How a Swiss man turned a regulatory loophole into a drone-sized opportunity for business.
Update: The FAA says it is appealing the decision, which it says will have the effect of staying the decision until the full board rules. Fundamentally, this changes nothing because there are still no regulations against the use of commercial drones.
Here's the FAA's full statement: “The FAA is appealing the decision of an NTSB Administrative Law Judge to the full National Transportation Safety Board, which has the effect of staying the decision until the Board rules. The agency is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.”
Thursday, a federal judge threw out the Federal Aviation Administration’s case against Raphael Pirker, the first person fined for flying commercial drones in the United States. The decision was big not just for Pirker, but for the entire industry: For the moment, commercial drones are completely legal.
A final decision isn't likely going to come that easy, but it’s worth taking a look at how this happened and where we’re going from here. Right now, drones are essentially legal based on a technicality—Pirker (and others who fly drones commercially) are allowed to do so because the FAA was complacent or incompetent, depending on who you ask.
Here are the quick details of the case and the general legal status of drones, as explained to me by the FAA, multiple legal experts, Pirker, and his lawyer, Brendan Schulman:
It has always been legal to fly model airplanes. In fact, they predate the FAA by a couple decades. The FAA has never regulated model airplanes, and small drones are essentially the new model airplanes. In 1981, the FAA put out some voluntary guidelines (known as AC 91-57) that asked model airplane flyers to stay under 400 feet, fly within line of sight, and to try to not fly near airports.
Beyond that (and remember, they are voluntary, though most people stick to them pretty closely), there is no legislation or rule that says you can’t fly a model airplane. In the mid 2000s, some people started seeing the business potential for drones with cameras, and the FAA began to get a bit worried. They put out what is known as a “policy statement” that said people who fly drones commercially are doing so without authority:
“The FAA recognizes that people and companies other than modelers might be flying UAS with the mistaken understanding that they are legally operating under the authority of AC 91-57. AC 91-57 only applies to modelers, and thus specifically excludes its use by persons or companies for business purposes,” the policy statement said.
The problem with this, however, is that a policy statement is, legally speaking, a meaningless piece of paper. The main way that federal agencies enact regulations is through a process known as notice and public comment. An agency issues a proposed rule, people who have a vested interest have the chance to say their piece, changes are made, and then it becomes an official, legally-enforceable regulation. The FAA never did this with regard to commercial drones. It was either an oversight or the agency thought no one would bother to challenge them on this.
Pirker, who the agency tried to fine $10,000, did.
Pirker with his drone in the American southwest. Image: Team BlackSheep
If you ask the FAA, they will tell you they did not fine Pirker because he was flying a drone commercially, though everyone else assumes that's why the agency did so. Pirker is a very well known drone pilot who the FAA has had its eye on for several years, after he made a video of his drone flying around Manhattan’s skyscrapers—but it never took legal action against him because he made no money from the video.
In this instance, Pirker flew a two pound foam aircraft around the University of Virginia’s campus, hardly anything that would raise any eyebrows—people do things like that all the time. The only difference was he took money to do it this time.
Anyways, the FAA, unable to get him on a “commercial drone” regulation violation, instead tried to fine him for “reckless operation of an aircraft.” Going after him on this was a very big gamble, because that statute continually references things like “aircraft cabin” and onboard pilots and things of that nature, which drones don't have. Qualifying drones as "aircraft" opens up a whole sticky mess of conflicting definitions. For example, you can be cited for a reckless flying violation for flying below 500 feet, which is in direct contradiction with the please-fly-model-aircraft-below-400-feet guideline.
Pirker and Schulman argued that his foam drone was not an “aircraft” as defined by the FAA, primarily because of those contradictions and the fact that every time the FAA has ever mentioned model aircraft or UAS, it has specifically said “model” or “unmanned.”
The judge, Patrick Geraghty of the National Transportation Safety Board, agreed, but he went way beyond that. Because the FAA did mention that they were in fact mad that Pirker took some money for his flight, Schulman was able to argue his point about the FAA never officially regulating drones. That’s where this gets interesting.
Geraghty bought Schulman’s argument and wrote in his decision that the FAA “has not issued an enforceable Federal Acquisition Regulation regulatory rule governing model aircraft operation; has historically exempted model aircraft from the statutory FAR definitions of ‘aircraft’ by relegating model aircraft operations to voluntary compliance with the guidance expressed in [the 2007 policy notice], Respondent’s model aircraft operation was not subject to FAR regulation and enforcement.”
In other words, Geraghty said the FAA can't fine Pirker—or anyone else—because the FAA never regulated drones in the first place.
After this decision, drone pilots can charge for their work without worry that the FAA can intervene. They already couldn’t intervene, because there was no regulation, but that didn’t stop the FAA from sending out intimidatingly-worded violation notices. Nor did it stop FAA spokesmen from saying there is “no gray area” on the legality of commercial drones and outright saying they’re illegal.
Not everyone is willing to take on a federal agency when the alternative is to just stop flying (and one law expert I spoke with said “you’d have to be nuts” to ignore the 2007 policy statement), but Pirker did.
That doesn’t mean that all commercial drones are going to be legal forever. The FAA clearly still wants to have some sort of rules governing this—the administration wouldn’t have spent all this time making test sites around the country and going to Congressional hearings if that were the case. They’ve even tabled a long-overdue official small drone rule until at least November, because they don’t know what to do with them.
For the moment, you can probably assume that beer delivery drones, tacocopters, aerial photography and anything else that uses a small drone is legal. Airplane-sized drones, on the other hand, probably are not “models,” so those are probably still illegal to fly commercially.
You might see a new crop of small businesses using drones, but don’t hold your breath for Amazon drones or UPS drones or anything of that nature right away. The FAA is still very much not into the idea of anyone flying drones commercially without their express permission, so you (probably) aren’t going to see major corporations defying them.
A statement from the Association for Unmanned Vehicle Systems International said as much. “We are reviewing the decision very carefully and we have also been in touch with the FAA to discuss its implications and the agency’s response," it reads. "Our paramount concern is safety. We must ensure the commercial use of UAS takes place in a safe and responsible manner, whenever commercial use occurs. The decision also underscores the immediate need for a regulatory framework for small UAS.”
That’s about as cautious as you can get for a group of businesses that are desperate to use this technology, and that have hammered the FAA’s slow implementation of drones at every corner.
As for the FAA’s next move, that’s harder to say. A spokesperson for the agency said it is still reviewing the decision and that they have the right to appeal the decision. The spokesperson did not say if they definitely would or not. Beyond that, the FAA still definitely has the authority to regulate the airspace—they just haven’t, yet. They could try to introduce an emergency rule, which could still take months, they could start the notice and public comment process now, or they might do nothing.
For now, take your drone outside and celebrate—just make sure you charge bystanders for the pleasure of watching.