Federal Appeal May Define FAA Authority Over Drones

from USA Today

The Federal Aviation Administration’s ability to regulate flying drones is at stake in a case before an appeals board that typically investigates transportation accidents.

The case began when the FAA fined Raphael Pirker $10,000 for flying a drone with a camera around the University of Virginia in 2011 to collect video of the campus for Lewis Communications.

But Pirker appealed. Administrative Law Judge Patrick Geraghty ruled in March that there was “no enforceable FAA rule” that applied to a model aircraft, such as the Ritewing Zephyr that Pirker was flying.

Now the FAA has appealed to the National Transportation Safety Board by arguing the judge was mistaken, and the agency has the authority to regulate all aircraft, including models. The FAA traditionally had policies allowing hobbyists to fly models lower than 400 feet, but has insisted that commercial flights such as Pirker’s aren’t allowed until comprehensive rules are approved.

Congress set a deadline of September 2015 for the rules, but the Transportation Department’s inspector general is skeptical the deadline will be met or that drones will be allowed in general airspace.

“It’s a very important decision, because I think it’s created some chaos out there because of the (judge’s) interpretation of the situation that we have no authority to regulate model aircraft,” said Peter Lynch, the FAA’s assistant chief counsel, said at a drone panel in Washington organized by law firm McKenna Long & Aldridge.

Brendan Schulman, a lawyer representing Pirker, said if the board upholds the judge’s decision, it would signal there aren’t any regulations governing commercial drones until the FAA completes comprehensive rules.

“The Pirker case remains very significant for both recreational and commercial drone operators because the main issue is whether there are any existing federal regulations that govern the operation of these devices,” Schulman said.

The NTSB hasn’t said when it will decide the case. With a vacancy, some observers say the board may wait for a fifth member to avoid the possibility of a 2-2 tie that would uphold the judge’s decision.

The case is being closely watched, because the drone industry wants to know what is allowed or prohibited. The industry is projected to grow to 100,000 jobs and $82 billion in economic activity in the next decade, once the FAA completes the rules explaining how it will regulate drones to fly safely in the same sky as airliners.

Filmmakers, farmers and inspectors of pipelines and smokestacks are all eager for the opportunity to use drones. Amazon has proposed delivering packages using drones at some point in the future.

Mark Dombroff, a partner at McKenna, said setting rules for the industry is crucial because the first midair collision with a plane could ground the drone industry indefinitely.

“It becomes the Wild West out there,” Dombroff said.

As the FAA develops its comprehensive rules, the agency is expected to propose rules governing smaller drones weighing less than 55 pounds by the end of November.

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