Dramatic videos posted over the holiday weekend show fireworks displays that were filmed from drones.  The videos are remarkable, with the drones often flying within the sweep of the exploding shells.  Burning fireworks frequently zoom past the cameras.  We found drone fireworks videos from Decatur, Ga., Lake Martin, Ala., Oak Mountain State Park, Ala., and Nashville, Tenn.  The drone operators may have been inspired by a popular YouTube video of fireworks over West Palm Beach that attracted more than 6 million views and considerable press coverage.

We expect that the videos are also causing post-holiday headaches at the FAA.  The FAA’s reaction to these videos may prove to be an early test of its recent regulatory notice interpreting its longstanding rules on model aircraft.

As we previously reported, the FAA is playing catch up on its drone rules.  For years, the agency’s regulation of drones was limited to an advisory circular from 1981 and a policy statement from 2007, neither of which provided a comprehensive set of rules.  In March, the agency lost an enforcement action against a drone operator largely because it had never adopted specific regulations for drones.

On June 23, the FAA took a substantial step forward by issuing a notice of the agency’s interpretation of its authority to regulate drones.  The notice interprets Congress’s 2012 FAA legislation, including a provision that prohibits FAA regulation of model aircraft that are flown for “hobby or recreational” purposes and that meet certain other criteria.

In a key provision of the interpretation, the FAA stated that Congress’s prohibition on regulating model aircraft does not prohibit the agency from enforcing – against drone operators – the “general rules . . . that apply to all aircraft.”  This interpretation would permit the agency, for example, to allege that the fireworks drone operators violated regulations that prohibit careless and reckless operations that endanger life or property.

Finally, for those following the FAA’s position on commercial operation of drones, the fireworks videos may present a novel issue related to compensation.  In the June 23 interpretation, the FAA reiterated its longstanding position that commercial drone operations are generally prohibited, and the agency cited the example of “photographing [an] event and selling the photos to someone else.”

Some of the fireworks videos we reviewed were preceded by advertisements, which would appear to indicate that they are part of the YouTube Partner Program, where a portion of the advertising revenue is paid to the video creator.  The FAA has traditionally adopted a very broad view of commercial operations, and it will be interesting to see whether it considers “monetized” videos to cross the line.

We expect the FAA may have something to say about these fireworks videos.

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Photo of Brian D. Smith Brian D. Smith

Brian Smith assists clients with challenging public policy matters that combine legal and political risks and opportunities.

Brian represents companies and individuals facing high-profile and high-risk congressional investigations and hearings, and other criminal, civil, and internal investigations that present legal, political, and public…

Brian Smith assists clients with challenging public policy matters that combine legal and political risks and opportunities.

Brian represents companies and individuals facing high-profile and high-risk congressional investigations and hearings, and other criminal, civil, and internal investigations that present legal, political, and public relations risks. He assists companies and executives responding to formal and informal inquiries from Congress and executive branch agencies for documents, information, and testimony. He has extensive experience preparing CEOs and other senior executives to testify before challenging congressional oversight hearings.

Brian develops and executes government relations initiatives for clients seeking actions by Congress and the executive branch. He has led strategic efforts resulting in legislation enacted by Congress and official actions and public engagement at the most senior levels of the U.S. government. He has significant experience in legislative drafting and has prepared multiple bills enacted by Congress and legislation passed in nearly every state legislature.

Prior to joining Covington, Brian served in the White House as Assistant to the Special Counsel to President Clinton. He handled matters related to the White House’s response to investigations, including four independent counsel investigations, a Justice Department task force investigation, two major oversight investigations by the House of Representatives and the Senate, and several other congressional oversight investigations.

Brian is a Professorial Lecturer in Law at the George Washington University Law School.