Judge Says FAA lacks Clear Authority on Commercial Drones

Posted: 3/7/2014

By JACK NICAS and ANDY PASZTOR
Wall Street Journal

Industry efforts to open US skies to drones are gaining momentum on both the legal and regulatory fronts, but the controversial issue isn't likely to be resolved soon.
A ruling by an administrative law judge on Thursday held that the FAA lacks clear-cut authority to ban the commercial use of drones in the continental US. The decision, which can be appealed to the National Transportation Safety Board as well as a federal judge, is bound to complicate the FAA's already challenging job of crafting policies and regulations to oversee the nascent industry.
Separately, escalating industry demands for action have prompted FAA officials in recent weeks to begin looking for ways to authorize expedited but limited commercial uses of small drones in US airspace.
The FAA effectively has banned the commercial use of unmanned aircraft over US airspace until it develops rules to integrate them into national airspace-a process that is expected to take until 2015 even for the smallest unmanned vehicles operating in isolated areas. More comprehensive rules covering larger models are likely to take years longer to complete.
Commercial drone use has been taking off abroad and many US companies and drone manufacturers have been frustrated with the FAA's stance.
Recently, however, the FAA's hard line on commercial drones appears to be eroding. The agency is considering case-by-case approvals or waivers for certain commercial uses for drones, including in the agriculture and film industries, before it completes broader rules for small unmanned systems, according to government and industry officials and lawyers involved in discussions.
Thursday's ruling threatens to toss a wild card into that process, and could upend the FAA's current plans. In 2012, the FAA fined a pilot $10,000 for remotely operating a roughly 5 pound drone to film the University of Virginia campus, saying he operated it recklessly. The subsequent challenge raised a host of questions about legal distinctions between model aircraft and unmanned aerial systems. Some of those unresolved questions are likely to be debated further by lawyers, federal regulators and state officials.
Administrative law judge Patrick Geraght struck down the fine, ruling in part that the FAA's de facto ban on commercial use of drones, based on a 2007 policy statement, "Cannot be considered as establishing a rule or enforceable regulation."
A spokeswoman for the FAA, which has widely used "policy statements" and "advisory circulars" over the years to enforce important aircraft safety requirements, said agency officials were reviewing the ruling.
Some lawyers and drone users have argued for months that the FAA has no statutory power to enforce its prohibition of commercial drone use. At very least, the ruling is likely to provide an immediate boost to manufacturers and would-be commercial operators seeking to introduce small unmanned aircraft flying at low altitudes.
"I view the decision as a victory for technology" said Brendan Schulman, a New York based attorney and recreational drone user. "For seven years our federal government has told business people[]that they must stop using drones for commercial purposes, and I think that's had a negative effect on this really exciting emerging high-tech industry."
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