It was the wrong procedural posture to create new law. But a recent case from the United States District Court for the District of Connecticut has some interesting discussion regarding limits to the FAA’s right to regulate airspace.
The case arose because an enterprising UAV owner posted two YouTube videos under the username “Hogwit.” The videos went viral and caught the attention of the FAA. The first video was a 14-second clip showing a hovering UAV firing an attached handgun. The second was four minutes of “intense” flame throwing from a UAV onto a turkey carcass. The caption read, “This is how to roast your holiday turkey.” For curious readers, the video is still available to view.
Concerned about possible violations of safety regulations, FAA launched an investigation and issued subpoenas to the creator of the video and his father. The subpoenas required the father and son to submit to a deposition at a federal building in Connecticut. They also required the production of various documents related to various aspects of the videos, such as who was present when the videos were produced, the dates and times of the photography and videography, internet-based advertising revenues and other compensation obtained by uploading the videos (comment: no doubt to prove commercial v. hobby purpose), and the purchase and use of the UAV and flamethrower.
The father and son refused to comply and instead argued that their activity was not subject to the jurisdiction of the FAA. The FAA filed an action to enforce the subpoenas and the court issued its opinion.
First, the court found that the father and son did have to comply with the subpoenas. The court detailed an administrative agency’s broad authority to issue subpoenas, noting that the Fourth Amendment’s probable cause requirement does not apply. Rather, the court stated that an administrative agency has power akin to that of a grand jury, allowing it to issue a subpoena for any “legitimate purpose” upon a “mere suspicion” that a law is being violated.
The court opined, “[T]he FAA has promulgated safety regulations stating that ‘[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." 14 C.F.R. § 91.13. There can be no dispute that the weaponized devices shown on the YouTube videos at least give rise to questions about possible danger to life or property.”
That was the end of the matter at hand. But that is not where the court ended its opinion. Rather, the court continued to entertain the arguments of the father and son that the FAA was acting outside of its authority. Although not precedential, the discussion is important.
The father and son argued that the UAV was not an “aircraft” subject to FAA regulation. The court commented, “Indeed, Congress has defined the term "aircraft" in stunningly broad terms to include 'any contrivance invented, used, or designed to navigate, or fly in, the air.'" 49 U.S.C. § 40102.
The father and son continued that the statute “could be applied in absurd fashion to any airborne objects that could be said to ‘fly’ in the air such as baseballs, pizza dough, and children's propeller-driven toys.” Absent an articulation by the FAA of a definitional limit to the term “aircraft,” they argued that the FAA could not pursue enforcement actions against them.
Appreciating the parties' “creativity," the court found that such arguments were not appropriate in the context of the subpoena enforcement matter. Even if the UAVs at issue fell outside of the definition of the term “aircraft,” the court found that the FAA had a legitimate purpose to gather more information to investigate and determine if that was indeed the case.
But then the discussion turned pointed:
Were this a penalty enforcement action against the [father and son] for flying drones on their own property, I could see that the [father and son] have raised substantial questions about the scope of the FAA's regulatory enforcement authority. It appears from oral argument as well as from the FAA's website that the FAA believes it has regulatory sovereignty over every cubic inch of outdoor air in the United States (or at least over any airborne objects therein). If so, that ambition may be difficult to reconcile with the terms of the FAA's statute that refer to "navigable airspace."
And that’s not all:
In a different context, the Supreme Court has "said that the airspace is a public highway," but that "it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere," or else "buildings could not be erected, trees could not be planted, and even fences could not be run." United States v. Causby, 328 U.S. 256, 264, 66 S. Ct. 1062, 90 L. Ed. 1206, 106 Ct. Cl. 854 (1946). And so the Supreme Court recognized even 70 years ago that "[t]he landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land."
If that much is clear, does it follow that this foundational principle must vanish or yield to FAA dictate the moment that a person sets any object aloft (i.e., an "aircraft") no matter how high in the airspace outside one's home? This case does not yet require an answer to that question. Regardless, as with the advent of airplanes before them, the next generation of drones and similar flying contraptions will continue to challenge and shape the law that governs them.
Hmmmm. Now that this subpoena matter is resolved, the FAA may not wish to seek enforcement or penalties against this father/son duo in this court. We’ll keep you posted!
The case is Huerta v. Haughwout, 2016 U.S. Dist. LEXIS 92866 (D. Conn. July 18, 2016).
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