Update 3/7: The FAA has appealed.
From Motherboard:
For the moment, commercial drones are, unequivocally, legal in American skies after a federal judge has ruled that the Federal Aviation Administration has not made any legally binding rules against it.
The judge dismissed the FAA’s case against Raphael Pirker, the first (and only) person the agency has tried to fine for flying a drone commercially. The agency has repeatedly claimed that flying a drone for commercial purposes is illegal and has said that there’s “no gray area” in the law. The latter now appears to be true, but it hasn’t gone the way the FAA would have hoped. Patrick Geraghty, a judge with the National Transportation Safety Board, ruled that there are no laws against flying a drone commercially.
The FAA attempted to fine the 29-year-old Pirker $10,000 after he used a drone to film a commercial at the University of Virginia. Pirker and his lawyer, Brendan Schulman, fought the case, saying that the FAA has never regulated model aircraft and that it’s entire basis for making them “illegal,” a 2007 policy notice, was not legally binding. The FAA has never undertaken the required public notice necessary to make an official regulation.
Geraghty agreed: The FAA “has not issued an enforceable Federal Acquisition Regulation regulatory rule governing model aircraft operation; has historically exempted model aircraft from the statutory FAR definitions of ‘aircraft’ by relegating model aircraft operations to voluntary compliance with the guidance expressed in [the 2007 policy notice], Respondent’s model aircraft operation was not subject to FAR regulation and enforcement.”
Comments
I had wondered what effect the stay would have, but not having a legal background, I assumed I had missed something, but I guess it's the FAA who just don't get it.
I'm relieved to notice some freedom spirits still prevail in the US, observing too many times how bureaucracies behave like worst case dictators against the civil society.
Congrats! And Profit now from your cleared entrepreunarial skies!
The FAA trumpets about their appeal staying the decision, but a stay is completely meaningless here. This isn't like the gay-marriage battle in California, where first there was a clear law prohibiting it, then a court ruled that law was unconstitutional, but that decision was stayed pending appeal so gay marriages still couldn't take place while the appeal was pending.
In this case, there was no rule to begin with, and the judge merely affirmed that no rule existed. Staying that decision does not magically create a rule where there was none before. So commercial UAS remain legal, whether the decision is stayed or not.
Upto 2.2lbs was banded about as the lower limit years ago. Not sure where it sits at the minute.
Patrick, Gene and Gus talks to Trappys lawyer yesterday on our sUAS News podcast http://www.blogtalkradio.com/suasnews/2014/03/07/saddle-up
Yesterday was intense for folks reaching out to us.
They'll fail on their appeal too ... And their attorneys must know it. Their appeal is just an act of face saving, as if they didn't know all along that what they were doing was just plain beyond their power ... Sort of buying time trying to appear competent, until they finally get their act together and come up with lawful regulations ... They are far behind ...
Counter sue the FAA now, for their *illegal* cease and desist letters and business losses ...
In the old legal system the FAA used to operate in, their "guidlines" were routinely enforced as if they were regulation. The legal aspects of enforcement have changed in the last few years to take some of the power away from the FAA and the guilty as charged prove your innocent, almost what the normal legal system of innocent until proven guilty norm. I would guess there is a possibility it is quicker and easier for the FAA to get a bill through congress with the "safety card," then go through the proposed, comment, change, etc rule making process. That process could take years, and they could get a quick knee jerk reaction bill passed in short order! Makes me wonder if they knew this would happen and are going to use this case to show congress they need more authority or a new law to close the loophole faster.
An appeal of a negative decision of the FAA doesn't actually have the impact of simply returning things to the status quo prior to the decision.
What has happened is that Trappy's case was heard and he was found not at fault.
From now until the FAA gets it's "second" day in court, the current status is that the FAA did in fact NOT have the authority to do what it did.
The appeal can reverse that and given the politics now in play that is entirely likely, but for the time being, the now existing precedent is that the FAA was incorrect in its "prosecution" of this case.
I am sure that the FAA is hoping that it's appeal will have a calming effect on people wishing to go out there and undertake commercial use of their "model" airplanes, but at this time the legal precedent at the moment is that the FAA does not currently have the legal right to make that distinction.
I do not expect this situation to persist, at some point in the not too distant future, the FAA, Congress and whoever else is required to do so, will, in fact put in place legally enforceable regulations which will cover this situation.
For the time being however, the gray area that the FAA was claiming doesn't exist, truly doesn't exist, it's just the opposite of the way the FAA thought it didn't exist.
The judges findings were unambiguous and the singel most significant finding can be summed up as:
Trappy was flying a "model" rc airplane.
Congress in its modernization act bill required the FAA to not regulate "model" airplanes.
No mention was made of commercial or non-commercial use.
There were also other aspects of the case such as the FAA reinterpreting their own "voluntary guidelines" advisory regarding model aircraft usage as mandatory without any supporting documentation or authority.
As it stands, since Congress actually legislated this, for the FAA to actually get the authority it needs to be able to regulate this it actually looks like they will have to get a bill through Congress that specifically and narrowly addresses the definition of model aircraft as well as the handling of commercial and non-commercial uses (and a very inclusive definition of what constitutes commercial and non-commercial use.)
If they have any brains the FAA will seek to exclude some weight class entirely probably something between 2 and 10 pounds, because enforcement in any aspect is going to be utterly impossible in the long run.
Of course, from the actions leading up to this, brains do not appear to be much in evidence.
A very similar ruling happened after the ValueJet crash. They went after a contract maintenance facility and employee for putting the O2 generators in the wrong packaging and shipping them on the aircraft. The FAA lost initially because there was not a regulation in place to enforce designed for 3rd party maintenance. It was a new practice that the regulations had not caught up with. But the after the rules were implemented were allowed to go back and fine the company for their mistakes.
If they get their stay they win. The status quo would stay until the rules are made most likely. But part of the ruling stated that it one reason for dismissal was becuase they had historically chosed not to regulate that size of aircraft. It mentioned nothing about their regulatory authority over them, just that in this case they had no regulation to enforce a penalty for. So it would seem the judge agreed regulated them was within their authority, just that before they decide to enforce it they need to implement the regulations. Hopefully this wont backfire on the small UAS users in an overburden of regulation designed to stamp out the percieved reckless and rule breaking attitude of small UAS users. I am not saying that we are a community like that, just that the FAA may percieve us to be that way.
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