As the FAA works on promulgating formal rules governing domestic drone use, it has sought to limit the number of drones in the sky, first by providing a mechanism for public entities and others to seek special certifications and then by issuing cease-and-desist letters to those who fly drones but are not hobbyists and have not received FAA authorization. The FAA also has stepped up its enforcement in other ways, prompting litigation and forcing the FAA to defend its authority in the absence of specific drone regulations issued after notice-and-comment rulemaking.

A Challenge To The FAA’s Drone Policies

In 2011, a well-known drone enthusiast and operator named Raphael “Trappy” Pirker was hired to obtain aerial photos and video of the University of Virginia. That autumn, Pirker flew his 4.5-pound Ritewing Zephyr powered glider through campus to snap a variety of shots. The FAA alleged that he flew the drone at extremely low altitudes, through tunnels with moving cars below, and in close proximity to railway tracks and individuals, all in violation of a regulation stating that “no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” In light of this alleged violation, the FAA levied a $10,000 civil penalty against Pirker. (The entity that had hired Pirker to operate the drone faced no fine, nor did it receive a cease-and-desist letter.)

Pirker fought the enforcement action, moving to dismiss it before an administrative law judge at the National Transportation and Safety Board (NTSB). In his motion, Pirker argued that the FAA did not have any authority to fine people operating drones because it had not issued formal rules governing their use. Although the FAA’s 2005 memorandum and 2007 policy statement stated that drone operators were subject to FAA regulation and purported to ban commercial use of drones, Pirker argued that these pronouncements were unenforceable because they had not been issued as formal rules under the Administrative Procedure Act. Thus, Pirker contended, the pronouncements could not bind him, and the fine was unenforceable.

On March 6, 2014, the NTSB administrative law judge agreed. According to the judge, if the FAA’s contention concerning the scope of its existing regulations were correct, its position “would then result in the risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the ‘operator’ to” FAA’s existing regulations. Moreover, the judge held that at the time of Pirker’s flight, “there was no enforceable FAA rule” that governed Pirker’s drone. As the judge explained, Congress enacted the FAA Modernization and Reform Act of 2012 (“FMRA”) because “there were no effective rules or regulations” in place, and that law directed the FAA to promulgate rules.

Not surprisingly, the FAA appealed the judge’s ruling almost immediately. That appeal is pending. In announcing its decision to appeal the ruling, the FAA expressed concern that the administrative law judge’s decision would impact the safety of national airspace and emphasized its view that the appeal stayed the ruling.

A Challenge To The FAA’s Cease-and-Desist Regime

Following the judge’s decision, some questioned whether the FAA has the authority to send cease-and-desist orders in the absence of enforceable regulations. Just a month later,a non-profit filed a lawsuit directly challenging the FAA’s cease-and-desist practices and its enforcement authority. Texas Equusearch, a non-profit search-and-rescue organization that uses drones to find missing persons, filed a petition for review in the United States Court of Appeals for the D.C. Circuit after receiving an e-mail from the FAA calling on it to “stop immediately” its rescue efforts because they are “illegal.” Equusearch claimed in the petition that it has no commercial purpose and asked the court to set aside the FAA’s order. In its filings, Equusearch argued that the FAA has no power to issue cease-and-desist letters in the absence of formal rules.

The D.C. Circuit dismissed Equusearch’s petition, ruling that the FAA’s email was not a formal, legally binding order. The D.C. Circuit explained that the e-mail “did not represent the consummation of the agency’s decision-making process, nor did it give rise to any legal consequences.” The court thus held that it lacked the authority to review the claim. The FAA responded to the decision by saying that it had no bearing on the agency’s authority to regulate drones, although it plainly cast doubt on whether the FAA’s cease-and-desist letters had any teeth. In any event, Equusearch quickly announced that it intended to resume using drones soon.

A Move By The FAA To Assert Its Authority

While the Texas Equusearch case was pending, and in the wake of the Pirker decision, in June the FAA released a Notice of Interpretation of the special provision for model aircraft that Congress adopted in FMRA. That provision, located in Section 336 of the Act, bars the FAA from issuing “any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft” under certain circumstances. The law also provides that “[n]othing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”

In the Notice interpreting Section 336, the FAA embraced its enforcement authority over model aircraft based on its safety mandate, stating that FMRA permits the agency to pursue enforcement action against any aircraft that endangers the safety of the national airspace system. Although FMRA prohibits the FAA from making rules for hobbyist or recreational model aircraft, the FAA noted that this section of the statute does “not apply in the case of general rules that the FAA may issue or modify that apply to all aircraft, such as rules addressing the use of airspace for safety or security reasons.” The Notice also interpreted the scope of “hobby or recreational purpose” very narrowly, excluding not only commercial operations and flights in furtherance of business, but also flights that are “incidental” to business. In doing so, the Notice clarified the FAA’s view of what is, and is not, a hobby. For example, the FAA considers “taking photographs with a model aircraft for personal use” to be a hobby or recreation, but “a person photographing a property or event and selling the photos to someone else” is not a hobby or recreation. This Notice of Interpretation has spawned thousands of comments. Many of them argue that the FAA has taken an overly restrictive view of hobbyist activity, making it difficult for organizations to experiment with the technology. Others argue that the FAA has exceeded its authority by making rules that govern model aircraft.

A Series Of Challenges To The Ban On Commercial Drone Flights

The latest round of litigation against the FAA began only a month ago. On August 22, hobbyists brought a series of lawsuits challenging the FAA’s prohibition on commercial drone flights. The lawsuits assert that the Notice of Interpretation on model aircraft is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in excess of statutory jurisdiction, authority, or limitations, and without observance of procedure required by law.” The lawsuits claim the Interpretation should be set aside. Each suit explains how the Interpretation negatively impacts a broad swath of prospective drone users, including hobbyists, research universities, and both small and large businesses. Briefing in these lawsuits is now underway, and they remain cases to watch in the run-up to the FAA’s proposed small drone rules.

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The absence of clear, formal rulemaking from the FAA has prompted a large amount of uncertainty, and that uncertainty has prompted litigation, leaving judges with the task of sorting out the contours of the FAA’s authority under the existing regulatory regime. As we will discuss tomorrow, states have moved to fill this vacuum and begun to pass legislation governing private, domestic drone use.

In the meantime, the FAA has announced that it has been working to implement provisions of Section 333 of FMRA — or “Special Rules for Certain Unmanned Aircraft Systems” — which would allow operators to apply for exemptions for commercial operations in low-risk, controlled environments. These special rules are designed to “bridge the gap” between the current state of affairs and the forthcoming small drone rules, but appear to be extremely limited in scope. Several journalists, filmmakers, and media companies have applied for exemptions. How the FAA handles their applications is worth watching and might shed some light on the future regulatory environment for using drones for newsgathering, reporting, and filmmaking.