Landmark UAV Case Appears To Be About Recklessness Rather Than Flying Commercially

January 29th, 2014

PirkervFAAYesterday Jason Koebler at Politico.com put up a particularly good summary of the state of the landmark UAV case pending before a NTSB judge in New York. Nothing new here but I thought Jason does a particularly good job of summarizing the case to date and the implications. Here are the high spots:

  • The case is about 29 year old Swiss born Raphael Pirker who was fined $10,000 by the FAA for his filming flight on University of Virginia with his 5 lb Styrofoam UAV.
  • Pirker has asked the judge to throw out the case. The case has been pending since at least September of 2013.
  • The case against Pirker hinges not on whether he was operating a drone for commercial purposes but instead on whether the FAA can prove that he was flying in a “reckless manner so as to endanger the life or property of another”. The official complaint does note that he “received compensation”.
  • The FAA has never officially regulated model airplanes or small drones. The closest it has come was an “advisory” issued in 1981 that created a set of voluntary guidelines for model aircraft.
  • In 2007 the FAA said in a policy statement that the 1981 advisory only applies to hobbyists and that it would soon release new rules for commercial UAVs.
  • In 2012 Congress pushed the FAA to have a plan for commercial UAVs no later than Sept 30,2015. Since then the FAA has missed nearly every deadline set by Congress.
  • Last month the FAA named six states —Alaska, Nevada, New York, North Dakota, Texas and Virginia. These test sites will apparently certify commercial UAVs. People are lining up to be certified.
  • FAA spokesman Les Dorr says the agency has sent cease-and-desist letters to 12 people for operating commercial drones, but Cummings, of Duke University, says she knows several who ignored the letters, kept flying and have not faced any consequences.
  • Schulman (Pirker’s Attorney) says that if his case is dismissed, it will immediately open the door for other drone operators to fly without fear of FAA prosecution, especially because a new regulation that officially bans commercial drones could take a year.

So it appears that nothing has ever happened to anyone for flying a UAV commercially.

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20 Responses to “Landmark UAV Case Appears To Be About Recklessness Rather Than Flying Commercially”

  • From experience in Oz things are a bit different. CASA , the governing body, is ramping up their UAV department by getting more rangers finding illegal users of UAVs. Up until now it is possible to get registered to fly commercially – the process though is VERY expensive and VERY laborious !! – trust me Ive just done it. Recently too they have made it even more difficult for people to get these licenses. At the moment there are only about 85 licensed people in the country and each person is heavily scrutinised.

    CASA is now trawling RE websites looking for aerial photos – if agents can’t give details of the licensed pilots who took the shots, they get done too.

    I have had a call from CASA simply for having an aerial image on my website – even though I took it, no money changed hands and I wasn’t promoting the aerial service – the image was seen to “value add” to my business. I was told to remove the image and politely informed that next time they, CASA, would not be so courteous .

    I think there needs to be tough regulations – the potential for serious injury is huge – a drone landing on a highway, into a crowded space or into a flight path. It only takes one cowboy to ruin the whole show.

    UAVs are here to stay and will only go faster, higher and for longer so the respective Govs need to work out how to safety monitor and control the air space while still making it viable for commercial operators.

    As for Trappy – he is a great guy, I have had one of his crafts and it is people like him that make those whole make the rules actually do the job we pay them to do

  • “In 2012 Congress pushed the FAA to have a plan for commercial UAVs no later than Sept 30,2015. Since then the FAA has missed nearly every deadline set by Congress.”
    Strangely, it isn’t Sept. 30, 2015 yet.

    The FAA has quite a task to sort out UAV regulations. While we RE photographers are only concerned with small craft for taking pictures from a relatively low altitude, the big money (companies that buy politicians on the wholesale market) are pushing their own agenda so they can sell their technology to government agencies such as law enforcement and even larger systems to be used in agricultural remote sensing.

    “Last month the FAA named six states —Alaska, Nevada, New York, North Dakota, Texas and Virginia. These test sites will apparently certify commercial UAVs. People are lining up to be certified.”
    I think that it’s more accurate to say that these test areas will be used to test new aircraft in flight. Certification is mostly paperwork rather than actual flight demonstration. The test areas were selected to be far away from commercial traffic lanes and routes often used by private planes. Most private planes are operated under “visual flight rules” (VFR) and pilots must be able to “see and avoid” other aircraft. UAV’s can’t see-and-avoid and can also be very difficult see at a distance. The Global Hawk’s that fly out of Edwards AFB/ NASA Dryden have to be escorted by piloted aircraft when they are in US airspace. And, that’s a government operation!

    “Schulman (Pirker’s Attorney) says that if his case is dismissed, it will immediately open the door for other drone operators to fly without fear of FAA prosecution, especially because a new regulation that officially bans commercial drones could take a year.”
    I don’t think that the FAA or other government entities are going to ignore reckless operation of UAV’s regardless of the outcome of Pirker’s case.

    “FAA spokesman Les Dorr says the agency has sent cease-and-desist letters to 12 people for operating commercial drones, but Cummings, of Duke University, says she knows several who ignored the letters, kept flying and have not faced any consequences.”
    Haven’t faced any consequences…. yet. We CAN say that the FAA has taken official notice of these 12 people. Given the level of the fine, and attorney’s fees on top, it’s a calculated risk to continue operating.

    In a previous post’s comments, there was an insurance company named that will write a policy for UAV coverage. Like all insurance companies, they didn’t have the “fine print” posted on their website. Usually, you only get a copy of the policy AFTER you have signed up. I know from experience and my reading habit that insurance companies are famous for having tons of exceptions in their policies so they can slide out of paying claims. Their best “out” is to deny coverage if the actions of the insured are determined to be illegal. Just like your auto insurance is void if you are in an accident while driving drunk, if your operation of a UAV is determined to be illegal on a federal or local level, you aren’t covered.

    I don’t believe that in the RE business we would expect to be landing a UAV on a highway, into a crowded public space or operating in the flight path of piloted aircraft but, there is always the possibility of getting tangled in power or phone/cable overhead lines or crashing onto a roof of another structure. The electric company may wish to bill the operator for removing the UAV and repairing the damage. That could run into the hundreds of dollars per hour. If the roof of building is damaged while a workman retrieves a UAV or if somebody is injured in the process, the liability exposure could be very high. I recall a AP UAV that became stuck on a public building after a gust of wind blew it off course. It was a classic domed roof government building with no access to retrieve the UAV short of hiring a large crane. I’m not sure if it eventually slid off or a less radical way was found to pull it down. What if it did fall off and land on somebody? 5-7 kgs x 20M x 9.82m/s^2 is going to hurt a lot.

  • I have said before that the greatest limiting factor in UAV use for commercial work will be the liability factor. As commercial clients become aware of the potential liability of an incident they will be increasingly wary of commissioning aerials from drones. A helicopter or fixed wing aircraft is not without risk but there are long and established conventions of operation and insurance.

    The average drone owner can be anyone from a 14 year old with mad skills to a 51 year old trying desperately to make some money on the weekends. No one (to my knowledge) has died from a newbie with a camera trying to make a buck with his or her new camera but drones actually have killed people and caused serious damage.

  • Just ran across this little article posted in our local Facebook photography club page:

    http://dronelawjournal.com/

    The bottom line there is: if there isn’t any law that prohibits it, it’s legal.

    Let’s all go run out and get drones now! So…which is the best one to get for basic real estate photography?

  • @Rich – Thanks for the dronelawjournal.com link. This an even better summary of the current drone law. As Peter Sachs points out on the front page of that site the case against Raphael Pirker when it is settled will be the ONLY case law on UAVs and as I’ve pointed out above the complaint by the FAA is NOT about “commercial use”. Peter points out that because the FAA’s complaint is only about “reckless operation” the FAA is in effect admitting in their own complaint that “commercial use” is not legally prohibited.

  • @Rich – Thanks, there are some good links on that page. I will point out that in the header, the author states very clearly that the article is personal opinion and not legal advice. Further down there is: ” Note, however, that you might incur legal fees trying to fight a “cease and desist” letter regardless of the fact that such letters are meaningless.” The legal fees might exceed the fines. Does anybody know if a defendant in a case like this will have their attorney’s fees paid?

    If a judge opines that 91-57, as amended, is an enforceable regulation, you’re sunk and can take the case to an appellate court if you have the money and inclination. All of this is also just discussion about what the FAA can and cannot do legally, it doesn’t touch on what local regulations may exist. I haven’t been keeping track of state and local news on this topic, but I have seen some postings in the past pointing to proposed legislation. Most of this is based on the “peeping tom” fear, which is absurd.

    Liability is the key issue. With hobby groups, membership in the AMA provides some liability coverage at sanctioned meets for the participants and the club. It’s the same for model rockets if you have membership in the NAR or Tripoli Rocketry Association, are launching at a sanctioned event and are acting within the safe operating code published by the associations. In a commercial setting, there is no insurance coverage. Hobby activities may also be covered under a homeowner’s insurance policy, but not if the activity is commercial in nature. Strange as it may seem, regulations are sometimes a good thing. If there are safety codes set forth in law, an insurer has something to reference in a policy as far as permitted operations. The insurance underwriter may want to further restrict certain aspects, but they don’t want to write the permitted operations manual from scratch.

    Contrary to what it may seem in my posts on this subject, I would like to see UAV’s used for RE photography. I just don’t consider it wise to tread where the ice is thin. It doesn’t take a complex search to find loads of people that state that income tax is not legal. From a purely Constitutional standpoint, that may be correct, but I certainly wouldn’t advocate that people NOT pay their taxes. It takes a lot of money to prove the government wrong.

    The best UAV for RE is the one that comes with a free attorney. Beyond that, start with the camera that you plan on using and work up from that. SLR’s are big and heavy, so it’s worth looking at smaller and lighter alternatives. I don’t recommend the GoPro’s. They have lots of mounting options, which is great for many applications, but I have never been very impressed with their output. There are much better cameras around the same price point. Flight time and stability are two keys factors. Flight time should be assessed with the payload (camera, brackets and battery). Stability is going to have so many variables that it’s best to look online for reviews written by people that are shooting video with around the same payload mass that you have. It might also make sense to budget for higher quality propellers and motors to limit vibrations. Maybe the best thing to do is find somebody who has good video and has posted their hardware list and just copy that (provided it fits in your budget). I keep writing “video” since it makes good sense to be able to shoot video and it will be the most telling test for shooting stills at slower shutter speeds. Finally, get a UAV that you can get replacement parts for. Learning to fly can often be hard on the aircraft.

  • In reading through the posts on the drone law journal I can see why the process is taking so long. As with many government operations, there is often a mandated period of time to accept submissions for or against any proposed regulations. Depending on the department of the government and the assessed impact of the regulation, the period can vary from a few months up to a year. These submission periods also get reset if there are revisions to the proposed regulation. Annoying, but it’s there to keep regulations from getting railroaded through before they’re noticed and the public has time to comment.

  • “a Friend” uses DJI S-800 EVO with Zenmuse gimbal carrying a sony NEX-7 – seems to do the trick

  • @Jon – What do you think your “friend” spent on the S-800, minus the camera? I found one dealer in California that has a complete package for $14.5K. I went for a glass of wine after reading that. I see that the core of the MR is $3K and another $1K-$1.3K for guidance and I’m sure that radios aren’t included, plus the camera mount etc etc. At that level, I don’t think that Jr. is likely to be getting one for xmas. If he does, he might not be interested in trying to earn money with it, his parents are obviously loaded. I also found a notice that DJI is going through some legal issues with a former associate and they have been presented with an injunction that prohibits them doing business with certain dealers in the US. One of the dealer links I clicked on was a 404. I wouldn’t want to commit to a platform at that cost level and find problems getting parts due to that sort of thing. It doesn’t seem to affect dealers out of the country, but it could delay getting repair parts or make them much more expensive to get in a hurry.

  • mt “friend” got lucky and found a set-up somebody bought and then decided they didn’t want here locally in sarasota.

    it came with 2 radios
    900 data link installed
    iOS installed
    extra set of blades
    8 batteries
    fatshark goggles w/ dji video transmitter and receiver setup installed

    $5000 plus tax

    you might want to call the place “he” got it from – it looked as if they had a few other setups sitting there looking for new homes

    troy built models http://www.troybuiltmodels.com

    looks like they have a brand new setup on the site for < $8K and they do a profession build for free

  • they are in a legal fuss because they tried to go around Colin Quinn or whatever his name is. They tried to sell to some dealers directly when he had a deal with them.

    I am sure it is nothing that a little money one way or the other won’t solve

  • Great post Larry.
    I think safety is of prime concern to the FAA since they are in charge of all things that fly both private and commercial, and are the prime public target for any safety issues of aircraft large and small. I foresee pilot and aircraft certification for commercial use, but also an increase in the FAA’s ability to control safety issues in both hobby and commercial flying of small unmanned aircraft. I am all for certification; I want the FAA to be able to pull an unsafe operators certificate without having to close down the business for all.
    Steve

  • SO, here’s something to think about. I’m an ATP (Airline Transport Rating) pilot and I fly as a Captain for a major airline. Naturally I can also fly for pleasure, for hire etc. Now, you are a private pilot and cannot fly for compensation or hire. I go up in my little Cessna 152 and take some aerial photos and sell them to whomever. You go up in the same Cessna and take some aerial photos of the same property and sell them to the same person. Is either of us in violation of any FAR’s??

    If you come to the conclusion the neither one of us is violating any Federal Aviation Regulations you would be correct! However, you can hire me to fly the airplane for you while you take the pictures but I cannot hire you to fly the plane while I take the pictures.

    I see the operation of the drone (Quadcopter) the same. If I’m operating it as a private person I can do what I please and take all the photos I want. If you hire me to fly the drone for you and you push the remote shutter button, then I’m probably operating that drone for commercial purposes.

    So, that’s my answer to the FAA inspector. I’m operating this as a private citizen (under the RC aircraft regulations) and can take all the photos I like. If I happen to sell them later, well how nice! As long as I’m not being paid to operate the drone I’m not engaging in any commercial operations. Like in the first example above, Mr. Private Pilot is flying the aircraft under the rules of his certificate and although he also happens to be a photographer, he is not operating a commercial operation.

    Your thoughts on this are welcome.

  • @Chet – Since you hold a commercial rating, there are things you can do that a person with a private pilot’s license can’t. I can hire you to take me up in your 152 to take pictures (if you could take the weight) and a private pilot could not. As long as you follow all the flight restrictions for altitude and such, we’re good to go. You may have to be based from a Part 139 airport if you operate a commercial service. I just found out about that and I am not familiar with it. I DO know that Mojave Air and Spaceport (MHV) is not a Part 139 airport as I was over there last week to see if there were any commercial operators on the property. I did some aerial photography for the airport and Sean Roberts from Flight Research took me up in a Jet Ranger as a favor to the airport. Dick Rutan was supposed to take me in his 152, but he forgot and went out of town (both times). I might have flown with one of the other airport directors, but he had a Beechcraft and they put the wings in the wrong place 🙂

    One might side step any commercial restrictions on UAV’s by selling photos later.. how nice, but that story wouldn’t hold up if you had a website and advertising materials that solicited customers to buy your aerial photography services. A private pilot is allowed to take his own pictures as a commercial venture, but can’t take along another photographer whether that photographer is a business partner or a third party hiring flight services. I looked in to all of that some time ago to find out what would be required to be able to offer aerial photography.

    There is always the the option of “don’t ask, don’t tell” if you happen to know somebody with a suitable plane, or a license and the ability to rent something for a couple of hours. I know a couple of people that would just love to fly me around if I gas up the plane and buy lunch. Everything would be fine and nobody the wiser unless something went wrong. We’d be back to liability issues again since an insurance company is going to try a weasel out of paying the claim and there’s me with a bag of professional photo gear and no good way to back up a claim of being buddies with the pilot for ages. Aside from that dose of doom and gloom, when I get some “extra” money, I am going to see about taking one of these people up on paying for gas and lunch in exchange for flying around and taking pictures. Not for any particular job, but just some stock shots and practice seeing good photos from the air. A trip over Death Valley might be fun.

  • I’m not an attorney, but like a lot of people here I am a pilot, I do AP from full size helicopters, planes and MR’s and I build what I consider to be the best MR’s for doing real estate AP. I am not concerned about my ability to continue with doing AP, I’m concerned at how the actions of the FAA have severely effected my MR business.

    I have said this in just about every thread regarding this topic, the reason the FAA probably has to pivot away from the commercial aspect of AP from MR’s is because they will lose, it is not against the law. The idea that anything that flies falls under the FAA’s jurisdiction is antiquated and if they lose this case will be something that a lot of people will challenge. The FAA is really painting itself into a corner.

    Just because people are smart enough to figure out ways to fly camera’s doesn’t give the FAA the right to “regulate” it. Most of the people doing this professionally are not a danger to society and don’t require a bunch of government bureaucrats, who know little to nothing about this profession to tell us how to behave.

  • @Steve Loos, they have closed down the business for all and now they want to regulate who gets to do AP commercially and who doesn’t, because you know how good the government is at developing regulations that protect its citizens rights and interests.

    I’m guessing that people who advocate for FAA regulations have never been on the other side of the table from the FAA. Lots of people also compare the role of the FAA in General Aviation with RC’s, if it wasn’t for large advocacy groups like AOPA, the EAA and others the FAA would have regulated GA out of existence long ago.

    Anyone who thinks this potential will flourish, easier to access and safer with FAA involvement must work for the FAA.

  • @ Ken. There are a few items in your post that are not totally accurate.

    First, you can advertise your AP services all you want. You are not advertising pilot services (that falls under FAR Part 135). How you shoot the photos? Who knows? Maybe you have a nice little R22 in the back room. Just don’t advertise that you fly drones for hire!

    Next is you riding with your buddy in his 152 and sharing expenses. Part 91 of the regulations allows private pilots to share expenses of a flight (gas etc) but not charge for the flight. So you and your buddy split the gas, go up and take AP and have a nice day! No regulations have been violated and his insurance policy would be in full force and effect.

    I’m not that familiar with FAE Part 139 other than they designate airports for scheduled air carrier service. A Class IV airport cannot serve scheduled large or small air carrier aircraft. None of the types of business for shooting AP falls under these regs. They are not scheduled air service (read, airline). I cannot deviate to a Class IV airport for bad weather on a normal flight unless I declare an emergency. You can ignore Part 139, has no bearing on this topic

    Lastly, I an not suggest side stepping the regulations at all! I am saying that the regulations really don’t address shooting aerial photos directly other than the safety of clearance from people or objects; they address operating an aircraft for hire or compensation. The difference might be subtle, but it’s a huge difference.

    PS, I’m going to start offering AP services. My ad photo will be me in my airline uniform holding a camera and a drone. Let the FAA come after me 🙂

  • PSS.. A a follow up, I hold an ATP rating (that’s higher than a standard Commercial pilots certificate) and also a I’m a certificated Flight Instructor with a single engine, multi engine and instrument rating. I can also instruct in air transport services under my ATP certificate. Not that any of this helps when dealing with the FAA. Just remember the FAA motto, “We are not happy until you are not happy”!

  • @Chet – You are correct. I didn’t write clearly enough. From what I was told and not from reading the official latin translation, Part 139 also covers chartered service. The only reason I mentioned it is when I asked if there were any companies that I could hire to take me up for some AP, I was told that because the airport does not have some sort of certification related to Part 139, charter service companies were not allowed to operate from the airport. It might be a different Part. The person I was talking to is a “business” person and I don’t think all that familiar with FAA regs and flight ops. All she may know is that commercial operators cannot work from the airport so she shouldn’t rent them space unless they sign a contract where they acknowledge that they won’t.

    I didn’t think that splitting expenses, or rather it being me paying for all of the fuel, would be a problem even if I planned to sell the photography at some time in the future. It would be nearly impossible for me to offer AP services under this arrangement as I would be dictating the schedule rather than the pilot. I much prefer to pay somebody for their services since it is more likely that they will follow through. I would anger RE agents if I booked AP and couldn’t deliver.

    I’d like to advertise AP services (at a fat profit), but I don’t want to stick my neck out by operating a drone so I am looking for an commercial company with the right sort of aircraft that I can contract flight time from. I haven’t had inquiries about AP yet, but I’d like to have done my homework and have an idea about costs when they do.

    I’ve had good experiences with the FAA/AST when I was working in aerospace. I worked very closely with several people on the west coast and in DC to develop regulations regarding reusable rocket permitting, licensing and operations. I was also responsible within the company I was working for as the safety officer to make sure we were in compliance. Maybe I had a better relationship due to the AST office being new and needing assistance understanding the industry where the side of the FAA that works in the traditional area of aircraft operations is a bit more curmudgeonly and set in it’s little ways. I have had to work through “because we’ve always done it that way” in a bunch of situations and it always drives me nuts when nobody can articulate “why”.

    @Steve – You make a good point about the ability of the FAA to revoke somebody’s license rather than severely clamping down or banning the entire industry. The same sort of argument would apply at a local level. If an operator was flying in an unsafe manner, a city could revoke their permit to fly within city limits. This gives a mechanism to weed out the bad apples without having to entirely ban the practice as would be the case if anarchy reigned, as some suggest.

  • @Ken, and really just to clear things up re: Part 139. We have an operator in GA that flies DC3’s out of a grass field. The key word to that FAR is scheduled! You can have all kinds of business of any airport you want, AP, flight instruction, banner towing, you name it. So that person is typical of many; passing along bad info to people who don’t know better.

    But back to the topic…drones and aerial photos. 🙂

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