Why Commercial Drones Are Stuck In Regulatory Limbo

After the Federal Aviation Administration tried to levy a $10,000 fine against a drone operator, an administrative law judge with the National Transportation Safety Board on Thursday overruled that fine, saying no law currently bans the commercial use of drones. 

Furthermore, this same judge—Judge Patrick G. Geraghty—ruled the FAA lacked any clear authority to regulate the use of commercial drones, and that the administration’s previous policy notices, which were used as a basis for the ban, were not enforceable because they hadn’t been written as part of a formal rulemaking process.

The plaintiff of Pirker v. Huerta, the federal case in question, is Swiss drone operator Raphael Pirker, whom the FAA fined $10,000 for recklessly operating a drone while filming a commercial for the University of Virginia’s medical school. He is the first person whom the FAA has ever fined for this violation—and, after this ruling, possibly the last.

Can The FAA Slow Down Drones?

Commercial drones are allowed in international airspace all over the world. They’re used for delivery purposes, crop surveying and maintenance, and search and rescue, among other reasons.

But so far in the United States, the FAA has banned commercial drones until it can come up with a reasonable plan to regulate them, something it has promised to do by September 2015. 

For now, the ruling in Pirker v. Huerta appears to allow commercial drone operators to literally fly over the administration’s head. Farmers, photographers, and entrepreneurs may be able to occupy the airspace under 400 feet as they see fit, opening the skies to groundbreaking aerial endeavors like Amazon Prime Air. 

However, while this ruling may look like a win for commercial drone operators, it instead complicates the FAA’s goal to create clear policies concerning the use of commercial drones.

For one, it forces the administration to make a legal distinction between model aircrafts and unmanned aerial vehicles, both of which are currently referred to as “drones.” (Pirker was legally decided to be operating the former). Debating these distinctions may make the FAA’s policies for regulation take even longer to complete.

While the judge ruled the FAA lacks clear authority to regulate commercial drones, nobody disagrees that the FAA does have the authority to come up with rules for how U.S. airspace is monitored and occupied. Therefore, the FAA still needs to come up with safety regulations to keep drones out of protected airspace or the paths of planes. 

But as the FAA’s regulatory proceedings drag on, its policies are clearly eroding as more and more innovative companies find new ways to use drones. The Wolf of Wall Street was recently filmed with the help of drones, and a video of a Minnesota brewing company delivering beer to ice fishermen by drone has gone viral. (The FAA, of course, blacklisted the company.)

After Thursday’s ruling, the administration is considering issuing waivers on a case-by-case basis, at least until formal policies are established. In other words, this could take awhile.

Photo by Michael Khor

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