We amateur drone pilots are well schooled in the dangers. We don’t fly close to airports, near power lines, or anywhere in the no-drone-zone that stretches across the entirety of the Washington D.C. region (including, sadly, our own CommLawBlog rooftop deck, which would otherwise be a great place to fly).
But we don’t worry much about violating FCC rules. Drones come under FAA jurisdiction, right? – and that’s a whole different set of rules.
True, the flying-in-the-air part is an FAA responsibility. But along with the video cameras and flashing lights, drones also carry radio receivers and transmitters: receivers so the operator on the ground can control the flight, and transmitters to send video back to the ground. Both the ground-based control transmitter and the airborne video transmitter come under FCC regulation.
The inexpensive hobby drones sold to consumers mostly use unlicensed radios in the same bands that carry Wi-Fi and Bluetooth. The transmitters need FCC equipment approval, but then anyone can sell them and use them. The bigger professional drones often use licensed frequencies for greater power, range, and reliability. In addition to FCC transmitter approval, these need a license for the particular frequencies they use (or permission of a licensee). A third category operates on amateur radio frequencies, which also require a license – one that many consumers have – but not equipment approval.
A collection of related companies that share the name Hobby King sell drones and model airplanes, along with the related radio gear. Their video transmitters are popular for drone racing. But they are less popular at the FCC, which says that some are capable of operating outside the unlicensed and amateur bands, and at higher-than-allowed power levels.
After receiving complaints, the FCC began investigating Hobby King in 2015, and by 2016 had determined the company was selling noncompliant transmitters. A Citation and Order told Hobby King to stop selling the devices and formally warned it that further violations could bring fines and seizure of equipment.
The complaints kept coming. In 2017, the FCC sent Hobby King a Letter of Inquiry. Typically these ask the recipient what devices it sells and why the recipient thinks it is legal to sell them, and requires an affidavit that makes the recipient liable for perjury. Hobby King made only a partial response, one the FCC found unsatisfactory. Following two more invitations to respond in full, the FCC issued a second Citation and Order telling Hobby King to come into compliance. Hobby King ignored it.
With that, the FCC ran out of patience and rolled out the big artillery: a Notice of Apparent Liability that proposes to fine Hobby King in the amount of $2,861,128.
Hobby King’s partial response to the Letter of Inquiry had raised two defenses. It claimed not to sell devices into the United States; but its website suggested otherwise, and a member of an amateur radio group reported buying two of the unlawful devices and receiving them at a U.S. address. The other defense was a notice on the website saying that purchasers must be aware of local laws. But compliance with the FCC equipment rules is a responsibility of the seller that cannot be shifted to the buyer. (The buyer’s operation of a noncompliant device is also an offense, but the FCC rarely takes action against a consumer.)
Why the odd amount of the proposed fine? The FCC found 65 models in violation and imposed a “base forfeiture” of $7,000 each for $455,000. It then adjusted upward for egregious elements in Hobby King’s behavior with respect to subsets of the 65 models and added on further for the failure to respond to the FCC’s inquiries. In some cases these subtotals reached the maximum fines permitted by statute, which themselves are odd amounts after adjustments for inflation over the years.
Hobby King now has a chance to respond before the FCC issues an order that imposes the fines.
On the same day the FCC issued an advisory reminding the public that drone transmitters must comply with FCC rules.
The takeaway is simple: (1) read your mail, and (2) answer anything from the FCC. Like Alex Forrest in Fatal Attraction, the FCC won’t be ignored.