ASKED & ANSWERED: Matthew Berard on FAA's new drone registration requirement

By Steve Thorpe
Legal News

After months of study, the FAA announced recently that all non-commercial drone owners must register their unit with the agency by mid-February. Upon completion of the registration process, the owner will receive a Certificate of Aircraft Registration/Proof of Ownership including an identification number, which must be marked on the aircraft. Matthew Berard of Plunkett Cooney’s Detroit office concentrates his practice on medical liability and insurance coverage. A licensed private pilot, Berard also serves as the publications chair for the DRI Aviation Law Committee and is a member of the Lawyer-Pilots Bar Association, Aviation Insurance Association, Michigan Business Aviation Association and Aviation Law Section of the State Bar of Michigan.
Thorpe: According to Newsweek, more than a million drones will be given as gifts this holiday season. Will there be one under your tree?

Berard: I certainly hope I open one. You see them in all kinds of shapes, sizes, capabilities, and prices. While I probably should not expect to see a $3,000 drone under the tree, there are cheaper options out there for around $50. As you mentioned, nearly 1 million drones will be opened in family rooms across the country this holiday season as unmanned aircraft are becoming increasingly popular and inexpensive. However, before you unbox a drone and take to the skies, you must be aware of the FAA’s recently announced registration requirement for personal drones weighing over 0.55 pounds (8.8 ounces) and less than 55 pounds while operated outdoors, that took effect on December 21, 2015. If you receive such a drone as a gift, you are now the owner of an “aircraft” that is subject to Federal regulation and must be registered with the FAA. According to the FAA, failure to register a qualifying drone (legally an “aircraft”) may result in civil penalties up to $27,500 and criminal fines up to $250,000 and/or imprisonment for up to three years.

Thorpe: How will the registration process work?

Berard: The process is very simple and takes no more than five minutes to complete. You must go to the FAA’s website and be a U.S. citizen and 13 years of age or older to register a drone on your own (if the owner is under 13, then a person at least 13 years of age must register it). There is a $5 fee to register drones, but if registered within 30 days after December 21, 2015 the fee is refunded (to encourage registration).

Thorpe: Is it the drone or the operator who is registered with the FAA?

Berard:  Upon registration, the owner will receive a Certificate of Aircraft Registration which must be in the operator’s possession (either in paper copy, email form, or electronically accessed from the registration website) when flying the drone. While full sized aircraft have “N-numbers,” the owner is issued their own unique registration number with the FAA that must be displayed on each of their drones prior to operation by some means that is legible and allows the number to be readily seen (such as permanent marker, label, engraving, or other means) or in the battery compartment if tools are not required to open it. Registration, however, does not provide authorization to fly the drone as other regulations governing its operation might apply. In fact, during the registration process you must agree that you will operate your drone in accordance with the FAA’s safety guidelines (i.e., below 400 feet, away from other aircraft, within visual line of sight, etc.).

Thorpe: What about people who already own a drone?

Berard: If you already own a drone that meets the weight criteria for registration, you have until February 19, 2016 to register it. Failure to register your presently owned drone may result in the penalties mentioned previously.

Thorpe: The new regulation draws a distinction between personal and commercial drones. What additional hurdles will a commercial drone operator face?

Berard: Currently, commercial drone operators must still also obtain a Section 333 waiver from the FAA. Once issued, this waiver permits the applicant to operate the drone for a commercial purpose in accordance with the limitations set forth in the approval from the FAA. This applies to wedding photographers, realtors, farmers, etc. Separately, public entities must obtain a Certificate of Waiver or Authorization (COA) to operate an aircraft for public use.

Thorpe: Some cities have banned drones. Does this new rule affect those laws?

Berard: Remember, registration of your drone is not authorization to fly it. You still must ensure you comply with regulations applicable to its operations. By way of analogy, simply because a car is registered with the Secretary of State does not necessarily mean one is legally permitted to drive it. Further, federal preemption issues may arise to the extent a city or municipality is attempting to regulate airspace by way of ordinance or code.

Thorpe: A recent poll found that 47 percent of citizens think private drones should be illegal and more than one third of Americans want to own one. Sounds like lots of work for lawyers down the road!

Berard: I believe that with the influx of the million new drones we will see more incidents of close calls or drone crashes in the news. It is certainly a possibility that litigation with respect to drones will rise in the future. We will continue to see regulatory issues and commercial operation issues arise as this area of the law develops further.