Administrative Law Judge Rules Camera-Equipped Model Airplanes Are Cleared for Take-Off

by Holland & Knight LLP
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  • A ruling by an administrative law judge punches a hole through the FAA's ban on the unlicensed use of commercial drones. The decision may be significant for ongoing discussions in Congress and in Indian Country about drone regulation.
  • Model aircraft platforms, equipped with cameras, could become a valuable and cost-effective tool used by tribal governments responsible for natural resource management, disaster mitigation, and search and rescue operations.

Yesterday, a federal administrative law judge reversed a fine imposed by the Federal Aviation Administration on a Virginia man who had used a model aircraft to take photographs and film for money. The judge said the FAA policy prohibiting the commercial use of unmanned aerial vehicles, or drones, is invalid.

The decision, which the FAA is expected to appeal to the National Transportation Safety Board and then to a federal appeals court, punches a hole through the FAA's ban on the unlicensed use of commercial drones.

A Case Involving Model Aircraft

The case was brought by Rafael Pirker, a photographer who appealed a $10,000 fine the FAA imposed against him for operating a drone over the University of Virginia for money in October 2011. Mr. Pirker flew the drone near university buildings, through a tunnel and around people, taking the aerial photographs and film for marketing purposes. Mr. 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.

Implications for Indian Country

In dismissing Mr. Pirker's fine, the judge held that the FAA has never issued compulsory rules regarding model aircraft, and that guidelines for model aircraft the FAA issued in 1991 are purely voluntary. The judge also held – and this may be significant for the current discussions in Congress and in Indian Country 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.

The FAA has 10 days to appeal the decision to the NTSB. It may then appeal an adverse NTSB decision to the 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. Last week, a House subcommittee held a roundtable discussion with FAA administrators and industry representatives on safety and privacy issues.

The judge's decision, if upheld or not appealed, could have significant implications for the development of drone use by Indian tribes for commercial-like activities involving the security of persons and property and public safety in Indian Country. Relatively inexpensive model aircraft platforms, equipped with cameras, could become a valuable and cost-effective tool used by tribal governments responsible for natural resource management, disaster mitigation, and search and rescue operations.

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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