Drone Wars Rage in Court

Government will likely appeal court ban on commercial drone fines as regulation moves slowly.

An unmanned Predator drone flies over Kandahar Airfield in southern Afghanistan on a moonlit night. President Barack Obama's decision to use Predators in Libya widened what had become very limited U.S. participation in the air war.

Experts say the U.S. government is likely to appeal a ban on commercial drone use.

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Updated on 3/7/14 at 4:35 p.m.

The Federal Aviation Administration on Thursday appealed the decision by Judge Patrick Geraghty to the full National Transportation Safety Board, "which has the effect of staying the decision until the board rules," according to a statement from the agency sent by FAA spokeswoman Laura Brown.

"The agency is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground,” the statement said.


A federal judge’s ruling that the Federal Aviation Administration cannot ban commercial drones from U.S. skies will likely encourage lobbying by businesses eager to use unmanned aircraft, but the government will likely appeal, and governing regulations will likely not be available before 2015. 

Companies are considering using unmanned aircraft systems for package delivery, like Amazon, but profitable uses also include aerial photography for entertainment events. The use of one such 5-pound camera drone was at the center of a recent case challenging the FAA’s authority to fine the unmanned vehicle’s pilot $10,000 in 2012 for flying it over the University of Virginia campus, making it the first attempt to fine somebody for flying a commercial drone.

Judge Patrick Geraghty of the National Transportation Safety Board, which decides appeals actions for the FAA, dismissed the fine on Thursday, deciding that a 2007 policy statement from the agency banning commercial drones is not legally binding. The drone’s pilot, Raphael Pirker, and his attorney argued that his drone resembled a model plane, which the FAA has never regulated before.

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The FAA did not respond for comment.

This decision will likely be appealed by the government, and although it will not open the floodgates for the sales of commercial drones, it reflects how the FAA’s existing rules are “fuzzy at best,” says Greg Cirillo, a partner at Wiley Rein LLP with clients seeking legal advice on the unmanned aircraft business.

“The FAA would say anything that could be sucked into a passenger jet engine should be regulated as an aircraft,” Cirillo says of the argument that a small drone is like a model plane. “We are getting a lot of attention from media clients who want to be able to have a small, unmanned aircraft for photography because you otherwise need to have a helicopter or a small plane covering something, which is more dangerous and noisy.”

Congress tasked the FAA in 2012 to have draft rules for the use of commercial drones by 2015, but the agency is going to miss that deadline, said Calvin Scovel, inspector general for the Department of Transportation.

“The agency will not meet the September 2015 deadline for safe [drone] integration and it is uncertain when this will be achieved,” Scovel said during a hearing of the House Transportation and Infrastructure Subcommittee on Aviation in February.

The FAA now mandates that any aircraft flying in U.S. skies must be able to "see and avoid other aircraft," which often requires a pilot inside the aircraft and is difficult to apply to remote control devices. Drones are also complicated to regulate since they vary in size and some can fly longer than airplanes, FAA Administrator Michael Huerta said during the House hearing in February.

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“FAA estimates that we can expect 7,500 small unmanned aircraft in the [national airspace system] over the next five years, provided regulations and operational guidelines [and] policies are in place to handle them,” Huerta said. 

Comprehensive regulation might take a while, but “the FAA has expressed an interest in trying to find interim measures” that would allow smaller drones to fly at low altitude that are consistent with safety rules including line of sight, Cirillo says.

Government agencies are also developing privacy standards for the use of drones that comply with state and federal laws, but the FAA is likely not going to be involved in those debates, Cirillo says.

“The FAA is trying to remain hands off on the privacy side and leave that to other government entities,” Cirillo says. “They have always been a safety agency.”

Updated on March 7, 2014: This story has been updated with a statement from the FAA saying it will appeal the initial decision by Judge Geraghty to the full NTSB.