Well before Amazon.com
introduced the idea of commercial drone deliveries to the public
imagination, U.S. regulators were telling people flying these unmanned
devices to ground their gadgets and to file for a permit.
The Federal Aviation
Administration has issued a dozen orders to halt the operation of what
are technically called unmanned aircraft systems (or UAS) for commercial
pursuits, including those performed by aerial photographers,
videographers and journalism schools.
And while no one disputes
the FAA's role in regulating the national airspace, some legal experts
question whether the agency has authority over the use of private
commercial drones that operate below 400 feet and away from airports.
Brendan Schulman, an
attorney at Kramer Levin Naftalis & Frankel, says that no U.S.
regulation specifically addresses commercial drone use and that the
agency has merely stated the commercial drone ban as federal policy -
one not subject to a prior rule-making process.
"I think it's doubtful,
legally speaking, that the FAA was ever given jurisdiction over that
airspace" under 500 feet, says Schulman, himself a private-drone
enthusiast. "That's not where you would find people flying in
airplanes."
Nonetheless, the agency
has rules about drones, issues permits for their use and levies fines on
people it deems bad actors. In July, the FAA heralded its approval of
user certificates for two commercial drones weighing less than 55
pounds.
Rules for small drones
Both were planned for
energy exploration in the Arctic, and the agency was quick to note that
it viewed the approval as an initial step to integrating commercial
drones into the U.S. airspace.
Many drone enthusiasts
are hoping the agency will follow through with rules in 2014 for broader
use of these smaller drones - the kind that journalism professors,
farmers and, eventually, Amazon all want to exploit for different tasks.
The real estate industry,
in particular, has taken a special shine to drones for their ability to
shoot alluring video of tony properties and entice potential buyers.
As of now, the FAA is also playing the role of enforcer.
"I don't know if you've
ever gotten a certified letter from the federal government, but it's an
exhilarating experience," says Matt Waite, a journalism professor at the
University of Nebraska-Lincoln's Drone Journalism Lab, which received a
cease notice in July.
The professors there have
been training future journalists to report stories using drones fitted
with cameras. Waite says the drone lab "wrongly believed that we could
fly under hobbyist rules because we weren't doing any research and
development into drones, and there was no commercial interest in what we
were doing."
Schulman's law firm
launched an unmanned aircraft systems practice on Dec. 18. One of that
group's first cases is the $10,000 penalty assessed by the FAA on
Raphael Pirker, a video-drone photographer, for an October 2011 drone
flight at the University of Virginia.
The school's public
relations firm had hired Pirker to shoot the footage, which the FAA
contends shows Pirker operating a drone "in a careless or reckless
manner so as to endanger the life or property of another."
Schulman has filed a
motion to dismiss the penalty, which is pending before an administrative
law judge at the National Transportation Safety Board.
"I think the FAA is
viewing this technology as the same thing as an airplane, except without
the pilot, and their view is we have to replace the pilot with
something else," says Schulman.
Distinct approaches
Schulman contrasts the
FAA's slow, cautious approach to commercial drones with the Internet,
another government-funded entity that burst into worldwide popularity
long before any rules or regulations governed its commercial use.
"The answer wasn't to ban the Internet until the commercial rules were implemented," he says.
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