Friday, July 18, 2014

FAA's Informal Warnings Against Some Drones Not Binding, Court Says: Unmanned-Aircraft Advocates Say Agency Policy Hampers an Industry Ready to Take Off

The Wall Street Journal
By Jack Nicas
July 18, 2014 6:07 p.m. ET

A federal court ruled the Federal Aviation Administration's informal letters and emails ordering some drone users to stop using the devices are not legally binding, in a case brought by a Texas group challenging the agency's stance.

In April, a Texas search-and-rescue group asked the U.S. Court of Appeals for the D.C. Circuit to set aside an FAA order to stop using remotely piloted aircraft in the group's searches. On Friday, three judges in the court dismissed the challenge, saying that the FAA email at the center of the case was not a formal, legally binding order. The court said it lacked authority to review a claim in which "an agency merely expresses its view of what the law requires of a party," the decision read.

The FAA said it was reviewing the decision. In court documents, Justice Department lawyers representing the FAA had argued that the court should dismiss the challenge because the FAA email in question was simply a warning and is thus not subject to judicial review.

"The email represents the opinion of a subordinate agency employee regarding the view that the FAA would be likely to take if confronted" with unauthorized use of a drone, the lawyers said in the court documents.

Brendan Schulman, attorney for Texas EquuSearch, the search-and-rescue group, said although the court dismissed his petition, "the result is helpful. It clarifies the organization is not under any FAA directive to not use this technology."

Mr. Schulman suggested the order could complicate the FAA's efforts to enforce its drone policy. The agency has used informal letters and emails to tell drone users to halt operations. Mr. Schulman said Friday's order confirms that many of those enforcement attempts are legally just warnings.

Texas EquuSearch has used drones since 2006 to map search areas and look for missing people. The group halted its use of the devices after the FAA ordered it to stop in a February email. On Friday, Mr. Schulman said the group plans to resume using drones immediately.

The FAA prohibits the nonrecreational use of drones in the U.S. without its permission. The agency has granted limited approvals to hundreds of public entities for academic or governmental use, and to two companies for commercial use in Alaska.

Unmanned-aircraft advocates have criticized that policy as hampering an industry that's ready to take off. Many users have quietly violated those rules by flying drones for filmmaking, farming, construction and other uses.

In response, the FAA has sent some of these users emails or letters, telling them they are violating FAA policy and ordering them to stop.

Mr. Schulman leads an informal group of lawyers who say the FAA does not have the authority to effectively ban commercial drones. Indeed, Mr. Schulman recently won a case in which a National Transportation Safety Board judge overturned an FAA fine against a man for allegedly flying a drone recklessly, ruling that the devices are "model aircraft" and thus not subject to the FAA's rules on manned aircraft.

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