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March 6, 2014 at 10:45pm

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Judge rejects FAA’s drone ban: Now what?

By Matt Waite

UPDATE: The FAA is appealing. The appeal has the effect of staying the judges decision. We’re back to status quo less than 24 hours later.

A federal judge dismissed the first and only case against a small drone pilot Thursday, saying the FAA does not have regulations to govern model aircraft and the rules the agency had been using to ban commercial drones are non-binding policy, not regulation.

Judge Patrick Geraghty ruled Thursday the FAA had no authority to fine Raphael Pirker $10,000 for flying his small fixed-wing UAV around the University of Virginia campus on Oct. 17, 2011. The university was paying Pirker for publicity video at the time.

Specifically, Geraghty wrote:

  1. That none “of the definitions the FAA used for ‘aircraft’ are applicable to, or include a model aircraft within their respective definition.”
  2. That Pirker’s flight was “subject only to the FAA’s requested voluntary compliance” with rules for hobbyists, which include staying below 400 feet and within line of sight of the operator.
  3. That the policy documents the FAA relied upon for its rules were “intended for internal guidance” and “not a jurisdictional basis for asserting … enforcement authority on model aircraft operations.”
  4. That the FAA’s policy notice setting this all up is either ”non-binding” or “an invalid attempt of legislative rulemaking” that fails to comply with rules for making federal regulations.
  5. That “at the time of Respondent’s model aircraft operation … there was no enforceable FAA rule or FAR Regulation applicable to model aircraft or for classifying model aircraft as an UAS’s.”

So what now? I think it means a couple of things.

First, this appears to open a small crack for journalists to start more openly experimenting with using UAVs for news stories without fear that the FAA is going to come after them. 

Second, it’s not going to last. Do you really think the FAA is just going to throw its hands in the air and give up? They’re going to do something. My bet is emergency regulations, which will also be litigated. And we’ll still be waiting for real regulations — basically status quo. But make no mistake, the pressure just got turned up on the FAA to come up with commercial drone rules, and soon.

But let’s talk about those experiments that just opened up. This decision is not an invitation to a free-for-all. What UAV users choose to do in the coming days will determine a lot about what the future of regulation will look like. 

Put another way: Don’t do anything stupid. Bad actors make bad policy.

News organizations would be wise, in whatever window exists to fly in, to observe the voluntary restrictions that have been in place since the 1980s. Stay below 400 feet, stay miles away from airports, stay within line of sight, don’t fly over crowds of people. They’re common sense restrictions, and there’s few compelling reasons to ignore them. 

And news organizations shouldn’t expect everyone to welcome this with open arms. Police in Connecticut reported a journalist flying on his own time to the FAA and complained to his employer. I wouldn’t expect local law enforcement to be up on the latest twists and turns in administrative law, so be prepared. 

Also, many states have considered or passed laws restricting drone use. Most of those dealt with law enforcement use, but several states followed Texas’ lead and are considering laws that make it illegal to photograph private property without the consent of the landowner. This decision will no doubt encourage more legislators to consider laws that may conflict with free speech or free press values. 

This decision is important. It begins to open up opportunities for journalists with UAVs. But how much, and for how long, remains to be seen.

Notes

  1. newtechnewmedia reblogged this from dronejournalism and added:
    Here are some good thoughts from UNL professor Matt Waite on the recent NTSB ruling on commercial drone usage.
  2. dronejournalism posted this