Commercial Drones In The United States: The First Test Case

Tuesday, November 19, 2013 - 18:10

The Editor interviews Brendan M. Schulman, Special Counsel at Kramer Levin Naftalis & Frankel LLPMr. Schulman is counsel to Respondent in the matter of Administrator v. Raphael Pirker, NTSB Docket CP-217. The views expressed in this interview are his own, and not those of his firm or its clients.

Editor: You are representing Raphael Pirker against the FAA in an important test case involving civilian drone use in the United States. What is the case about, and what kind of drone is involved? 

Schulman: This is the first-ever litigation in the United States involving the operation of a civilian unmanned aircraft system (“UAS”), sometimes referred to as a “drone.” My client, Raphael Pirker, is well-known around the world for creating spectacular videos of landscapes, landmarks and urban areas using radio-control model airplanes and model helicopters.  (Readers can view some of his videos by searching on YouTube for “Team Blacksheep.”) In the action I am defending, the FAA has taken issue with his flight at the University of Virginia, where he was asked to take an aerial video for the possible use in a promotional video. The “drone” he flew was a model airplane made of styrofoam with a GoPro video camera attached to it – all weighing less than five pounds.

Editor: What is the principal claim asserted by the FAA?

Schulman: The FAA alleges that Mr. Pirker flew his model aircraft for commercial purposes, and therefore the agency considers it an “unmanned aircraft system” rather than a model airplane. The agency’s complaint goes on to say that he flew too close to buildings, vehicles, people, statues and other objects on the ground. It is pursuing a fine against him under the federal aviation regulation (“FAR”) concerning the reckless operation of an aircraft endangering life or property (FAR 91.13). 

Editor: Is a model aircraft subject to the same regulations as a passenger airplane?

Editor: In my opinion, no. In fact, the FAA had nothing to say about the operation of model airplanes for decades until 1981, when it issued advisory guidelines about safe model aircraft operation (Advisory Circular AC 91-57). In that advisory circular, the FAA asks that people fly model aircraft under 400 feet altitude, be mindful of noise-sensitive areas, test the plane before flying near spectators, and the like. Those general guidelines are expressly stated to be voluntary and have never been enforced. Nor has the FAA gotten involved in model aircraft mishaps, even when they have resulted (very rarely) in a fatality. The FAA’s focus for decades has been on people in passenger airplanes, not on model airplanes. Of course, in many instances, the application of the FARs to a model aircraft makes no sense.  For example, the regulatory minimum altitude for an aircraft is above 500 feet, but the 1981 guideline asks model aircraft operators to fly below 400 feet.  These contradictions highlight the absence of applicable regulations. 

Editor: So what is the FAA’s alleged basis for the fine against Mr. Pirker?

Schulman: It traces back to a policy change that occurred at the FAA in 2007. Around that time, the agency began to recognize that remotely piloted unmanned aircraft would be very useful for commercial purposes in the United States. The FAA needed time to develop a regulatory scheme for the larger drones that would fly in the same airspace as passenger planes, but it swept up model airplanes into the policy. The FAA’s 2007 Policy Statement for the first time made a distinction between recreational use of a model aircraft and the “business” use of a model aircraft. The former remained subject to the same voluntary guidelines from 1981, but the latter was deemed by the FAA to be prohibited.  The FAA followed up that policy notice by issuing cease-and-desist letters to people who were using radio-control hobby helicopters for aerial commercial photography (such as real estate listings). The 2007 Policy Statement also seems to be the basis for applying some or all of the existing federal aviation regulations to model aircraft, including the 91.13 reckless operation regulation. Under the 2007 policy, recreational model aircraft use is subject only to voluntary standards but a “business” user is considered to be flying a UAS – and presumably becomes subject to the FARs, unlike the hobbyists. 

Editor: Is the FAA attempting to enforce regulations that have not yet been properly issued?

Schulman: We filed a motion to dismiss the case on the basis that the 2007 Policy Statement is not enforceable and that there are no federal aviation regulations concerning the operation of a model aircraft.  Policy statements issued by federal agencies are not enforceable. To the extent the commercial ban is intended to be a mandatory regulation, the FAA is required first to undertake a notice-and-comment process pursuant to the Administrative Procedures Act. It did not do so. The agency simply issued the policy statement in 2007 and told everyone in subsequent statements to the press, at aviation conferences, in correspondence, and in FAQ documents on its website that operating a model aircraft for a business purpose is unlawful. We have argued that this so-called commercial “ban” is legally unenforceable, as is any attempted fine. There is also a jurisdictional issue; the FAA is authorized by statute to regulate “navigable airspace,” typically 500 feet and above.  The complaint against Mr. Pirker is that he was flying very low to the ground, in airspace that is not regulated by the FAA.

Editor: The FAA’s so-called ban concerns the commercial use of unmanned drones, as opposed to the recreational use of the aircraft. Do you feel that this is a useful distinction?

Schulman: It is an artificial distinction used as a proxy for safety considerations. Model aircraft for decades have been used for commercial purposes, such as to create the special effects in the Hollywood blockbuster movie The Aviator. Making this distinction now seems like a step backwards. I suppose it is consistent with how the FAA has compartmentalized the regulations concerning manned aviation. Commercial aircraft operators are held to a higher standard of care because they accept payment to carry passengers, and there is an element of public trust. We need people to have confidence in the air transportation system when they pay and get on board an airplane. I am doubtful that the same framework or policy rationale applies to lightweight commercial drones in which nobody is on board and the potential for harm to anyone is very remote. These are small machines that happen to fly or hover in the air, and at low altitudes they really have nothing to do with the safety of national air transportation, the FAA’s primary mandate. 

Editor: What are some commercial uses for drones that are valuable? 

Schulman: The commercialization of small drones will be revolutionary and overwhelmingly beneficial. The endless list of applications includes photography and cinematography, search-and-rescue, aerial mapping, disaster response, precision agriculture, wildlife monitoring, pipeline inspection, and so on. Tasks that are particularly expensive or dangerous to conduct with manned aircraft, such as crop-dusting, low-altitude cinematography and power line inspection, can be done more safely and cheaply with drone technology. (Those three tasks tragically claim the lives of pilots every year.)  Japan already uses small drone helicopters to apply pesticides to over 90 percent of its crops. Precision agriculture is expected to be one of the biggest applications in the United States. Small flying machines can use sensors to pick out the trouble spots and apply only as much pesticide as needed.  That’s not only economically beneficial, but also great for the environment. 

Editor: Aside from having the FAA’s claim dismissed, what are you hoping will come about as a result of this case? 

Schulman: I think the case will lead to greater awareness of the damaging regulatory approach that is jeopardizing America’s role in the next century of aviation. The FAA has had the issue of commercial drones on its agenda since 2007, or earlier.  Instead of supporting the commercial development of the technology by quickly permitting commercialization in lightweight, low-altitude categories, the government has for the past six years simply told everyone to stop and wait. And in our case it is pursuing a fine against someone who was flying a five-pound styrofoam plane and who did not cause any damage or injury. Most recently, it shut down two schools of journalism in the Midwest that were teaching its students how to use this technology. Having our government stand in the way of entrepreneurs, technology pioneers and educators does not strike me as being in the public interest.

Editor: How is the U.S. economy being injured by this ban? How large is the drone industry in the U.S.? Are commercial drones permitted overseas?

Schulman: One way to think about this is to imagine at the dawn of the Internet’s expansion into homes and offices that a federal agency proclaimed that commercial use was prohibited until it could figure out how to regulate all of the issues that might arise.  There would be no Amazon, no Google, no Yahoo, no Facebook – or these industry leaders would be foreign, not American, because our country would not have been first to market with its commercial innovations. In the U.S., which is historically the most entrepreneurial nation on the planet, we usually address regulatory issues once we understand how new technology will actually be used and what the problems actually are, rather than shutting down industries at the outset. With commercial drones, we seem to be taking exactly the opposite approach, holding back our domestic industries while our global competitors move forward. According to one industry estimate, the United States is losing $27.6 million in economic benefit for every day that the FAA fails to put its framework in place. The economic impact of this industry is expected to be $13.6 billion within the first three years, according to the Association for Unmanned Vehicle Systems International. Commercial use of the technology is already permitted in Australia, Canada, the United Kingdom and other countries in Europe, and that is where the commercial film crews are going, for example.

Editor: What does the future regulatory landscape look like?

Schulman: Congress last year required the FAA to integrate these technologies by 2015, but the agency is very far behind, and that goal will not be met. The FAA recently issued a “Roadmap” setting out its plans to integrate UAS into the airspace. The Roadmap suggests that larger drones will be integrated very slowly, over a decade or more. But smaller ones weighing under 55 pounds may see proposed regulations released next year.  That’s good news, but the Roadmap also suggests there may be a lot of burdensome regulation impeding the use of the technology, even in low-weight classifications and at low altitudes. That approach has the potential to stifle some really beneficial technology and may cause emerging UAS technology companies and venture capital to flee overseas.  Hopefully, through the notice and comment process, an overly burdensome regulatory approach ultimately will be avoided. 

 

Please email the interviewee at bschulman@kramerlevin.com with questions about this article.