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Drones: 1, FAA: 0

Publication Type: 
Other Writing
Publication Date: 
March 7, 2014

Cross-posted from Forbes.

An administrative judge invalidated a fine yesterday against an individual who used a small drone for the commercial purpose of taking and selling photographs.  The decision has been heralded, rightfully, as a blow to the Federal Aviation Administration’s ability to regulate private drone use in the United States.  But the news does not necessarily mean you should resume delivering beers with your quadrocopter.  What follows is a short analysis of the decision in FAA v. Pirker and what it does, and does not, mean for drone operators.

There are a number of ways someone could challenge an FAA fine for taking photographs with a drone.  One involves the First Amendment.  Although commonly overstated, recent case law suggests that citizens have a free speech right to record matters of public interest.   Other, long-standing case law suggests that First Amendment activity receives no less protection by virtue of having a commercial motivation (although the government has a freer hand regulating “commercial speech” that merely proposes a transaction).  Thus, you could imagine a news outlet arguing that the FAA cannot fine them for filming police activity in L.A.  The trouble with the argument is that the FAA would say it is not regulating the collection of information, for reasons of censorship, but rather the flight itself, for reasons of safety.  Were a free speech challenge to succeed, however, it would severely and perhaps permanently hamper the FAA’s efforts to regulate private drone use.

The challenge Raphael Pirker mounted, through his able attorney Brendan Schulman, is different in both focus and scope.  Pirker argued that the FAA had not followed the proper procedures in attempting to regulate the type of “model aircraft” he was using to take photos.  Agencies like the FAA can only fine you if you violate a specific regulation (or an agreement you made with them).  To pass a regulation, agencies have to follow certain protocols laid out in the Administrative Procedure Act.  Pirker pointed out that while the FAA can regulate “aircraft,” it has repeatedly excluded model aircraft (or “modelers”) from that definition.  Model aircraft are subject instead to mere agency guidance, compliance with which is voluntary.  An administrative judge agreed with Pirker on this point and therefore canceled the fine the FAA had imposed against him.

So what happens now?  The FAA can, I believe, appeal this decision.  Historically courts have been very deferential to agencies interpreting their own rules, which makes the Pirker case something of an anomaly.  Even if the FAA did not appeal the decision—which strikes me as a well-reasoned one—or even lost an appeal, the agency could still come to regulate commercial use of drones by following the proper procedures of proposing a rule and publishing it for public notice and comment.  Start ups and others who are eager to use drone technology for a commercial purpose should keep a close eye on what the agency does next.

One final note: the Pirker decision applies to the narrow class of “drone” he was flying—a “Ritewing Zephyr powered air glider.”  Presumably it applies to all model aircraft.  There are suggestions here and there that the order could apply more broadly.  The judge mentions that the classification “unmanned aircraft system” does not appear in the Federal Aviation Regulations either and that the public notice the agency filed around the term was defective.  Nevertheless, I would not assume that any aircraft without a pilot is suddenly outside the FAA’s jurisdiction.

In short, the robots won a legal battle yesterday; the war looms.