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Eyes in the Sky: FAA Regulation of Commercial Drone Usage

The Federal Aviation Administration was created in 1958 by legislation signed into law by President Eisenhower, largely in response to a collision between two commercial airlines above the Grand Canyon which killed over 125 people. The Act abolished the old Civil Aeronautics Administration and empowered the FAA to take action to encourage and develop an air-transportation system adapted to the present and future needs of the United States as well as the promotion of safety in air commerce. In the 55 years since the creation of the FAA, the air-transportation system of the United States has changed radically, and the FAA has only partially kept up.

Drones have been a hot topic in recent times, with much of the attention focused on military uses of unmanned aerial vehicles (UAVs) to carry out offensive strikes while keeping US lives out of the line of fire. A topic that hits closer to home, however, is commercial drone usage. It is currently illegal to operate a drone for commercial purposes without an FAA license, which is unavailable to private citizens.

As drone technology has improved and become more reliable, individuals, entrepreneurs, startups, and multinational corporations alike have strained at the leash of the FAA to capitalize on this new technological niche. ConocoPhillips uses specialized drones to carry out exploratory surveying in Alaska,  agricultural companies use drones to analyze their fields and improve crop efficiencies, one creative Dominos’ franchisee in England has begun delivering pizzas by unmanned drone, and many film companies want to use drones to capture shots that are either impossible or impractical to film with helicopters.

Agricultural companies skirt FAA regulations by offering their services to farmers for free as a marketing tool, and some film studios have begun using drones but are subject to cease-and-desist letters if discovered. Yet no overarching FAA regulations exist to open this new area of innovation, and until this past June, no individual exceptions had been granted to businesses which wished to operate specific types of aircraft. The 2012 FAA Reauthorization Act charged the FAA with developing a regulatory framework for licensing commercial drones by 2015, but hobbyists and industry groups alike doubt whether the agency will meet that deadline. One industry group estimates that for every year the FAA delays integration of commercial drones into their regulatory scheme, the national economy takes a $10 billion hit in potential growth.

The good news for innovators is that the FAA is starting to come around. Last June, the FAA certified unmanned aircraft for civilian use for the first time, authorizing a pair of small, sub-55 pound drones for limited use. Rather than opening up a wide exception for commercial drones, the FAA has thus far proceeded by giving individual drones a “Restricted Category” classification on an individual basis, permitting their operation by commercial entities but delaying the implementation of a wider regulatory framework that would truly permit innovation. To this point, the only companies which have secured FAA permission are large multinational corporations with the resources and in-house teams of legal experts to lobby for their interests. Local Dominos franchisees and undergraduate filmmakers are left out in the rain, for the time being.

That is not to say that the FAA is entirely ignoring the growing number of small businesses and individuals wishing to use UAVs in their commercial enterprises. On the basis of a 2007 policy statement (the FAA has yet to issue regulations via the notice-and-comment rulemaking process concerning commercial drone flights) outlawing the use of model aircraft for business purposes and subjecting operators to the Federal Aviation Regulations, the FAA recently took its first punitive action against a UAV operator.

Raphael Pirker is a founder of Team Black Sheep, a company specializing in producing aerial videos with Unmanned Aerial Vehicles and Remote Controlled objects. On October 11, 2011 he was filming a video on behalf of the University of Virginia when he ran afoul of FAA regulations. The FAA’s Complaint against Mr. Pirker alleged, among other things, that he operated a Ritewing Zephyr powered glider aircraft for commercial purposes, without an FAA pilot certificate, and furthermore alleged that his operation of the UAS (unmanned aircraft system) carelessly or recklessly endangered the life or property of another. As showcased in a video originally posted to YouTube (now removed by the user), Pirker flew the drone through tunnels, under a crane, through an active hospital heliport, and “buzzed” several individuals standing on the campus.

The FAA came down hard on Mr. Pirker. For a violation of Section 91.13(a) of the Federal Aviation Regulations, which state that no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another, the FAA levied a $10,000 civil penalty against Pirker in his personal capacity. Mr. Pirker, through counsel, filed a motion to dismiss this penalty, contending that the FAA’s failure to promulgate new regulations as mandated by Congress means that it has no authority to punish the operator of a model airplane.

Historically, the FAA has had a hands-off policy toward model airplanes and their operators. As highlighted by Pirker’s motion, the FAA released an Advisory Circular in 1981 detailing their governance of model aircraft.  Since then, agency policy has encouraged voluntary compliance with safety standards for model aircraft, but has left legal penalties to the operation of state tort law. Pirker argues that because there is a long-standing policy against regulating model aircraft, any attempt to do so now would be an interpretive rule change, subject to the notice-and-comment provisions of the Administrative Procedure Act. The FAA has not issued any such formal regulations, giving rise to Pirker’s motion. The apparent shift in agency policy can be explained using the three classifications of UAV found in the 2007 guidance: public aircraft, civil aircraft, and model aircraft.

In its complaint against Mr. Pirker, the FAA characterizes his aircraft as a UAV operated as a civil aircraft, not as a model aircraft. The main distinction between the two classes is that model aircraft are operated for recreational or hobby use, and civil aircraft are operated for commercial use. Thus, while Mr. Pirker has a legitimate grievance about the inefficiencies of the bureaucratic method of governance, it seems clear that his operation of the Ritewing Zephyr was commercial, and thus does not fall under the FAA guidance and long-standing practice regarding model aircraft.

Regardless of how Mr. Pirker’s case is resolved, several things are clear. The use of drones in the commercial space is an area ripe for innovation. The FAA has been dragging its heels for years now when it comes to formal regulation of commercial unmanned aerial vehicles. Until they get their act in gear and pass regulation by the notice-and-comment purpose, they will be effectively strangling economic growth and innovation and creating confusion that will surely lead to more cases like Mr. Pirker’s in the future.

About the Author

Chris Dachniwsky

Chris Dachniwsky is a Staffer for the Columbia Science and Technology Law Review. He is a 2L at Columbia Law School.
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