A Texas group that searches for missing people is fighting a Federal Aviation Administration order to stop using drones for its searches, adding a new challenge to the agency's authority to prohibit drones in the U.S.
The drone industry is challenging the FAA's legal authority to regulate drones. Gene Robinson, right, launches a drone as Jacob Elson handles the controls. Mr. Robinson is a volunteer drone pilot for Texas EquusSearch. RP Flight Systems
The group, Texas EquuSearch, has been using small drones, or unmanned aircraft, since 2006 to map search areas and conduct searches itself. In February, the FAA in an email ordered the group to stop immediately.
Texas EquuSearch last month responded with a letter to the FAA asserting the agency has no legal authority to prohibit drone use and threatening to take legal action if the agency didn't rescind its order in 30 days.
The spat could further emboldenentrepreneurs and companies that are growing restless with the FAA's pace in setting rules for unmanned aircraft.
The FAA effectively bans commercial use of drones in the continental U.S., and has been sending cease-and-desist letters to companies and individuals it suspects are violating that policy, including aerial photographers, journalism professors and tornado researchers, according to the letters, which were obtained by The Wall Street Journal.
The FAA says it must limit the use of drones to preserve the safety of the national airspace, at least until it finalizes rules for small drones in the U.S., which isn't expected until late 2015 at the earliest.
But the drone industry and its advocates are challenging the agency's legal authority to regulate drones at all. Last month, they won a significant victory when a federal administrative-law judge ruled that commercial drones are, in effect, already legal in the U.S.
Tim Miller, who founded Texas EquuSearch after his daughter was abducted in 2000, said drones "save a tremendous amount of time" in mapping search areas for missing-person searches, "and we know in the very beginning that time is very, very important." In about a dozen cases, drones have directly "located bodies we never would have found," he said.
In 2012, for instance, Texas EquuSearch brought in its volunteer drone pilot Gene Robinson and his 4-pound drone as authorities were wrapping up a dayslong search for a 2-year-old boy in southwest Texas. Within hours, the drone spotted a red shirt in a swampy area that led to the discovery of the boy's body.
The February email to Texas EquuSearch from Alvin Brunner, an FAA aviation safety inspector, said: "I understand the pressure to get [drones] integrated into the [national airspace] is mounting, but it must not be at the sacrifice of what is right or safe."
The group halted its use of drones in response. But it hired Brendan Schulman, a New York lawyer and drone enthusiast, to challenge the order. "There is no basis whatsoever, in law, in policy, or in common sense, to prohibit the operation of a model aircraft for volunteer search and rescue activities," Mr. Schulman wrote in his March 17 letter to the FAA.
Texas EquuSearch plans to sue the FAA in federal court if the agency doesn't rescind its order, he said in an interview.
The FAA said it must authorize anyone who wants to operate a drone in the U.S.—unless it is for recreation—and that Texas EquuSearch should obtain "emergency certificates of authorization" from the agency for its missions. The FAA grants those emergency authorizations only to police departments, public universities, or other public entities that already hold certificates for nonemergency use.
The FAA said Texas EquuSearch should try to find one of the more than 500 eligible certificate holders to sponsor its searches, such as a law-enforcement agency involved in a search that also holds an FAA authorization for drone use. It said it issued an emergency authorization within hours last year to the California National Guard to monitor the Rim Fire in the Sierra Nevada.
The agency said it planned to respond to Texas EquuSearch's letter.
Mr. Schulman also represented the man who successfully challenged the FAA's first fine for operating a drone. The Austrian videographer was hit with a $10,000 penalty for allegedly operating a drone recklessly while filming in Virginia.
Last month, administrative law judge Patrick Geraghty with the National Transportation Safety Board overturned the fine, ruling that the FAA has issued nonbinding safety guidelines and policy notices for such aircraft but "no enforceable FAA rule."
Mr. Geraghty deemed commercial drones to be the same legally as model aircraft, which he wrote aren't considered aircraft under federal law—in part because the FAA itself historically hasn't required model aircraft to comply with its rules for manned aircraft. If the FAA's argument that all types of flying devices are aircraft, the judge wrote, then the agency should also regulate "paper aircraft, or a toy balsa wood glider."
The FAA has appealed to the full boardand said the ruling by the administrative law judge is stayed until the NTSB's full board rules. The agency has said: "Anyone who wants to fly an aircraft—manned or unmanned—in U.S. airspace needs some level of authorization from the FAA."
Mr. Geraghty's ruling has helped fuel the ambitions of some drone entrepreneurs.
Steve Klindworth, chief executive of drone retailer UAV Direct, said sales have surged more than 25% to about $10,000 a day since the ruling. Dozens of people, including photographers, real-estate agents and roof inspectors, have called to inquire about drones under the perception that they are now legal for commercial use. "They're emboldened and we have to tell them to use caution," he said.
FlowerDeliveryExpress.com said the FAA told it to stop testing the delivery of flowers by drone in February. The company, based in Commerce Township, Mich., said it resumed testing after the ruling but then halted the program again after the FAA said the ruling was stayed.
"It's more than a little confusing," said CEO Wesley Berry. "Honest to God, if the FAA was around when the Wright Brothers started, there'd be no flight whatsoever."