FAAThis guest post was written by Jason D. Knight, a Southwestern 2016 juris doctorate candidate.

As a previous post here has discussed, bad actors have complicated the efforts by regulators and lawmakers to provide their pledged rules for what has become one of Hollywood film and television shooters’ hottest technologies: unmanned aerial systems or drones. The FAA has deployed its ”file-and-fly”’ system for them and now 1,800 plus Section 333 exemptions have been granted to lawful operators.

But the clamor to deal with the aerial cowboys also has lassoed what the feds deem a significant offender: SkyPan International, Inc., a Chicago based drone service that provides aerial photography services. The FAA issued a proposed $1.9 million civil penalty against the operator on Oct. 6 for continued and flagrant violations of federal aviation rules. This is the highest penalty to date against a drone operator. If the FAA is successful in collecting this fine, it could set off a series of enforcement actions by the agency against unauthorized drone flights in the national airspace.

The offender.

SkyPan, as its names implies, provides 360-degree views of cities across the United States, including Chicago, Los Angeles, and New York. It offers a wide menu of photo packages for customers seeking images of a sleek city skyline. All SkyPan’s flights operated vigilante-style without a Certificate of Authorization or Waiver, the FAA says. This is key, because this is the first time that the agency has moved to enforce its ban on unauthorized drone flights under the FAA Modernization and Reform Act of 2012.

The offense.

The FAA said in a news release that SkyPan violated multiple rules, specifically, “[b]etween March 21, 2012, and Dec. 15, 2014, SkyPan conducted 65 unauthorized operations in some of our most congested airspace and heavily populated cities, violating airspace regulations and various operating rules… These operations were illegal and not without risk.”

To understand the gravity of the asserted offenses, it is best to understand the underpinnings of the airspace and its operating rules. Airspace is divided into “classes,” each class is denoted by a letter from A to G. As a rule of thumb, class A airspace is the most tightly controlled; class G is uncontrolled airspace. The FAA says SkyPan flew over densely populated areas over the nation’s largest cities in class B airspace. That territory that surrounds the country’s busiest airports and requires explicit authorization for operation by the local air traffic control center.

The FAA also assailed SkyPan over its lack of the airworthiness of its craft. When operators obtain a Certificate of Authorization they must describe their drones in detail so the FAA understands each point of possible failure and safety protocols in the event of an incident. Further, the authorization certificate describes how the operator, drone, and air traffic control center will communicate via radio link. Sometimes referred to as the C2 or Command and Control, this radio communication is critical to the safety of the mission as well as other aircraft and people on the ground. The FAA said SkyPan neither represented its aircrafts’ airworthiness nor C2 protocols, all -actions the agency sees as unsafe and illegal.

The FAA looked to 14 CFR 91.13(a), to assert the firm operated its drones in violation of the statute, such , that it flew “an aircraft in a careless or reckless manner so as to endanger the life or property of another.” The FAA says SkyPan flew close to buildings, buzzed people on the ground, and flew with a conscious disregard for safety.

What if SkyPan pays?

This violation is similar to the Huerta v. Pirker, in which Raphael Pirker flew a powered glider over and through the campus of the University of Virginia, including an active heliport. The FAA assessed him a $10,000 civil penalty for his maneuvers. The National Transportation Safety Board struggled with the definition of what’s an aircraft and eventually held that the powered glider was subject to FAA rules. This case opened the door for the FAA to assess civil penalties against reckless drone pilots.

If the FAA wins against SkyPan, there may be a cascade of agency enforcement actions. Pirker created an avalanche of Section 333 Exemptions and the proliferation of the commercial drone industry. SkyPan may reel in operators who consciously avoid the Section 333 Exemption process.

There are differences between the two cases: (1) the FAA has sorted out the definition of aircraft to include drones; (2) the FAA has successfully licensed hundreds of applications to legally operate in the national airspace. The questions in SkyPan are whether: the FAA will actively enforce its jurisdiction over drones and use sufficient means to enforce its jurisdiction.

Many would argue that a $1.9 million penalty should deter reckless operators. It will be difficult for SkyPan to argue that the FAA cannot enforce its civil penalty. The FAA has streamlined its authorization certificate process and dozens of operators apply and are granted exemptions each week. This means that the FAA has the experience and capacity to accommodate operators like SkyPan. The firm has provided a legally tight case for the FAA to bring its civil penalty by ignoring agency warnings for almost two years. The FAA will argue that SkyPan had more than enough opportunities to get licensed.

This instance is consistent with other landmark cases, in which the government body waited for a perfect storm of violations to enforce or invalidate its authority.

SkyPan has 30 days to respond to the FAA.