If there was any remaining doubt that the Federal Aviation Administration is just making up its drone policies as it goes along, look no further than the way the agency handled the Washington Archdiocese filming its canonization procession last weekend.
The fact that the Catholic Church has now officially begun using drones is one of the surest signs yet drones are entirely mainstream, and are changing whole industries—most notably aerial photography. The video the church put together for the canonization of former Pope John Paul II is slick and features some nice footage of the National Shrine in Washington, DC.
That last bit should give you pause though: You’re not allowed to fly anything, not even toy airplanes, in Washington DC. Even with explicit FAA permission, a planned jetpack demonstration was moved inside last weekend partly because of fears it would be “shot down.”
Surely, the FAA wouldn’t be thrilled that someone—even a religious organization—was using drone footage from within city limits in a promotional video.
Instead, the FAA told the Washington Post that the drone flight sounded like “an unusual situation. They’re not really a commercial entity per se, but neither are they a private entity.”
In some sense, this is a bit of a nightmare scenario for the FAA. The agency doesn't want to be seen as coming down unnecessarily hard on the Catholic Church. There are First Amendment issues to consider. It's easiest for the agency to just ignore that it happened.
But, at the same time, according to FAA rules, no one, not even God, is allowed to fly in Washington DC’s Flight Restricted Zone, which extends 15 miles outside the city. So why is this an unusual situation? Who knows. But the FAA appears not to care that this happened. And that’s the problem, kind of. It is picking and choosing cases, seemingly at random, to make a big fuss about. It is completely ignoring others.
Are you a highly-trained foreigner who has been doing this for years? Expect to get slapped with a $10,000 fine and an extremely lengthy judicial process for a styrofoam drone flight that the FAA says endangered statues at the University of Virginia, even though the footage was not widely publicized and resulted in no incident whatsoever.
Are you a commercial communications company that was hired by a local government to film a marathon? Expect the FAA to look the other way.
Are you a dumb hobbyist who definitely broke no laws but got arrested by police and caused a ruckus? Expect the FAA to make you the first hobbyist it has ever fined, despite decades of no regulation whatsoever and dozens of past statements to reporters that suggest hobbyists are not subject to FAA regulation.
And, apparently, if you’re the Archdiocese of Washington, you’re an “unusual situation” and you get a free pass.
FAA spokesperson Les Dorr told me that it “won’t speculate on potential flights by the Archdiocese outside the Flight Restricted Zone.”
“The real distinction for such flights would be whether their UAS is a ‘model aircraft’ operated for hobby or recreational use as defined in the FAA Reauthorization legislation or if the UAS is being operated for some other purpose,” he said. “If a UAS is operated other than for hobby or recreational use, it is subject to FAA regulation.”
Isn’t the inverse then true? If a drone is recreational, then it should be outside of FAA regulation, correct? Then how do you make sense of the hobbyist who was just fined? And, for the record, apparently, DC-based priests can fly drones (outside of Washington), as long as they are just doing it for fun, according to the FAA. Somehow, that seems like an unlikely situation.
Finally, where does Texas EquuSearch, the noncommercial entity that flies drones for search and rescue missions only in the middle of nowhere (not in the nation’s capital) fall in? Are they not an “unusual case?”
This is what happens when you try to regulate without making regulations. This is what happens when you are caught completely unprepared for a new popular technology that you, as a federal agency, may not like. You confuse the hell out of everyone, to the point where no one knows what the hell is going on. It's how you end up with a Twitter feed that's constantly clarifying and explaining and contradicting itself. It's how you end up with people literally saying "screw it" and flying commercially anyway.
This is an agency that has no idea what it’s doing. It’s making up things as it goes along. Drones aren't going away—the only way this problem gets any better is if they come out with regulations. Real regulations with a public comment period and real regulations that go through the standard rulemaking process. You're seeing it right now with electronic cigarettes. Say what you want about the process, but the FDA isn't trying to fine e-cig makers that it doesn't like, not before it has a rule.
Until you make actual rules about what people can and cannot do, they can do anything. That should scare the hell out of the FAA. They can fine and intimidate and tell people to stop flying, but they will lose every single court case until they have codified rules. These cases should have lit a fire under the agency's ass long ago. Instead, even a preliminary rule isn't expected until November, long after they were originally due. The drone's Wild West days will prevail until then.