Case: 1:13-cv-08529 Document #: 1 Filed: 11/26/13 Page 1 of 11 PageID #:1

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL HUERTA, Administrator, Federal
Aviation Administration,
Petitioner,
v.
SKYPAN INTERNATIONAL INC.,
Respondent.

)
)
)
)
)
)
)
)
)
)

No. 13 C 8529

PETITION FOR
SUMMARY ENFORCEMENT OF SUBPOENA
Petitioner the Federal Aviation Administration (FAA), by Zachary T. Fardon, United
States Attorney for the Northern District of Illinois, moves pursuant to 49 U.S.C. §§ 40113, 46104
and 47122; and Title 14, Part 13 of the Federal Aviation Regulations for summary enforcement of
its subpoena served upon respondent and, in support, submits a memorandum of law and exhibits 1
through 5: the subpoena, declaration of FAA attorney Jose L. Nieves, declaration of FAA
inspector John Wilkens, correspondence from FAA to respondent’s attorney, and correspondence
from respondent’s attorney to FAA.
Respectfully submitted,
ZACHARY T. FARDON
United States Attorney
By: s/ Katherine E. Beaumont
KATHERINE E. BEAUMONT
Assistant United States Attorney
219 South Dearborn Street
Chicago, Illinois 60604
(312) 353-7223
katherine.beaumont@usdoj.gov

 Case: 1:13-cv-08529 Document #: 1 Filed: 11/26/13 Page 2 of 11 PageID #:2

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL HUERTA, Administrator, Federal
Aviation Administration,
Petitioner,
v.
SKYPAN INTERNATIONAL INC.,
Respondent.

)
)
)
)
)
)
)
)
)
)

No.
Judge

FAA’s MEMORANDUM OF LAW IN SUPPORT
OF ITS PETITION FOR SUMMARY ENFORCEMENT OF SUBPOENA
Introduction
This is a summary proceeding upon a petition by the Federal Aviation Administration
pursuant to 49 U.S.C. §§ 40113, 46104 and 47122; and Title 14, Part 13 of the Federal Aviation
Regulations.1 FAA seeks the enforcement of an administrative subpoena duces tecum requiring
Skypan International Inc. (hereafter Skypan) to produce any and all business records, agreements,
contracts, email communication, proposals, photographic products and/or materials and records of
payment, in the possession or control of Skypan, relating to a contract for aerial photography
between Macklowe Properties and Skypan concerning the photography of the area surrounding
440/432 Park Avenue, New York, New York. The FAA’s administrative subpoena duces tecum
also required Skypan to produce any and all surveys, reports, photographs and/or materials, in the
possession or control of Skypan, relating to the use of the Skypan RPV System, or any other

1

Proceedings to enforce administrative subpoenas are summary in nature as permitted
by Fed. R. Civ. P. 81(a)(5).

 Case: 1:13-cv-08529 Document #: 1 Filed: 11/26/13 Page 3 of 11 PageID #:3

unmanned aerial system, in the New York and Chicago Class-B airspace to conduct commercial
aerial photography.
Skypan has refused to comply with the subpoena. The FAA seeks enforcement of the
subpoena upon the grounds that the FAA is authorized by statute to issue the subpoena in question,
it has complied with the procedural requirements incident to the issuance of the subpoena, the
records sought by the subpoena are relevant to an authorized activity of the FAA, and the subpoena
is not unreasonably broad or burdensome.
Facts
Skypan is a private, for-profit photography company with headquarters at 711 North
Milwaukee Avenue in Chicago, Illinois, that specializes in aerial photography. The company has
advertised on the internet their use of unmanned aircraft to produce aerial photography and
videography products that cannot be obtained through conventional use of manned aircraft.
Based on information discovered during the course of an FAA investigation, the FAA has
reason to believe that Skypan operated an unmanned aircraft for commercial purposes within five
miles of the New York LaGuardia Airport. This area is within the lateral limits of the New York
Class B airspace from the surface to 7000 feet. Operating in this area requires the pilot of an
aircraft to receive Air Traffic Control clearance prior to operation. In addition, any aircraft
operating within Class B airspace must be equipped with an operable coded radar beacon
transponder having Mode C capability and an operable two-way radio capable of communication
with Air Traffic Control on the appropriate frequencies. The evidence of the investigation
revealed that Skypan had not complied with these and other Federal Aviation Regulations.
Therefore, the FAA believes that Skypan’s operation of its unmanned aircraft to conduct
2

 Case: 1:13-cv-08529 Document #: 1 Filed: 11/26/13 Page 4 of 11 PageID #:4

commercial aerial photography in the New York and Chicago metropolitan areas may have
violated Federal Aviation Regulations.
The FAA’s investigation seeks information regarding Skypan’s commercial contract with
Macklowe Properties on behalf of 56th and Park (NY), LLC, (hereinafter Macklowe Properties) to
conduct aerial photography using an unmanned aircraft in the vicinity of 440 Park Avenue and 432
Park Avenue within the New York Class B airspace area.
In early February 2012 an anonymous complaint was filed with the FAA regarding the
commercial use of an unmanned aircraft to take aerial photography within the New York Class B
airspace contrary to Federal Aviation Regulations. On or about February 3, 2012, Mark Segal,
Skypan co-owner, was contacted by Aviation Safety Inspector (ASI) James Ciccone, Farmingdale
Flight Standards District Office (Farmingdale FSDO), and advised that commercial operation of
unmanned aircraft in the New York Class B airspace is not authorized by Federal Aviation
Regulations. In addition, on or about March 21, 2012, ASI Clifford Sweatte emailed Mr. Segal
advising him that commercial use of an unmanned aircraft in the New York Class B airspace is not
authorized and contrary to the public safety.
In early September 2012, a second anonymous complaint was made to the Farmingdale
FSDO stating that Skypan was again engaged in commercial unmanned aerial photography in the
New York Class B airspace area. ASI John Wilkens, Farmingdale FSDO, investigated the
allegation that Skypan had operated an unmanned aerial aircraft in violation of Federal Aviation
Regulations.

On or about September 19, 2012, ASI John Wilkens contacted Mr. Richard

Dubrow, employee of Macklowe Properties, regarding the circumstances surrounding their
contract with Skypan for aerial photography services. Mr. Dubrow confirmed that Macklowe
3

 Case: 1:13-cv-08529 Document #: 1 Filed: 11/26/13 Page 5 of 11 PageID #:5

Properties did contract with Skypan for commercial aerial photography of a development project
at 432 Park Avenue, New York, NY.
On November 11, 2012, ASI Wilkens issued a letter of investigation to Skypan advising
the company that the FAA was investigating the operation of an unmanned aircraft system for the
purpose of commercial photography by Skypan International on or about May 8, 2013, in the
vicinity of 432 Park Avenue, New York, New York.
On December 12, 2012, the FAA issued an administrative subpoena duces tecum to
Macklowe Properties requiring the company to produce any and all business records, agreements,
contracts, photographic products and/or materials and records of any payment relating to a
contract for aerial photography between Macklowe Properties and Skypan. Macklowe Properties
complied with the FAA’s administrative subpoena duces tecum and produced various business
records, receipts, copies of photographs, and written statements clarifying the dates that the
unmanned aerial photography took place.
The information provided by Mackowe Properties indicated that Skypan agreed to provide
Macklowe Properties unmanned aircraft aerial photography services to be conducted in May, July,
August, and September of 2012.

The unmanned aircraft aerial photography services were

conducted in the vicinity of 440/432 Park Avenue, New York, New York. 2012. The business
records detailed performance of commercial aerial photographs during both daytime and evening
hours at altitudes between 350 feet and 1400 feet using an unmanned aircraft. Macklowe
properties paid Skypan approximately $130,622 for all the unmanned aircraft aerial photography
services provided during May, July, August, September and October 2012.

4

 Case: 1:13-cv-08529 Document #: 1 Filed: 11/26/13 Page 6 of 11 PageID #:6

On August 2, 2013, the FAA served upon Skypan the document subpoena at issue. The
records sought from Skypan will assist the agency in its determination of whether, and to what
extent, Skypan violated Federal Aviation Regulations. Accordingly, the FAA has a legitimate
interest in these records. Skypan has refused to comply with the subpoena2. Ex. 5.
Jurisdiction and Venue
Because this case arises under 49 U.S.C. Section 46104, which authorizes the FAA to
enforce a subpoena for compliance, and by petitioning “a Court of the United States to enforce the
subpoena,” See 49 U.S.C. §4610(b), this court has jurisdiction over this enforcement action under
28 U.S.C. §1331.
Venue is proper under 28 U.S.C. §1391(b) because Skypan is located within this judicial
district and because this proceeding arises from Skypan’s refusal to produce information to the
FAA.
Argument
The court should enforce the FAA subpoena served upon respondent Skypan and compel
production of the records requested. “In a subpoena enforcement proceeding, the role of the court
is ‘sharply limited.’” Inspector General, United States Dep't of Housing and Urban Dev. v. St.
Nicholas Apts., 947 F. Supp. 386, 388 (C.D. Ill. 1996)(quoting E.E.O.C. v. Tempel Steel Co., 814
F.2d 482, 485 (7th Cir. 1987)).

Generally, administrative subpoenas are enforced if the

subpoena: (1) is within the statutory authority of the agency; (2) seeks information reasonably
relevant to the inquiry; (3) is not unreasonably broad or burdensome; and (4) seeks information not
2 Skypan objects, in part, because the FAA informed the company that it had been the

subject of an investigation that did not establish a violation and was closed. That prior closed
investigation is separate from the current investigation. Ex. 3, ¶¶ 5-7.
5

 Case: 1:13-cv-08529 Document #: 1 Filed: 11/26/13 Page 7 of 11 PageID #:7

presently in the possession of the government. United States v. Powell, 379 U.S. 48, 57 (1964);
United States v. Morton Salt, 338 U.S. 632 (1950); United States v. Westinghouse Elec. Corp., 788
F.2d 164, 166 (3d Cir. 1986). The Seventh Circuit has followed this standard. Chao v. Local
733, 467 F.2d 1014 (7th Cir. [YEAR??]) E.E.O.C. v. Quad/Graphics, Inc., 63 F.3d 642, 645 (7th
Cir. 1995)(“As a general proposition, courts enforce an administrative subpoena if it seeks
reasonably relevant information, is not too indefinite, and relates to an investigation within the
agency’s authority.”). In Quad/Graphics, the court explained that when a court reviews an
administrative subpoena, it must be “satisfied that the demand for information is not ‘too
indefinite’ and that it has not ‘been made for an illegitimate purpose.’” 63 F.3d at 645 (citations
omitted). As shown below, the FAA subpoena served on Skypan in this case seeks reasonably
relevant information, is not too indefinite, and relates to an investigation within the FAA’s
authority and responsibility.
A.

The Issuance of the FAA Investigative Subpoena Was Within Petitioner’s Statutory
Authority.
Congress has made it the “duty and responsibility” of the Federal Aviation Administration

to conduct investigations related the aviation safety and as such may subpoena witnesses and
records related to a matter involved in the investigation from any place in the United States to the
designated place of the hearing or investigation pursuant to 49 U.S.C. § 46104. This allows the
FAA to conduct, supervise, and coordinate investigations relating to the programs and operations
of the FAA. The FAA is authorized to subpoena all information, documents, reports, answers,
records, accounts, papers and other data and documentary evidence necessary in the performance
of its duties. Id . §46104(a)(1-4).

6

 Case: 1:13-cv-08529 Document #: 1 Filed: 11/26/13 Page 8 of 11 PageID #:8

The administrative subpoena issued by the FAA Eastern Regional Counsel was issued
because it was determined during the FAA investigation that it was necessary to obtain the
respondent’s business records and to review those records to determine if, and to what extent,
Skypan’s operation of an unmanned aircraft violated Federal Aviation Regulations during May,
July, August, and September of 2012. The requested information is essential to completion of the
FAA investigation, and Skypan’s failure to comply with the subpoena impairs this ability.
B.

Petitioner Complied With Applicable Procedural Requirements.
The issuance of the FAA’s investigative subpoena to Skypan was in compliance with the

FAA Eastern Regional Counsel’s internal procedures. Pursuant to the authority legally delegated
to him, the Eastern Regional Counsel issued the subject subpoena, which was properly served
upon Skypan on August 2, 2013.
C.

The Information Sought in the FAA’s Subpoena Is Reasonably Relevant to
Petitioner’s Investigation.
The FAA’s subpoena seeks documents that are relevant to its investigation of Skypan’s

violation of Federal Aviation Regulations. In the context of enforcing subpoenas, “relevance” is
defined liberally. So long as the material requested “touches a matter under investigation,” the
subpoena will survive a challenge that the material is not relevant. E.E.O.C. v. Elrod, 674 F.2d
601, 613 (7th Cir. 1982)(quoting Motorola v. McLain, 484 F.2d 1339, 1345 (7th Cir. 1973), cert.
denied, 416 U.S. 936 (1974)). Moreover, an agency’s appraisal of relevancy “must be accepted
so long as it is not obviously wrong.” In re McVane, 44 F.3d 1127, 1135 (2d Cir. 1995)(quoting
Resolution Trust Corp. v. Walde, 18 F.3d 943, 946 (D.C. Cir. 1994)).

7

 Case: 1:13-cv-08529 Document #: 1 Filed: 11/26/13 Page 9 of 11 PageID #:9

The records sought here undoubtedly touch the matters at issue in the investigation:
whether Skypan operated an unmanned aircraft to conduct commercial aerial photography in
violation of the Federal Aviation Regulations. The subpoena seeks review of Skypan’s email
communications, business records, receipts, and photography products related Skypan’s
unmanned aircraft aerial photography. These records are expected to show when, where, and for
what purpose Skypan operated an unmanned aircraft in the New York Class B airspace in May,
July, September, and October of 2012.

Such records are directly relevant to the FAA

investigation.
D.

The Subpoena Is Not Unreasonably Broad or Burdensome.
The subpoena is reasonably focused on materials at the center of FAA investigation,

namely, records related to Skypan operation of unmanned aircraft for commercial aerial
photograph in controlled airspace in violation of Federal Aviation Regulations. The respondent
has the burden of showing that the subpoena is unreasonable. Dow Chemical v. Allen, 672 F.2d
1262, 1267 (7th Cir. 1982); St. Nicholas Apts., 947 F. Supp. at 392. Where the agency inquiry “is
authorized by law and the materials sought are relevant to the inquiry, that burden is not easily
met.” S.E.C. v. Brigadoon Scotch Distributing Co., 480 F.2d 1047, 1056 (2d Cir. 1973), cert.
denied, 415 U.S. 915 (1974). Indeed, “[s]ome burden on subpoenaed parties is to be expected and
is necessary in furtherance of the agency’s legitimate inquiry and the public interest.” F.T.C. v.
Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977). However, “broadness alone is not sufficient
justification to refuse enforcement of a subpoena so long as the material sought is relevant.”
Adams v. F.T.C., 296 F.2d 861, 867 (8th Cir. 1961), cert. denied, 369 U.S. 864 (1962).

8

 Case: 1:13-cv-08529 Document #: 1 Filed: 11/26/13 Page 10 of 11 PageID #:10

In this case, the FAA’s investigative subpoena is reasonably restrictive inasmuch as it
seeks only records that are related to Skypan’s operation of an unmanned aircraft to conduct aerial
photography for Macklowe Properties and in any operation of an unmanned aircraft within the
Class B airspace of New York and Chicago from January 1, 2012, through August 2, 2013. The
information contained in the records is crucial to determining whether Skypan violated Federal
Aviation Regulations during its operation of unmanned aircraft in the Class B airspace of New
York and Chicago. See Westinghouse, 788 F.2d at 171. Given the FAA’s investigative and
subpoena authority and the limited scope of the subpoena at issue, Skypan cannot resist
compliance on the basis of undue burden. The subpoena narrowly defines the documents needed,
as well as the time period for the documents. The time period specified in the subpoena—January
1, 2012, to August 2, 2013—is within the period of time that Skypan and Macklowe Properties
contracted for unmanned aerial photography in the Class B airspace of the New York metropolitan
area. Furthermore, the documents demanded cover a relatively short time period of one year and
seven months.

As such, any potential inconvenience or disruption to Skypan’s business

operations should be minor, if any. See Quad/Graphics, 63 F.3d at 645 (“subpoena will not be
enforced if the demand is ‘excessively burdensome,’ that is, if ‘compliance would threaten the
normal operation of respondent's business.’”) (citations omitted). Accordingly, Skypan should be
ordered to comply with the subpoena.

9

 Case: 1:13-cv-08529 Document #: 1 Filed: 11/26/13 Page 11 of 11 PageID #:11

Conclusion
For the foregoing reasons, petitioner requests the court to compel Skypan to comply with
the FAA subpoena (Pet. Ex. 1) within 30 days.
Respectfully submitted,
ZACHARY T. FARDON
United States Attorney
By: s/ Katherine E. Beaumont
KATHERINE E. BEAUMONT
Assistant United States Attorney
219 South Dearborn Street
Chicago, Illinois 60604
(312) 353-7223
katherine.beaumont@usdoj.gov
Of counsel:
Alfred R. Johnson Esq.
Eastern Regional Counsel
Federal Aviation Administration
1 Aviation Plaza
Jamaica, New York 11434

10