FAA scrambles to control consumer drones, but its legal case is shaky

The FAA is in a pickle. For years, the aviation regulator dragged its feet on rules for unmanned aircraft. Now the skies are filling up with a new generation of lightweight consumer drones that are proving popular with everyone from photographers to journalists to search-and-rescue teams — and the FAA doesn’t have the legal tools to deal with them.

In response, the agency has been forced to improvise. This week, for instance, it published sweeping “guidance” for model aircraft operators. Critics, however, suggest this is an attempt to paper over a problem exposed by a recent court decision: that the agency lacks real rules to deal with the drones.

A scramble to assert authority

The FAA’s current predicament is rooted in an administrative judge’s surprise ruling last fall that the agency had no authority to fine a man $10,000 for using a drone to take photographs for the University of Virginia. The decision, which is under appeal, found the FAA had wrongly relied on “policy statements” rather than real rules to justify the fine.

Now there are serious doubts as to the FAA’s power to control unmanned aircraft that operate away from airports or commercial flyways, which has led other drone advocates — including media companies and a respected search-and-rescue service — to file further court challenges.

In response, the FAA has struck back with a burst of legal activity, including a series of “myth-busting” Q&A’s and this week’s “Guidance to model aircraft operators.” The notice, which calls for public comments, sets out a lengthy list of rules, including a requirement that drones must be flown within a direct line of sight.

It also reiterates the FAA’s early insistence that any commercial drone use is forbidden: using a drone to see if crops needs water is ok “for personal enjoyment” but not for farming, and moving “a box from point to point” is fine but “delivering packages to people for a fee” is not. (This last point led media to speculate that the FAA notice was aimed at Amazon’s plans for a drone delivery service).

The FAA is touting the new notice as a helpful set of dos-and-don’ts for unmanned aircraft. The drone community, however, is outraged and is blasting the document as a sham with no basis in law.

The Parrot Bebop drone. Photo courtesy of Parrot.

The Parrot Bebop drone. Photo courtesy of Parrot.

A future law for today’s drones?

An FAA policy statement from 2007 “cannot be considered as establishing a rule or enforceable regulation” for unmanned aircraft, wrote the judge who shredded the agency’s $10,000 fine last year. In response, the FAA’s lawyers appear to have rummaged through their drawers for a new argument — and found one in the form of the “FAA Modernization and Reform Act of 2012,” a law signed by President Obama in early 2012.

That law is mostly about upgrading the nation’s air traffic control system, but it also instructs the FAA to develop rules for unmanned aircraft of all sorts. While Congress asks the agency to integrate domestic drones into the national airspace, it also created a clear carve-out under Section 336, titled “Special Rule for Model Aircraft,” which says the FAA is not to regulate certain small drones. This exception describes drones flown by hobbyists that are under 55 pounds, flown away from airports and within the operator’s direct line of sight.

The FAA has now seized on this definition as a magic bullet to address its present legal headaches. Specifically, the agency claims in the new notice that any aircraft not covered by the law’s exclusions falls under its powers.

This sounds well and good but for one thing: the definition from Congress applies to future rules created by the FAA, and the agency hasn’t passed those yet. Instead, the FAA is still plodding through the process of creating those rules, which must get sign off from the White House, and are not expected to be complete until 2015.

“The agency is saying that if you don’t fall into the exemption for future regulations, you’re under the current ones. That’s not a logical or faithful reading of the statute,” said Brendan Schulman, a lawyer who is representing drone users in several high profile cases.

Schulman, of course, has an interest in the outcome, but his position appears to be correct: despite the FAA’s huffing and puffing this week, the agency is in the same legal spot that is was in months ago when the judge in Virginia struck down its fine. It has still not made new rules, but is attempting to put a gloss on existing ones that are of questionable effect.

Meanwhile, the FAA’s new definition is already irking manufactures in the model aircraft industry.

“The FAA’s interpretation, which can only be described as a brand new rule, could rock the nation’s hobby industry as a whole,” said Ready Made RC, which makes vehicles and viewing equipment related to consumer drones, in a statement.

An FAA spokesperson said by phone this week’s guidelines are intended to help drone users understand what the law is, but said she could not discuss the legal theory behind them.

Photo by Lee/Flickr

Photo by Lee/Flickr

The FAA’s new legal and PR gambit this week is likely to raise the stakes further in an uncomfortable stand-off between the agency on one hand, and the growing ranks of people who see the drones as a valuable tool for industries such as movies, news gathering and farming.

Until last year, the agency relied on sending cease-and-desist letters to bring down drones, but that strategy looks less effective now that companies are challenging them in the courtroom.

In response, the FAA is floating its tenuous new legal theory and raising safety alarms by pointing to “incidents involving the reckless use of unmanned model aircraft near airports and involving large crowds of people.” It is also sticking to its guns of treating most drone operators as akin to plane or helicopter pilots.

While the safety concerns may be legitimate — there have also been incidents at the beach and in national parks — there is still no need for a hardcore crackdown that could stunt what is such a promising technology. A better plan would to be for the FAA to accelerate its policy of granting exemptions, or creating a simple permitting system to authorize unmanned aircraft pilots in defined low-altitude airspace (here’s a guide to that airspace).

By drawing arbitrary legal lines in the sand, the agency risks setting itself up for further embarrassment before a judge. It should instead get on with the job of writing the rules it should have finished months ago.