Challenge To FAA Drone Authority Quietly Playing Out In Connecticut Federal Court
By John Goglia
With little media attention, a hard fought battle is being waged in a federal district court in New Haven, Connecticut over whether small drones â€“ so-called model aircraft â€“ are indeed aircraft subject to FAA jurisdiction. This would be the first judicial decision regarding FAA authority to regulate small hobby drones. While many believe the issue was settled by the Pirker case, that case was a decision by the NTSB, an administrative agency which reviews FAA enforcement cases against pilots and other aviation operators. As many of you know, the FAA fined Mr. Pirker for allegedly operating a small drone in a careless or reckless manner over the campus of the University of Virginia. Although the case eventually settled, the issue of whether a small drone or model aircraft was subject to FAA authority was litigated before an administrative law judge (who ruled against the FAA) and then on appeal, the NTSB determined that a drone was an aircraft and subject to the FAAâ€™s prohibition on careless or reckless operation.
But that NTSB decision is not the final word on whether small drones are indeed aircraft. And it is not binding on the federal court that is reviewing a challenge to FAA administrative subpoenas issued to a Connecticut father and son, Austin and Bret Haughwout. The FAA is investigating the Haughwouts for two videos that went viral â€“ one of a modified drone firing a weapon and another of a modified drone flaming a turkey on a spit. The Haughwouts have refused to submit documents subpoenaed by the FAA and to appear for depositions unless a court orders them to do so. The case unfolding in Connecticut right now is the FAAâ€™s attempt â€“ through the Connecticut US Attorneyâ€™s Office â€“ to force the father and son to comply with the FAAâ€™s demands.
I spoke recently to the pro bono attorney designated by the judge to represent the Haughwouts, Mario Cerame of the Randazza Legal Group. Mr. Cerame told me that at the heart of his challenge to FAA authority is the FAAâ€™s definition of â€śaircraftâ€ť which he contends â€śis crazyâ€ť and would cover any contrivance that flies, including â€śpaper airplanes, bullets and flags.â€ť At a hearing in March, Judge Jeffrey Meyer ordered the parties to further support their arguments regarding FAA authority over small drones. Oral argument is set for July 6 at 10 am at the federal court house in New Haven. Mr. Cerame admits that for his clients to win, the Judge would have to determine that the FAAâ€™s position was â€śobviously wrong.â€ť The Assistant United States Attorney handling the matter for the FAA was not able to comment because the matter is in litigation.