Decision Yesterday Deals Blow to FAA Prohibition on the Use of Commercial Drones

by Holland & Knight LLP
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  • In a setback to the FAA's ban on the unlicensed use of commercial drones, a federal administrative law judge has ruled that the FAA could not fine a Virginia man who used a model aircraft to take photographs and film for money.
  • In this case – which could be appealed to the NTSB and then a federal appeals court – the judge wrote that the FAA policy prohibiting the commercial use of unmanned aerial vehicles, or drones, is invalid. 

A federal administrative law judge yesterday held that the Federal Aviation Administration (FAA) could not fine a Virginia man who used a model aircraft to take photographs and film for money. The judge also wrote that the FAA policy prohibiting the commercial use of unmanned aerial vehicles, or drones, is invalid. 

The decision, which can be appealed to the National Transportation Safety Board (NTSB), and then to a federal appeals court, is a setback to the FAA's ban on the unlicensed use of commercial drones.

Background

Rafael Pirker, a photographer, appealed a $10,000 fine the FAA imposed against him for operating a drone over the University of Virginia for money in October 2011. Pirker flew the drone near university buildings, through a tunnel and around people, taking the aerial photographs and film for marketing purposes. Pirker used a Zephyr II RiteWingRC electric flying wing aircraft, considered a model plane.

Model aircraft for recreational use, and commercial drones, are dealt with differently under FAA guidelines.

The Ruling

In dismissing Pirker's fine, the judge held that the FAA has never issued compulsory rules regarding model aircraft, and that guidelines for model aircraft they issued in 1991 are purely voluntary. The judge also held – and this may be significant for the current discussions in Congress and in U.S. newsrooms about drone regulation – that the FAA had not taken the steps necessary by law to ban the commercial use of unlicensed drones. The 2007 policy issued by the FAA on commercial drone use, according to the judge, therefore cannot be enforced.

Implications and Next Steps

The FAA has 10 days to appeal the decision to the National Transportation Safety Board. It may appeal an adverse decision by the full NTSB Board to the appropriate U.S. Court of Appeals.  

The decision may accelerate the FAA's efforts to integrate commercial use of drones into the national airspace. In 2012, Congress in the FAA Modernization and Reform Act mandated that the agency develop new regulations by 2015. Last November, the FAA released what it calls a "roadmap" for drone integration, outlining the establishment of six test sites that will reflect a diversity of climate, geography and ground infrastructure. Just this past week, a House subcommittee held a roundtable discussion with FAA administrators and industry representatives on safety and privacy issues.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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