Individuals in the United States wanting to fly for commercial purposes (non-recreational) are required to have an airmen certificate. Most people fly under Part 107 and obtain the remote pilot certificate. This involves paying some money to take a test. Some people choose to just operate illegally without a remote pilot certificate. While some might say, “I don’t have any risk because I’m not flying,” there are still serious reputational and legal consequences for the person hiring the illegal drone pilots to even include prison time.

Reputational Risks with Illegal Drone Pilots

Firstly, flying without a remote pilot certificate is a federal crime.  Yes, the FAA has been fining people, see my article detailing the 70 FAA prosecutions against drone operators to also include one for $1.9 million, but Department of Justice can also step in and criminally prosecute the wanabe pilot.

49 USC 46306(b) says, “a person shall be fined under title 18, imprisoned for not more than 3 years, or both, if the person— . . . (7)knowingly and willfully serves or attempts to serve in any capacity as an airman without an airman’s certificate authorizing the individual to serve in that capacity[.]” So flying illegally is a federal felony. This charge does occasionally come up. See this indictment:

“COUNT SIX
(Operating as an Airman without legitimate Airman Certificate)
Between on or about January 4, 2016, and continuing until on or about November 28, 2020, in the Middle District of Florida, and elsewhere, the defendant, HOWARD D. FARLEY, JR., did knowingly and willfully serve as an airman, that is, as a Federal Aviation Administration (FAA) Airman Private Pilot, without having a valid Private Pilot Airman’s Certificate in his name authorizing him to serve in that capacity, as he was operating aircraft N242TA in U.S. airspace while knowing his FAA airman certificate was fraudulently issued in another person’s identity In violation of 49 U.S.C. § 46306(b)(7).”

One well known large real estate brokerage company’s name even made it’s way into FAA prosecutorial documents due to the wanabe pilot’s flying the drone illegally for real estate listings. That’s embarrassing.

Hiring illegal operators can tarnish your name, brand, and reputation. You get to be known as “that guy.” Detecting the true damage of being “that guy” is hard because people mentally choose to make themselves distant/unavailable/inaccessible. Deals get put together with other people without you every knowing. Proverbs 22:1 provides clarity:

A good name is to be chosen rather than great riches, and favor is better than silver or gold.


Prison Time and Illegal Drone Pilots

You might say, “I cannot get in trouble because I’m not the one flying.”  Wrong.

49 USC 46306(b) says, “a person shall be fined under title 18, imprisoned for not more than 3 years, or both, if the person— . . . (8)knowingly and willfully employs for service or uses in any capacity as an airman an individual who does not have an airman’s certificate authorizing the individual to serve in that capacity[.]”   In that indictment above, this is what Count Seven said,

COUNT SEVEN
(Employing or Using an Airman without legitimate Airman Certificate)
Between on or about January 4, 2016, and continuing until on or about November 28, 2020, in the Middle District of Florida, and elsewhere, the defendant, DUC HANH Till VU, did knowingly and willfully employ for service or use in any capacity as an airman, HOWARD D. FARLEY, JR., who did not have a valid Private Pilot Airman’s Certificate in his name authorizing him to serve in that capacity, in that she used HOWARD D. FARLEY, JR. to operate aircraftN242TA in U.S. airspace, knowing his FAA airman certificate was fraudulently obtained in another person’s identity.
In violation of 49 U.S.C. § 46306(b)(8).

The uncertificated pilot AND the person who hired him both got popped.

49 USC 46306(b) also says it is illegal for a person who “(5)owns an aircraft eligible for registration under section 44102 of this title and knowingly and willfully operates, attempts to operate, or allows another person to operate the aircraft when—” the aircraft is not registered. (Emphasis mine).

And before you say something like, “I guess I just won’t look into whether the person is illegal or not so I cannot ever be knowing and willful,” turning a blind eye to who you are hiring is unwise. For one, a personal injury attorney may attempt to argue that you negligently hired the illegal operator because you failed to screen for their remote pilot certificate and had you done that, you would have discovered they were ignorant on the regulations such as 107.39 prohibiting flights over non-participating people and 107.19(c) requiring the pilot to ensure the drone “will pose no undue hazard to other people, other aircraft, or other property in the event of a loss of control of the small unmanned aircraft for any reason.”  Ya, regarding the word “any,” your defense attorney will be more stuck than a minivan that went mudding.


You Could Lose Your Drone

That indictment above had a nasty little surprise in it:

Upon a conviction of a violation of 49 U.S.C. § 46306(b), the defendants shall forfeit to the United States, pursuant to 49 U.S.C. § 46306(d)(l) and 28 U.S.C. § 2461(c), an aircraft whose use is related to a violation of subsection (b) of this section, or that aids or facilitates a violation, regardless of whether a person is charged with the violation.

If your drone was used in the illegal act, you could have the drone forfeited to the U.S. Government. Have fun paying for any legal fees when the means of making money is gone.


Business Resources Wasted (Time and Money)

I’m just going to copy-paste the language from the Skypan petition for summary of enforcement of subpoena filed by the Department of Justice:

Skypan is a private, for-profit photography company . . . that specializes in aerial photography. The company has advertised on the internet their use of unmanned aircraft to produce aerial photography and videography products that cannot be obtained through conventional use of manned aircraft. . . . In early September 2012, a second anonymous complaint was made to the Farmingdale FSDO stating that Skypan was again engaged in commercial unmanned aerial photography in the New York Class B airspace area. ASI John Wilkens, Farmingdale FSDO, investigated the allegation that Skypan had operated an unmanned aerial aircraft in violation of Federal Aviation Regulations. On or about September 19, 2012, ASI John Wilkens contacted Mr. Richard Dubrow, employee of Macklowe Properties, regarding the circumstances surrounding their contract with Skypan for aerial photography services. Mr. Dubrow confirmed that Macklowe Properties did contract with Skypan for commercial aerial photography of a development project at 432 Park Avenue, New York, NY.

On November 11, 2012, ASI Wilkens issued a letter of investigation to Skypan advising the company that the FAA was investigating the operation of an unmanned aircraft system for the purpose of commercial photography by Skypan International on or about May 8, 2013, in the vicinity of 432 Park Avenue, New York, New York.

On December 12, 2012, the FAA issued an administrative subpoena duces tecum to Macklowe Properties requiring the company to produce any and all business records, agreements, contracts, photographic products and/or materials and records of any payment relating to a contract for aerial photography between Macklowe Properties and Skypan. Macklowe Properties complied with the FAA’s administrative subpoena duces tecum and produced various business records, receipts, copies of photographs, and written statements clarifying the dates that the unmanned aerial photography took place.

How would you respond if you received a subpoena? Here is the one Skypan received.

The subpoena Skypan received had a laundry list of requests. All 9 items started with “Any and all” which gives you the idea of the breadth and depth of the FAA’s subpoena.

Obviously after you received this you would consult a lawyer and pay them which means $$$ out of your pocket to figure out what you need to do.

You and your employees have to take time away from making money to try and comply with the subpoena. It’s like doing an in-depth tax return where you are throwing under the bus one of your vendors and trying to do damage control with some expensive attorney looking things over. Remember the petition stated,

[T]he FAA issued an administrative subpoena duces tecum to Macklowe Properties requiring the company to produce any and all business records, agreements, contracts, photographic products and/or materials and records of any payment relating to a contract for aerial photography between Macklowe Properties and Skypan. Macklowe Properties complied with the FAA’s administrative subpoena duces tecum and produced various business records, receipts, copies of photographs, and written statements clarifying the dates that the unmanned aerial photography took place.


Others Might Start Questioning Your Judgement

If you or your company get mixed up into all of this, you might have to explain to you wife, customers, vendors, co-workers, employees, and the boss what’s going on.

Yikes. That’s stressful.

Don’t believe this can happen?

Here ya go.

The petition filed by the DOJ attached a statement from a FAA inspector which gives you an idea of the stress created by the investigation:

A written request to furnish documents to aid the investigation was made to Macklowe Properties on September 26, 2012. There was no response to the written request. A follow-up telephone [conversation] with Mr. Dubrow took place on October 12, 2012 to check on the status of the document request. Mr. Dubrow confirmed that his company received the request and he passed the letter along to his boss. Mr. Dubrow said they will email the status of the written request. On October 19, 2012 Macklowe properties General Counsel forwarded a letter requesting a subpoena detailing the information that they were requesting. A subpoena was issued as requested.


Conclusion

There are a lot of risks to hiring illegal operators. You have to ask yourself, “Is it worth it?”

If your business regularly hires drone pilots and you want me to check into them to make sure things are legit, contact me. I can look into their waivers, exemptions, authorizations, etc.

Also, consider starting your own in-house drone operation. I have assisted many companies in starting drone operations. Please consider my services in obtaining waivers, creating manuals, providing consultations to assist the general counsel or program managers in regulatory compliance, etc.

By Jonathan Rupprecht

Jonathan is an aviation attorney who focuses on unmanned aircraft. He holds an FAA Commercial Pilot certificate and is also an FAA certified Flight Instructor.