Henry H. Perritt, Jr.

Attorney at Law

1131 Carol Lane

Glencoe, IL 60022

hperritt@gmail.com

(312) 504-5001

8 September 2014

Mr. Jake J. Troutman

Program Analyst | Rulemaking

Michelle Ferritto

Acting Manager

Airmen and Airspace Rules Division

800 Independence Ave., S.W.

Washington, D.C. 20591

202-267-9521

By email to: jake.troutman@faa.gov

Re: Hinkle, Colin [Docket No. FAA-2014-0608]

Dear Mr. Troutman and Ms Ferritto:

This responds to the letter of 2 September 2014, from Michelle Ferritto, Acting Manager, 

Airmen and Airspace Rules Division, and to Mr. Troutman’s accompanying email of 3 

September 2014, requesting a statement of the reasons why granting the request would 

be in the public interest; that is, how it would benefit the public as a whole. You also 

asked for any additional information, views, or arguments available to support the 

request.

Granting the petition would be in the public interest because:

1. The Congress of the United States has determined that early accommodation of 

sUAS into the National Airspace System advances the public interest. The 

Committee Report leading the House to adopted H.R. 658 said:
2

"The successful integration of unmanned aircraft systems (UAS) into the 

National Airspace System (NAS) can support more than 23,000 high-paying jobs 

in the United States. . . . The absence of a plan to integrate UASs into the NAS is a 

barrier to such job creation . . . ."1

Granting the Petition represents a step toward such integration, in the absence of 

a comprehensive regulatory regime for sUAS, and thus would serve the 

Congressional goal and the public interest.

2. Granting the Petition would facilitate the creation, display, and public 

distribution of art, long recognized as advancing the public interest. They are at 

the core of the activities that the First Amendment to the United States 

Constitution seeks to promote and to protect from governmental restrictions.

Creative photography and video art fall well within the First Amendment’s 

protections. "Entertainment, as well as political and ideological speech, is 

protected; motion pictures, programs broadcast by radio and television, and live 

entertainment, such as musical and dramatic works fall within the First 

Amendment guarantee. "2

 

1 H. R. Rep. 112-29 on H.R. 658, 112th Cong., 1st Sess. at 116. The House-Senate 

Conference Committee on the FAA Modernization and Reform Act of 2012 

recommended amendments to H.R. 658 in lieu of amendments adopted by the Senate. 

Conference Report to Accompany H.R. 658, H.R. Rep. 112-381, 112th Cong., 2d Sess., at 

p. 1 (Feb. 1, 2012).

2

Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981); White v. City of Sparks, 

500 F.3d 953, 956 (9th Cir. 2007) (holding that self-expression through painting is 

protected by the First Amendment; rejecting city's argument that protection requires a 

political message); Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001) 

(reversing judgment for plaintiff; use of photograph of actor as part of fashion article 

was protected by First Amendment despite commercial purpose); Edme v. Internet 

Brands, Inc., 968 F. Supp.2d 519, 529-530 (E.D. N.Y. 2013) (denying summary judgment 

on statutory right of publicity claim; "newsworthy" broadly construed to allow public to 

benefit from visual images); Hill v. Public Advocate of the United States, ___ F. Supp.2d 

___ , Civil Action No. 12–cv–02550–WYD–KMT, 2014 WL 1293524 (D. Colo. Mar. 31, 

2014) (holding that photograph of gay marriage was within First Amendment 

protection despite its use for political purposes; discussing how access to photograph 

advances the public interest).
3

3. Granting the Petition would enable new forms of news coverage, enabling the 

public to know about and to understand newsworthy events, an activity

similarly within the core of First Amendment protections. 

3

4. Granting the petition would enable Petitioner to demonstrate the commercial

viability of creating art and gathering news with new aeronautical technology 

Commercial creative art is protected as well as non-commercial art.4 The Patents 

and Copyrights Clause of the United States Constitution and the copyright 

statute’s protection of visual art and audiovisual works embody the proposition 

that more creative effort with respect to these kinds of work will be exerted when 

the creators are allowed to be paid for their works, thus increasing the 

production of artistic works. 

Granting the petition will allow the petitioner to respond to economic incentives 

to increase his creative production. The result will be an increase in the stock of 

artistic photography, including video for public enjoyment. 

A significant part of the Petitioner’s activities involve capturing and 

disseminating visual representations of newsworthy events. Receiving

compensation for these newsgathering activities using traditional technologies 

incentivizes Petitioner, resulting in greater output of news. The new technologies 

embodied in sUAS enable different perspectives on the news not easily 

obtainable by traditional means. Allowing Petitioner to be compensated for 

using the new technologies will provide an incentive for him to intensify his 

collection and dissemination efforts.

The rules from which Petitioner seeks exemption artificially and irrationally limit 

the effective use of new technologies to enhance news gathering, thereby 

subverting the public interest.

 

3 Glik v. Cunniffe, 655 F.3d 78, 83-84 (1st Cir. 2011) (citing cases holding that news 

photography is will with First Amendment protection and that protection extends to 

ordinary citizens as well as reporters; affirming denial of immunity to police officers in 

section 1983 suit by citizen who was arrested for using cellphone camera to photograph 

arrest).

4 White, 500 F.3d at 956-957.
4

5. Granting the Petition will fulfill the FAA’s own declaration that encouraging 

new aviation technologies advances the public interest. The FAA itself has 

recognized the public interest in its role of "Encouraging and developing civil 

aeronautics, including new aviation technology."5 Granting the Petition will 

enhance FAA fulfillment of that commitment, thereby serving the public interest. 

Air commerce flourishes in the United States because of the rapid pace of 

innovation in aeronautical and associated technologies, followed by their 

commercialization and their introduction of the marketplace. The drone 

technology that the Petitioner uses exemplifies the latest innovative leap forward 

in aeronautical technology. Preventing him from using this in air commerce 

subverts achievement of the goal.

6. Granting the Petition will fulfill the Congressional determination that integrating 

sUAS technology into the NAS serves the public interest. Section 330 of the FAA 

Modernization and Reform Act of 2012, specifically recognizes the advantages to 

air commerce obtainable from the deployment of sUAS technologies. It 

mandated several steps by the FAA to accelerate the availability of these 

technologies in the National Airspace System, thereby representing a 

congressional determination that the public interest is served by making these 

technologies more widely available at the earliest practicable date. The Petition 

represents a way for the FAA to move incrementally, while still satisfying its

congressional mandate and meeting its obligation to enhance the public interest 

by making new technologies available by allowing the use of sUAS technologies 

in a manner that protects the public and the rest of the aviation community from 

significant risk.

The commercial activities by Petitioner proposed in the Petition represent 

contributions to new forms of air commerce, thereby fulfilling the FAA’s 

statutory mandate under the 2012 Act.

7. Granting the Petition will enhance aviation safety, thereby advancing the public 

interest. The Petitioner has committed himself in the Petition to safety practices 

that reduce or eliminate hazards to aircraft in the National Airspace System and 

to persons and property on the ground. Many others are flying sUAS without

 

5

FAA, Safety: The Foundation of Everything We Do, 

http://www.faa.gov/about/safety_efficiency/.
5

regard to these hazards. Granting the Petition will offer the Petitioner up as an 

example of how the FAA is willing to accommodate the new technology when it 

is constrained by appropriate limitations to enhance safety. It will also allow the 

Petitioner to be a role model for safe commercial sUAS operations.

Users of the National Airspace System are confronted by mushrooming threats 

from sUAS flown in defiance of the FAA’s ban. Unless the FAA shows some 

flexibility to accommodate lawful and safe operation of sUAS for legitimate 

commercial purposes, the level of defiance will increase, intensifying the hazards 

to manned aircraft and to persons and property on the ground.

Respectfully submitted,

Henry H. Perritt, Jr.

Counsel for Petitioner