Unenforceable Commercial Drone “Regulations” Will Speed Real Thing

The Federal Aviation Administration (FAA) attempted to fine Swiss unmanned aerial systems (UAS) pilot Raphael Pirker $10,000 for using a winged drone equipped with camera to film a commercial on the campus of the University of Virginia (UV), arguing the flights violated current FAA regulations. Pirker disputed the claim, arguing successfully that current regulations do not apply to model aircraft operation. National Transportation Safety Board (NTSB) judge Patrick Geraghty granted Pirker’s request that the FAA’s complaint be dropped.

Salients

  • Regulation Lacking – In his decision, Judge Geraghty ruled that during the time of the UV flights “there was no enforceable FAA regulation applicable to model aircraft or for classifying model aircraft as unmanned aircraft systems.”
  • Loosening Grip ­-  Although the FAA recently loosened the 6 year ban on drone flying in November 2013 to permit for their use in certain situations (like on private farms), this new ruling could allow for a much wider scale of use.

ARIS Analysis

  • Regulation Kludge – In the face of a burgeoning drone market, the FAA issued a number of policy statements designed to regulate commercial UAS systems. In 2007, the FAA issued a policy statement prohibiting the use of UASs for commercial purposes without operating approval from the FAA. According to other policy memoranda (which includes voluntary guidelines), the FAA does not require approval for flying model aircraft solely for hobby or recreational use. Hobby aircraft used for commercial purposes, however, would require special airworthiness certification.The FAA contended that since Pirker made money from creating the video, he acted illegally. But Pirker’s lawyer contended that enforceable federal regulation prohibiting the commercial operation of UAS does not exist (the FAA disagrees). He contended that the FAA, in its haste to develop regulations for commercial drones, did not follow the mandated, formal processes for creating agency regulations. For example, the FAA did not publish the proposed rules and allow for a comment period by the public. Pirker’s lawyer went on to note that the issuance of UAS policy statements and other advisories does not constitute enforceable regulations. Judge Geraghty agreed that these policy statements are not binding on the public, and thus are unenforceable.
  • Possible Recourse – The FAA filed an appeal the day after the ruling, citing national airspace safety concerns. As an example of the dangers, the FAA described an accident at a recent event where three people were struck by a falling drone at a sporting event. More importantly, the original FAA suit described the October, 2011 flights of the Ritewing Zephyr winged drone as flying dangerously close to people, buildings, railway tracks and other obstacles. The FAA interprets these actions as “reckless.” If the FAA were to win the case, it would be the first time the pilot of an UAS fined in the manner of a traditional pilot for reckless flying.
  • Getting Involved – In December 2013, one of the largest law firms in the US, Kramer Levin, setup what appears to be the first unmanned aircraft system practice group. Brendan Schulman, Raphael Pirker’s lawyer, is a member of this group.
  • Anarchy in the Skies – If upheld, the NTSB decision by Geraghty could open the floodgates to commercial drone operators (large and small drones) willing to ignore FAA cease-and-desist orders and threats of fines. The longer this area continues without a formal set of regulations or licensing of pilots, the more difficult it will become for the FAA to control the skies. Regulations for drones less than 55lbs were expected in 2011, but that deadline was missed. The 2015 deadline for the introduction of drones into the national airspace will also likely be missed. The Geraghty decision (which appears is on sound legal footing), while not in the FAA’s favor, will act as an impetus to speed the development of formal, legal regulations for commercial UAS operations. Regulations for small UAS would likely come first.

Resources
Team Blacksheep – Website
RiteWingRC – Website
Federal Aviation Administration vs Raphael Pirker – Ruling
US Federal Aviation Authority (FAA) – Website
FAA Modernization and Reform Act of 2012 – Report
Integration of Civil Unmanned Aircraft Systems in the National Airspace System Roadmap – Website

About the Author

Toren Kutnick

Toren Kutnick is Research Director at Myria RAS, Inc. He can be reached at tkutnick(AT)myriaresearch(DOT)com.

2 thoughts on “Unenforceable Commercial Drone “Regulations” Will Speed Real Thing

  1. Pingback: Robotics | La Semana en Robótica. 23 de marzo, 2014

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