Now There's No Penalty for Flying Commercial Drones

For the past six years federal regulators have banned the commercial use of unmanned aircraft while allowing drone hobbyists to fly to their hearts’ content. An administrative judge ruled this week that the Federal Aviation Administration can’t enforce this ban, which might just give the bureaucrats a kick in the pants to put more drone regulations into place by the end of the year.

The case centers on Raphael Pirker and the $10,000 fine he received for using a glider to take photos and video near the University of Virginia. The fine was based on an activity in violation of an FAA policy statement, which isn’t binding by law, so a National Transportation Safety Board judge invalidated the penalty. Some people have been ignoring the ban anyway, and it certainly seems as if they will be able to continue doing so with impunity—at least for the time being. “I think it’s a fair reading of the decision that there is no regulation concerning what people are referring to as commercial drones,” says Brendan Schulman, Pirker’s lawyer.

The FAA can still appeal, though, and said Friday that it’s reviewing the decision. An appeal could prompt a ruling on the substance of the FAA’s approach, Schulman warns, rather than its methods. It could turn out that the FAA doesn’t have any authority on flights below 400 feet.

The people itching to get their drones airborne are moving much faster than the federal government. Last month the FAA posted an exasperated response on its website to what it claims are major myths about its approach to unmanned aircraft. The agency claims authority over anything that leaves the ground and says it will publish a proposed rule for drones weighing less than 55 pounds later this year.

The rules have been in development for long enough that the FAA’s website also includes a section combating suggestions that it has been lagging on this task. “Developing all the rules and standards we need is a very complex task,” it says, “and we want to make sure we get it right the first time.” Until then, “there are no shades of gray in FAA regulations” concerning commercial drone use. “Anyone who wants to fly an aircraft—manned or unmanned—in U.S. airspace needs some level of FAA approval.”

At the very least, Thursday’s decision puts the lie to that statement. Michael Toscano of the Association for Unmanned Vehicle Systems International says the FAA could respond with an emergency order grounding commercial use of drones while it figures things out. But it’s hard to describe what’s going on as an emergency, says Schulman, given that the exact same devices can be operated with no restrictions, so long as the operators are doing it for fun rather than profit.

This week would probably be a great time to schedule that drone photo shoot. And if the FAA really thinks that such activities are a threat to public safety, it’s going to have to move much more quickly than it has in the past to regulate them. Toscano says he worries that the ruling is being interpreted as a blank check for drone operators.

“I think this is going to force the FAA to do something in a much more expeditious manner, because of what is perceived to be open skies,” he says.

Update: The Federal Aviation Administration has said it will appeal the decision by the National Transportation Safety Board judge, saying it “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.” The agency’s appeal, it says, “has the effect of staying the decision until the board rules.” 

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