United States: The Federal Aviation Administration Appeals Most Recent Drone Ruling

Charles Tobin is a Partner in our Washington, D.C. office

The Federal Aviation Administration (FAA) has appealed this month's ruling by an administrative law judge striking down a fine against paid photographer who had strapped cameras to a model airplane and photographed the University of Virginia.

The case, now pending before the National Transportation and Safety Board (NTSB), could alter the flight path of the current development of regulations and laws that will affect newsrooms' abilities to use drones to gather news.

On March 6, 2014, the NTSB administrative law judge rebuked the $10,000 fine issued to Raphael Pirker. The photographer received the fine in 2011 for operating a cameras-equipped Zephyr II RiteWingRC electric flying wing model aircraft.

The FAA treats model aircraft -- defined as devices flown purely for recreation and hobby -- from commercial drones. The FAA does not regulate flights of model aircraft flown below 400 feet and a sufficient distance from populated areas and full-scale aircraft. Instead, in 1991, the FAA in conjunction with the model aircraft hobbyists' association, issued guidelines for their use.

By contrast, under a 1997 published policy, commercial drones -- currently defined as any pilotless aircraft that is flown for compensation -- are ostensibly unlawful unless the FAA grants a special license. To date, the FAA has only granted one such license, to energy company ConocoPhillips for use only in the Artctic regions. Last year, the FAA banned experimental journalism classes at the University of Nebraska and the University of Missouri from operating drones without FAA licenses.

In the case decided this month, the NTSB administrative law judge dismissed the fine against Pirker, who flew his drone near University of Virginia buildings, through a tunnel and around people, taking the aerial photographs and film for marketing purposes. In dismissing Pirker's fine, the judge noted that the FAA has never issued compulsory rules regarding model aircraft, and that guidelines for model aircraft they issued in 1991 are purely voluntary.

In another significant aspect of the decision for newsrooms, the judge also held that the FAA's policy prohibiting the use of commercial drones was invalid. The 2007 policy, according to the ruling, had not been issued within the proper timeframe following publication in the Federal Register. As a result, the judge held, it could not be enforced against Pirker.

The day after the ruling, the FAA issued a press release announcing the appeal. It said, "The agency 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 appeal stays the ruling. This leaves the enforceability of the commercial-drone ban -- at least for the moment -- up in the air.

But the administrative law judge's 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.

So far, however, the FAA is doing its best to duck the privacy issues that will inevitably become a focus for discussion with lawmakers over journalists' use of drones. Instead, the agency's roadmap reported that "although the FAA's mission does not include developing or enforcing policies pertaining to privacy or civil liberties, the test sites' operators will be required to establish privacy policies for testing at each. The roadmap states that the record of the tests performed under those policies "will help inform the dialogue among policymakers, privacy advocates, and the industry regarding broader questions concerning the use of" UAVs in national air space.

Also this month, the House of Representatives Aviation Subcommittee held a roundtable discussion on the FAA test sites. The discussion made clear that while some members of Congress are eager for the economic benefits drone use will foster, others oppose moving forward until their concerns about privacy are satisfied.

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