## 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 Independ ence Ave., S.W. Washington, D.C. 20591
202

- 267

- 9521

B y email to: jake.troutma n @faa.go v

Re: Hinkle, Colin [Docket No. FAA

- 2014

- 0 608 ]

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.

Gran ting 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 advance s the public interest. The Committee Report leading the House to adopte d H.R. 658 said:2

"The succe s s ful 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 c reation, 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 gua rantee. " 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 (Fe b. 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 protectio n 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 protection s

. 3
4. Granting the petition wo uld enable Petitioner to demonstrate the commercial viability of creating art and gath ering news with new aeronautical technology Commercial creative art is protected as well as non

- commercial art. 4 T he Patents and Copyrights Clause of the United States Constitution and the copyright

statute ’ s protection of visual art and audiovisual works embod y 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

. R eceiv ing compensation for these newsgathering activities using traditional technologies
incentiviz es Petitioner, resulting in greater output of news . The new technologies embodied in sUAS enable different perspective s on the news not easily obtainable b y 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 new s 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 c itizens 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 W hite, 500 F.3d at 956

- 957.4

5. Granting the Petition will fulfill the FAA ’ s own declaration that encour aging new aviation technologies advances the public interest. The FAA itself has recognized the public interest in its role of "Encouraging a nd 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
i nnovation in aeronautical and associated technologies, followed by their commercialization and their introduction of the marketplace. The drone technology that the Petitioner use s exemplifies the latest innovative leap forward
in aeronautical technolog y

. Preventing him from using this in air commerc e subverts achievement of the goal

. 6. Granting the Petition will fulfill the Congressional de termination 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 commerc e obtainable from the deployment of s U A S technol ogies. It mandate d several steps by the FAA to accelerate the availability of these technologies in the National Airspace System , thereby representing a congressional determination th at the public interest is served by making these

te chnologies more widely available at the earliest practicable date. The Petition represents a way for the FA A to move incrementally, while still satisfying its
congr essional mandate and meeting it s obligation to enhance the public interest by maki ng new technologies available by allowing the use of sUAS technologies in a manner that protects t he 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 f ulfilling the FAA ’ s statutory mandate under the 2012 Act.

7. Granting the Petition will e nhance aviation safety, thereby advancing the public
interest. The Petitioner has committed himself i n the Petition to safety practices that reduce or eliminate hazards to aircraft in the Nat ional 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 Peti tioner up as an example of how the FAA is willing to accommoda te 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 confronte d by mushrooming threats from sUAS flown in defiance of the FA A ’ s ban. Unless the FAA shows some flexibility to accommodate lawful and safe operation of sUAS for legitimate

commerc ial purposes , the level of defiance will increase, intensifying the hazards to manned aircraft and to per sons and property on the ground.
Respectfully submitted,

Henry H. Perritt, Jr. Counsel for Pet itioner