FAA v. FCC On Drone Enforcement

Whenever issues impacting aviation safety arise, the public’s attention naturally turns to the Federal Aviation Administration (FAA) to see what its response will be.  A number of other federal agencies, however, play important roles in ensuring the safe functioning of the National Airspace System.  The Department of Homeland Security oversees anti-terrorism and security, the Department of Transportation ensures that hazardous materials are not carried on aircraft, and the Federal Communications Commission (FCC) ensures that command, control, and communications systems work in harmony with other devices that use the electromagnetic spectrum.

An FCC notice of proposed penalty of over $2.8 million issued against HobbyKing earlier this month shows just how seriously these other agencies take their responsibilities.  HobbyKing makes, among other things, a system used in drone racing that transmits video signals from a drone back to the controller.  HobbyKing advertised that its devices operated on frequencies that are suitable for public use.  The FCC discovered, however, that the devices operated at higher power levels than permitted by regulation, and also operated on frequencies reserved for use by the Aeronautical Radionavigation Service, Radionavigation-Satellite Service, and Space Research Service, as well as frequencies used for Mobile, Radiolocation, and Maritime Radionavigation.  The HobbyKing system was essentially operating as a jammer, potentially blocking legitimate users of these parts of the spectrum.  As a result, the FCC found that the transmitters “threaten important government and public safety operations, such as weather services and radar . . . .”

The FCC’s citation reveals why ignoring federal regulators when they commence an enforcement action is not good strategy.  According to the notice, the FCC issued HobbyKing a cease and desist letter in 2016, which was apparently ignored.  In addition, the FCC sent HobbyKing a Letter of Investigation (LOI) in 2017 seeking further information, which was not fully responded to, even after the FCC gave them additional time.

The FCC, like the FAA, calculates its penalties using a “multiplier effect,” where each violation accrues its own penalty for every day it continues.  In this case, the FCC determined that a forfeiture of $7,000 per day for each violation was appropriate, resulting in a total base penalty of $455,000.  However, the FCC, like most federal agencies, is also entitled to adjust any civil penalty upwards where there is evidence of egregious, intentional, or repeated misconduct.  The FCC found that, based on HobbyKing’s behavior during the investigation and the “egregious threat to public safety,” an upward adjustment in the penalty was warranted, including raising 15 of the violations to the statutory maximum of $147,290, for a total of $2,861,128.

The National Airspace System is highly complex.  It is not only the aircraft in flight, but all of the systems necessary to safely control and operate the aircraft.  The FCC, which has a key role in ensuring the safety of the system, has been increasingly vigilant in overseeing both UAS control systems and the emerging products aimed at defending against unauthorized UAS operation through jamming.  This civil penalty sends a clear signal that the FCC intends to remain engaged on these issues, and expects full compliance with its regulations.

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