comprehensive regulations mandated by Congress, lest the FAA fall even further behind the technology, causing additional delay in the rulemaking process.Companies should also continue to file individual Section 333 Exemption applications while the NPRM process is underway.  It is not known when the FAA will issue final rules, and it could take a considerable amount of time.  So those with an immediate desire to use UAS in their operations should seek authority to do so before the rulemaking is complete.Finally, interested parties should be cognizant of privacy and other issues raised by the NPRM.  In conjunction with the FAA issuing the NPRM, President Obama issued a <a href="http://www.whitehouse.gov/the-press-office/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-while-safegua">Presidential Memorandum</a> to the executive departments and agencies of the federal government highlighting steps that the federal government should take to protect privacy, civil rights, and civil liberties in operating UAS domestically.  For example, the Presidential Memorandum requires that executive agencies that collect information through UAS have policies and procedures that limit such collection, as well as the retention and disclosure of any information that is collected.  The Presidential Memorandum also establishes a multi-stakeholder process to be led by the National Telecommunications and Information Administration to develop best practices for privacy, accountability, and transparency in the commercial and private use of UAS.  As a result, even though the FAA will not address privacy issues in its rulemaking, the President has put in place a process to address these issues in a non-regulatory manner, absent Congress enacting legislation on the issue.   <a href="#_ftnref1" name="_ftn1">[1]</a> The 2007 Policy Statement was not itself legally binding.  To this day, it remains an open question whether drone flights for commercial purposes are ipso facto prohibited by federal law.<a href="#_ftnref2" name="_ftn2">[2]</a> See prior "May State and Local Governments Control Low-Flying Drones?" client alert.

Drones: Much Anticipated Small UAS Notice of Proposed Rulemaking Released by FAA

Over the weekend the FAA issued a much-anticipated Notice of Proposed Rulemaking (NPRM) for small UAS—i.e., drones weighing less than 55 pounds.  The oft-delaye

Drones:  Much Anticipated Small UAS Notice of Proposed Rulemaking Released by FAA

This month the International Civil Aviation Organization (ICAO) officially adopted a Protocol to amend the Tokyo Convention on offenses committed on aircrafts.  The culmination of a four-year effort to modernize the Tokyo Convention, the Montreal Protocol 2014 makes key changes to improve airlines’ ability to deal with unruly passenger incidents and enhance aviation security.  Some 100 governments participated in the process that led to the Protocol, which will come into force once 22 states ratify it.The Tokyo Convention.  The Tokyo Convention, which came into effect in 1969, governs what action an airline may take to address offences and other acts that occur on board an aircraft during flight.  The Convention allows the aircraft commander to take reasonable measures against an unruly passenger, including restraint, to (1) protect the safety of the aircraft, passengers, and crew, (2) maintain good order and discipline on board, and (3) enable the aircraft commander to deliver the passenger to law enforcement.  Article 10 of the Convention provides immunity from liability in any proceedings for actions taken in accordance with its provisions.It is generally thought that this 50-year-old Convention has served the aviation industry well.  Nonetheless, the past five years have seen a dramatic increase in unruly passenger in-flight incidents.  In fact, according to the International Air Transport Association (IATA), more than 28,000 unruly passenger incidents were reported between 2007 and 2013.  These incidents included violence against crew and other passengers, harassment, and failure to follow safety instructions.To address the rising tide of unruly passenger incidents, a Diplomatic Conference was held between March 26 and April 4, 2014.  The Conference considered proposed revisions to the Tokyo Convention, aimed at ensuring that the Convention continues to work as an effective deterrent to unruly in-flight behavior.And so the Montreal Protocol 2014 was born.  The Protocol makes three key improvements to the Tokyo Convention, including the clarification of the definition of “unruly behavior,” the extension of jurisdiction over in-flight incidents, and the recovery of costs stemming from unruly passenger behavior.  These changes, along with the measures already being taken by airlines, ensure greater liability protection for airlines dealing with unruly passenger incidents.What is unruly behavior?Importantly, Article VIII of the new Protocol eliminates the need for an aircraft commander to have reasonable grounds to believe that an unruly passenger is committing “a serious offence according to the penal law of the State of registration of the aircraft” in order to justify delivery to law enforcement under Article 9.  All that is required under the Protocol is reasonable grounds to believe a “serious offence” has been committed.  Serious offences could range from terroristic threats, to violent or threatening behavior against other passengers or crew, to tampering with a smoke detector.The Protocol also encourages contracting states to take appropriate criminal, administrative, or other measures against any person who commits an in-flight offence, including “physical assault or threat to commit such assault against a crew member” or “refusal to follow a lawful instruction given by or on behalf of the aircraft commander[.]”  See Protocol Article X (adding Convention Article 15(b)).Who has jurisdiction over unruly passengers?  The Protocol also extends the jurisdiction over the unruly passenger’s offense to the destination country of the flight, in addition to the country of aircraft registration.  See Protocol Article IV (replacing Convention Article 3).  This closes a serious Convention loophole that allowed many serious offenses to escape legal action.Can an airline recover costs?  The Protocol also adds provisions to support the recovery of significant costs arising from unruly passenger behavior.  Specifically, Article XIII adds Article 18(b) to the Tokyo Convention, and provides that nothing in the Convention “shall preclude any right to seek the recovery, under national law, of damages incurred, from a person disembarked or delivered [to law enforcement] pursuant to Article 8 or 9[.]”  Nevertheless, airlines may wish to be circumspect in attempting to charge unruly passengers for the high cost of holding up or diverting a flight; most passengers will not have the means to pay such a fine, and airlines may not want to build a reputation for trying to punish their own passengers.Conclusion.The changes effected by the Protocol provide enhanced tools for airlines to handle unruly passengers and combat legal claims arising from disembarkation and delivery to law enforcement.In 2013, a trial team from Morrison & Foerster’s San Diego office won a defense verdict in one of the only, if not the only, case where an airline defense was based on Article 10 of the Tokyo Convention.  The airline argued that the Captain had reasonable grounds for his actions against the unruly passengers, who had refused to follow crew instructions and engaged in a heated verbal altercation with the crew.  Plaintiffs claimed that the Captain acted unreasonably in disembarking them and reporting them to airport police.The 2014 Protocol would have strengthened the airline’s case in at least two ways.  First, the new Article 15(b) would have made even more clear to the jury that refusing a flight attendant’s instructions constitutes unruly behavior, providing additional justification for the Captain’s decision to disembark.  Second, the revised Article 9 would have made clear that a Captain is not required to be an expert on every State’s penal laws in order to form a reasonable belief that a “serious offence” has been committed.Unfortunately, the Protocol did not revise or expound on the Article 6 “reasonable grounds to believe” standard.  It would have been helpful to airlines if the Protocol clarified that this was a standard deferential to the aircraft commander’s judgment and that actions not “arbitrary or capricious” are considered reasonable under the Convention.  Such changes would give airlines a better shot at winning summary judgment under the Tokyo Convention, rather than being forced to go to trial over whether the Captain’s actions were reasonable.

Unruly Passengers Beware: ICAO Delivers Montreal Protocol 2014 to Enhance Enforcement Measures Against Unruly Passengers

This month the International Civil Aviation Organization (ICAO) officially adopted a Protocol to amend the Tokyo Convention on offenses committed on aircrafts. 

Unruly Passengers Beware:  ICAO Delivers Montreal Protocol 2014 to Enhance Enforcement Measures Against Unruly Passengers