An order is not an order unless it comes from one specific FAA office, the agency says.
Gene Robinson, Texas EquuSearch's pilot. Image: Texas EquuSearch
When is a government order not an order? When it comes from the Federal Aviation Administration, apparently. In the latest in several ongoing legal sagas, the agency has contradicted itself once again when it comes to the legality of commercial and hobbyist drones.
The agency refused a request from Texas EquuSearch, a nonprofit search-and-rescue group, to stay an order demanding that the group not use drones, based entirely on the idea that its first cease-and-desist order was not an "order."
But, as appears to increasingly be the case, the agency's latest actions have far-reaching ramifications. With the move, the agency just suggested that most, if not all, of the cease-and-desist notices it has sent to commercial drone operators are not actually orders.
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In a response to Texas EquuSearch's original letter, Jerome Mellody, the agency's general counsel, wrote that, "as a preliminary matter, [the original letter] incorrectly refers to the February 21, 2014 email from Mr. Brunner, an Aviation Safety Inspector in the FAA's Aviation Safety organization, as an FAA order directing [Texas EquuSearch] to cease its operations. Authority to initiate an enforcement action, including issuance of a cease and desist order, is delegated specifically to the FAA's Office of the Chief Counsel … Brunner's informal email to [Texas EquuSearch] is not an order."
By that logic, the FAA is saying that the many, many letters—none from the Office of the Chief Counsel, most saying to "cease" activities—it has sent to commercial operators of drones are not "orders," and can, therefore, be ignored.
Mellody goes on to write that, as long as Texas EquuSearch operates safely, it will "not be subject to future rules regarding model aircraft adopted by the FAA." He writes that the organization's request to stay the original order is not "necessary or appropriate."
It seems like a win for Texas EquuSearch, until you actually read the first email the FAA sent back in February. In no uncertain terms, Brunner told Texas EquuSearch that its flights were not authorized and are therefore "illegal," regardless of whether the group was complying with voluntary hobby guidelines or not. He suggested that the group's flights are "an illegal operation, regardless if it is below 400 ft, visual line of sight, or doing volunteer search-and-rescue."
Gene Robinson, the man who does the flights for Texas EquuSearch, says that he's been harassed by the FAA by phone and by email multiple times. The latest letter from the FAA essentially suggests that he ignore those calls and emails and continue operating—unless the agency decides to fine him otherwise.
So it's not really a surprise that Robinson, Texas EquuSearch founder Tim Miller, and their lawyer, Brendan Schulman, decided to move forward with a request to the US Court of Appeals for the District of Columbia Circuit requesting an emergency stay of the FAA's order until a judge hears the case. In that emergency motion, Schulman argues that "granting a stay could mean the difference between life and death for a missing child."
The argument Schulman makes is essentially the same one he's been making for months in defending another one of his clients, Raphael Pirker, who was the first commercial drone operator to be fined by the FAA. The FAA has never made formal regulations barring the commercial operation of drones, so it can't go about fining people who ignore the agency's suggestion that making money with one is "illegal."
That argument stands as a defense for Texas EquuSearch to continue flying. But the nonprofit organization is not, by any measure of the word, a "commercial" entity, so the agency's suggestion that what they're doing is somehow illegal makes even less sense, considering that hobby use of drones has always been unregulated and legal.
Texas EquuSearch has "ceased all use of model aircraft in search and rescue activities, notwithstanding constant demand," Schulman wrote. "Approximately 80 percent of requests to the organization are situations in which a model aircraft would be of enormous benefit … a stay will pose no harm to anyone because, as the FAA must readily admit, anyone may legally operate a model aircraft, in the same manner as Texas EquuSearch, in the same locations, for recreational or hobby purposes."
The group could, without all that much legal risk, continue using drones for search-and-rescue, but has chosen not to without the promise that the FAA won't go after it for safe flights.
By refusing the request for a stay of its original order, Mellody didn't really help clear things up, and there's no promise that the group wouldn't continue to be harassed by the FAA's many safety and regional offices. Texas EquuSearch can be forgiven for not wanting to expressly disobey a federal agency and for seeking some clarity on the issue, and it appears that the only way they're going to get that at the moment is from a federal judge.
Both the FAA's letter to Texas EquuSearch and Schulman's emergency motion for a stay are embedded below.