A list of the FAA’s enforcement actions show it’s concerned with unsafe flying, not with people flying drones for money.
Image: Derek Mead
For all its talk about how flying a drone for commercial purposes without its permission is illegal, the Federal Aviation Administration has never fined a drone company simply for flying a drone for money, according to documents obtained by Motherboard using the Freedom of Information Act.
Over the last several years, the FAA has repeatedly said that operating a drone business is illegal until it enacts specific drone guidelines. In the meantime, it has begun issuing what are known as "Section 333 exemption," which allows companies to fly with permission under strict guidelines. The FAA has given out 5,292 of these waivers and has a massive backlog of them to get through still.
After seeing a list of what the FAA says are all of the drone-related fines it has ever given out, you wonder why anyone who has a drone business would ever bother getting a 333 exemption.
In October, FAA Deputy Administrator Michael Whitaker told Congress that the FAA had issued 20 civil penalties to drone operators and said the number of companies flying illegally is "too big to track."
I filed a FOIA request for documents related to those penalties as well as any other penalties enforced by the agency during the time the request was being processed. I got back documents for 24 separate cases; not one of these fines was issued to a company that failed to have a 333 exemption. We believe these to be the entirety of enforcement actions ever taken against drones, or close to it, at least (more on that here—if you know of any other enforcements please let me know).
"I think it's pretty obvious the FAA doesn't think it can win a case on this whole commercial issue, which is why they haven't really pushed it"
Instead of going after companies that don't have a 333 exemption, the FAA will fine drone companies (and drone hobbyists) for flying in a "careless or reckless" manner. It uses a manned aircraft regulation called 14 CFR Section 91.13(a) to enforce its fines. The FAA still has not enacted specific unmanned aircraft regulations, leading experts to believe that the FAA isn't willing or able to prosecute drone companies for not having a license.
"The FAA has yet to go after anyone solely for operating commercially without authorization," Peter Sachs, a Connecticut-based drone attorney told me. "If you look at the documents, they will sometimes mention [a lack of authorization] it in the 'allegations' section, but then when you get to the bottom where they actually cite regulations, it never says anything about operating commercially. If they're so certain it's illegal, why have they never once gone after anyone?"
Loretta Alkalay, who was in charge of the FAA's legal operations for the eastern region for more than 20 years, told me that the documents I showed her suggest the FAA doesn't think it has legal standing to win a case that doesn't involve reckless flight.
"I think it's pretty obvious the FAA doesn't think it can win a case on this whole commercial issue, which is why they haven't really pushed it," Alkalay told me.
The FAA seems content to continue saying that flying commercially is illegal when it sends cease-and-desist orders, which do not have a monetary fine attached to them, and in statements to Congress and in its public information sheets. These public statements may serve as deterrents until the FAA is able to put its commercial flight regulations into place later this year. But for now, the agency only seems to want to go after companies that it deems are flying recklessly.All sorts of fly-by-night 333 law firms have popped up.
According to the documents I obtained, the FAA fined a pilot named Raphael Pirker $10,000 for flying recklessly at the University of Virginia in Charlottesville (this was a famous case that dragged out for more than a year), a company called Xizmo Media Productions $18,700 (later reduced to $5,000), and a company called SkyPan $1.9 million.
It also revoked a commercial pilot's manned aircraft license for a drone flight it said was reckless at Brooklyn's Coney Island. Besides that, every other fine has been levied against hobbyists.
One thing to note: The FAA does seem to enforce much stricter penalties against commercial pilots, and will cite all sorts of manned aircraft violations to drive up the cost of a fine. In the Xizmo case, for example, the FAA fined the company for not having "an operable coded radar beacon transponder" and "automatic altitude reporting equipment," which are instruments almost no drones have.
The FAA would not comment on the procedures it uses to fine pilots, however it referred me to a document it uses to guide enforcement actions, which states that safety should be the primary concern when deciding whether to assess a fine.
Whitaker told Congress the agency is mainly concerned with unsafe operations, which would seem to jive with the agency's actions. But then why should the FAA or would-be commercial pilots go through the charade that is the 333 process? Why say that there is a blanket ban on flying commercially if the agency isn't going to do anything about the hundreds of companies that operate without a 333?
Sachs said the 333 process has been a huge waste of time and taxpayer money, and said that the process led to a lot of people being taken advantage of by fly-by-night 333 exemption lawyers. A cottage industry of lawyers has popped up to guide businesses through the process, and the FAA has begun essentially rubber-stamping the waivers, raising the question of what purpose they actually serve.
"You had law firms charging tens of thousands, and then it went to people struggling to do it themselves, and now you have people buying $49 premade online forms," Sachs, who once got a 333 exemption for a paper airplane, told me. "They're dead simple to do—you copy and paste from the form, press submit and you wait for them to take a stamp and press it against an ink pad for you."
"Some companies are doing things very very openly that the FAA claims is very illegal and they're not doing anything about it," he added. "It shows the FAA has been doing 333s wrong all along."