A ruling last week by a National Transportation Safety Board judge declared that the FAA’s ban on commercial use of aerial drones carries no weight under federal law.
The ruling comes after the FAA fined Raphael Pirker $10,000 in October 2011 for using a drone to film a commercial at the University of Virginia. (It was actually a $130 styrofoam model airplane.) Pirker’s attorney successfully argued that since the FAA has never regulated model aircraft and that its basis for making drones illegal was part of a 2007 policy notice, which carries no binding authority on the public, the FAA, therefore had no authority to fine Pirker.
The judge agreed, noting that the FAA has not issued an enforceable rule to govern model aircraft operation and, therefore, Pirker’s drone operation was not subject to the FAA’s regulation and enforcement.
While the judge shot down the FAA’s attempt to fine Pirker, he also gave the FAA clear direction on what it needs to do to make sure that photographers can’t fly drones for money without going through the FAA first.
The entire case hinged on the FAA’s interpretation of its rules concerning Unmanned Aircraft System (UAS), which are “aircraft” as defined by federal law, and “model aircraft”, which are not “aircraft” under federal law.
The FAA has interpreted its rules that a drone used for commercial purposes is an UAS and, therefore, subject to federal regulations concerning “aircraft.” Meanwhile, a drone used as a hobby is not an UAS and is not subject to federal regulations concerning “aircraft.”
The FAA had its butt handed to it by the judge and was made to look pretty stupid for trying to enforce aircraft rules on drone or “model aircraft” operators. While it may be a free-for-all now, look for the FAA to push a legally-binding rule down the pipeline soon that specifically addresses the shortcomings of its previous policy concerning photographers’ commercial use of drones.
Of course, there are plenty of people who have ignored the FAA’s interpretation of UAS rules prior to this ruling anyway. Hopefully, any future rules from the FAA concerning drone operation will come with a procedure in which to obtain authorization for commercial use – something that was impossible under the FAA’s prior “ban”.