If successful, the move could have far-reaching ramifications in the industry.
For the first time ever, the Federal Aviation Administration is trying to fine a hobby drone operator, a development that threatens to throw the whole hobby into disarray if the agency successfully levies the fine.
The model aircraft industry—which includes drones, remote-control helicopters, and all other manner of unmanned aircraft—has existed longer than the FAA. During that time, the FAA has never made official regulations, which is why it’s now tentatively legal for a person to fly a drone commercially. While the FAA has explicitly said it doesn’t want anyone flying drones commercially, it has never issued similar suggestions about hobby flight, which is why it has been just fine for some guy to fly a drone above a tornado, but illegal, in the FAA’s eyes, for a journalist to do the same.
That has changed, according to the agency. A spokesperson for the FAA told me that the agency “has proposed a civil penalty against an individual in New York City. The operator, who is a hobbyist, flew a [drone] carelessly or recklessly and violated air traffic rules as well. He ran the [drone] into a couple of buildings and it crash-landed 20 feet from a person.”
The spokesperson would not say how much it is trying to fine the person and would not identify him, but the facts they told me line up very, very closely with this incident, which took place in midtown Manhattan in October 3rd:
The operator of that drone, David Zablidowsky, was arrested by the New York City Police Department and charged with reckless endangerment. And now, apparently, he will face some sort of fine from the FAA.
When I asked the FAA if they were indeed fining Zablidowsky, they told me that I was “probably” referring to the correct incident. I have reached out to Zablidowsky to see if he wants to talk about the incident but I haven’t heard back. The FAA has not yet given us documents detailing the exact specifics of the case and its formal argument against the man they have fined, but I have requested them.
Whether it was Zablidowsky or not, this is a big deal—the FAA has always stayed out of the hobby model aircraft industry, leaving any sort of legal enforcement up to local police. Even when model aircraft have killed—last October, an RC helicopter hit and killed its operator in Brooklyn—the FAA has refrained from investigating.
“The notion that the FAA is going to come after hobbyists, even reckless ones, is disruptive to the entire hobby,” Brendan Schulman, a drone lawyer in New York City, told me. “Proposing a penalty against a noncommercial entity is a big deal. If they’ve decided that [their rules] applies to everyone, it’s a complete departure from 50 years of non regulation, including fatal accidents.”
And, to be clear, Zablidowsky was certainly reckless. The video above shows him flying what appears to be a DJI Phantom, which is the most commonly flown hobbyist drone. It’s pretty obvious he doesn’t know what he’s doing, as he flies the drone from a balcony and, within a minute or two, runs into a skyscraper. The drone somehow remains airborne before eventually hitting another one and crashing to the ground.
The FAA spokesperson would not tell me under what statute they’re trying to go after the man, but it’s likely that they’ll try to fine him with reckless flying—a statute they lost under earlier this year, when they tried to fine Raphael Pirker, a commercial drone operator, with a similar charge. In that case, a federal judge ruled that Pirker’s drone was not an “aircraft,” so it’s hard to see why the FAA is trying again, with even less legal footing this time.
“It sure doesn’t seem like navigable airspace,” Schulman said of the area Zablidowsky’s drone was flying in.
One group who could be very concerned about the FAA levying any sort of fine against hobbyists is the Academy of Model Aeronautics—a decades-old unmanned aircraft hobby group that has had a cautious alliance with the FAA.
Rich Hanson, the group’s director of government and regulatory affairs, told me that the FAA could have cause for fining Zablidowsky if they can prove that what he was doing is careless and reckless, which means he was “willful and wonton” in his actions.
“I don’t think you can prove this is willful and wanton. He bought this thing because he thought it’d be fun to fly off his balcony. He might have been unwise in what he did, but I don’t think it’s negligent and willfully careless,” Hanson said. “If they file this, our position would be disappointment that this particular regulation was used for an action we don’t believe goes above the threshold. We have no problem with the FAA dealing with issues of safety for endanger people, but we don’t want them to use it frivolously. I won’t say this is frivolous, but I don’t think it meets the bar as far as we’re concerned.”
Given how the court ruled in the Pirker case, it’s hard to see the FAA winning if the man files a legal challenge. But if they do, the relative safety that model aircraft hobbyists have operated with for decades will become a thing of the past.