© 2014 The Texas Lawbook.
By Richard L. Wynne, Jr. – December 1 – In a long-awaited decision, the National Transportation Safety Board ruled on November 18th that the Federal Aviation Administration has authority under existing law to regulate the operation of unmanned aircraft systems (“UASs”), commonly referred to as “drones.”
This decision is a blow to drone advocates who are seeking to implement wide-scale drone operations in a variety of industries, contending that the FAA is proceeding much too slowly in its efforts to develop new regulations specifically directed to the commercial use of unmanned aircraft.
The NTSB ruling forecloses an argument that commercial drone use is permissible even without FAA authorization.
It is now clear that Texas energy and utility companies eyeing the technology for pipeline or power-line inspections, or commercial agriculture operators considering drones for crop inspections, will need to seek exemptions from the FAA. If the operations are restricted to remote, unpopulated areas, the FAA may grant an exemption, at least on a limited basis.
Indeed, the FAA reports that applications for exemptions have increased dramatically since late September, when it granted a limited exemption for carefully controlled use of drones in the motion-picture industry.
Because the FAA is committed to the safe integration of drones into the airspace, however, some of the early adopters of the technology are not likely to receive FAA approval, at least until the regulations are finalized.
Over the past few years, many Texas real-estate companies and commercial photographers have begun using drones to capture aerial images and video. But these operations are typically over populated areas, where the FAA has thus far been unwilling to permit commercial UAS use. With increasing news reports of near-miss encounters between manned aircraft and drones, the FAA will likely continue to oppose any commercial UAS operations over populated areas.
The NTSB ruling stems from a 2011 incident in which the FAA assessed a $10,000 fine against a commercial photographer, Raphael Pirker, for flying a small UAS above the University of Virginia campus to film a promotional video.
The FAA claimed that Pirker was operating his aircraft in an unsafe manner. Pirker challenged the FAA’s authority, and in March of this year an administrative law judge agreed, ruling that the drone was properly characterized as a “model aircraft” rather than an “aircraft” subject to existing regulations. The FAA appealed that decision to the NTSB, contending that model aircraft like Pirker’s drone are still “aircraft” and subject to the existing regulations.
Since the March decision, there have been conflicting interpretations of the law, with the ALJ ruling that small drones are not subject to existing regulations and the FAA repeatedly asserting that anything made to fly in the air is an aircraft subject to these regulations.
Those conflicting views have done nothing but frustrate businesses ready to embrace available UAS technology in a variety of industries, including the energy sector, commercial agriculture, real estate development, commercial photography, and even package-delivery services. These businesses contend that drones can perform certain tasks efficiently and effectively, but the FAA has been unwilling to allow commercial UAS operations except in very narrow circumstances on a case-by-case basis.
The NTSB’s decision clarifies the law but provides no relief from the frustrations with the FAA. In its decision, the NTSB rejected the ALJ’s distinction between “model aircraft” and “aircraft,” agreeing with the FAA that Congress had defined “aircraft” to be “any device used for flight in the air.”
Because Pirker’s drone fit that broad-but-clear definition, the NTSB ruled that the FAA could properly enforce existing regulations relating to “aircraft” for UAS operations.
The FAA has steadfastly opposed any commercial drone operations that it has not expressly authorized.
Yet Congress has directed the FAA to implement a plan to “provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.” And while the FAA claims that it is working on those regulations, to date, it has not released a proposal, even in draft form.
In the meantime, companies wanting to exploit UAS technology have a choice — ask the FAA for an exemption to the existing regulations, wait for the FAA to implement the new regulations, or use the available technology notwithstanding the FAA’s proscription of unauthorized commercial operations. Many have chosen the latter, and the FAA has been scrambling to shut down those operations. The NTSB’s decision confirming the FAA’s regulatory authority will likely only embolden the FAA in its efforts to prevent any unauthorized drone use.
Richard Wynne is a partner at Thompson & Knight LLP. A former aeronautical engineer, he practices in the areas of intellectual property and aviation law.
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