FAA Is Completely Confused About What Constitutes Commercial Drone Use

March 20th, 2015

UAVsFaine Greenwood over at Slate.com has a great article on the FAA’s harassment of Jayson Hanes in Tampa (that I reported last week) and Steve Girard in Portland. These two cases illustrate the confusion around what does and doesn’t constitute commercial UAV usage in the US.

The article concludes that:

It’s not at all certain that the agency has any intention of backing up these threats. As of this writing, the FAA has yet to actually prosecute anyone for commercial usage of a UAV—and some, such as Connecticut attorney Peter Sachs, argue that until the FAA’s proposed voluntary guidelines on UAV usage become final, there are no actually enforceable laws at all.

The two cases outlined in the article are both hobbyists that the FAA has accused as operating commercially but there is not much confusion about whether shooting real estate is commercial. My general feeling is the FAA is just harassing people that are flying to try to keep flying UAVs a minimum until the guidelines become law because they realize as Peter says, “there are no actually enforceable laws.”

Update 3/21/2015: Be sure to read Craig’s awesome story below. Craig’s story confirms my gut feelings that I have on this issue. Thanks Craig for passing it along.

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3 Responses to “FAA Is Completely Confused About What Constitutes Commercial Drone Use”

  • Newbie here- a word of caution is in order about drone flights. Some locations have enacted a ban on drone flights over residential areas. The FAA is not the only regulatory authority a drone pilot has to contend with- seems a few citizens are concerned about privacy and either petitioned or filed for protection from drone flights through their municipalities. Farmers and ranchers have seen their livestock being harassed, they are asking for protection from the Bureau of Land Management and the U.S. Forest Service in addition to the afore-mentioned home owners. It is a good ideal to check with law enforcement not only at the national level but with your local authorities as well.

  • I’ve been debating whether to bring this up, but feel that it really is pertinent.

    About a year ago, I was not satisfied with all of the information flying around about the legality of drone usage in the US. I decided to go straight to the source at that time, which was NTSB judge Patrick Geraghty. He was the previous judge who ruled in favor or Raphael Pirker over the FAA: (http://www.kramerlevin.com/files/upload/PirkerDecision.pdf). I was surprised when about a month later he called me back! I asked him if he’d mind my sharing what we talked about and he was fine with that.

    (the rest is paraphrased and I am NOT a lawyer, so if anything is slightly misconstrued, I apologize. The spirit of the conversation is correct):

    I told him that even after his ruling, everything was still “muddy” about whether we could fly and what power the FAA still possessed. His candor shocked me. The first words out of his mouth was: “The FAA are a bunch of bullies.”

    He went on to say that there are no current laws (at that time) concerning private or commercial drone usage whether private or commercial and that congress had jobbed the FAA with coming up with them – but they never had gotten around to it. He said it was analogous to driving through a small town and being pulled over by the police. They tell you that you were speeding. You mention that you don’t recall a speed limit sign and the officer says, “oh, we don’t have them.” Then you ask what statute the town council had passed on speed limits, and he replies, “they haven’t gotten around to doing that yet.” You finally ask, “so you are basically making up the speed limit here?” and the police officer responds. “Yes.”

    He said that he would ruled in their favor if they had a case. He did, however tell me that Pirker had flown recklessly and that he would not be surprised if the FAA won on Reckless Endangerment – which they did. If you remember, though, I don’t think they won on the legality of the flight.

    He said that the FAA have lots of lawyers on staff and that it would cost more to fight it than just stop flying. So until they got it all parsed-out, it would be wise to stop flying. Also, he said that (at that time) when the case was on appeal, the FAA could try to enforce the “rules” as they saw them.

    As a side note, I live in an area with, perhaps, the greatest number of military bases in the world. Before I self-grounded, I would contact the bases’ MP stations, if I were flying nearby, to make sure they were aware and ok with my work. I NEVER got any flak – no pun intended – from any of them. They said that as long as I didn’t fly in their airspace to “have at it” and even thanked me for being so conscientious.

  • The key comment in Craig’s post above is this:

    He said that the FAA have lots of lawyers on staff and that it would cost more to fight it than just stop flying. So until they got it all parsed-out, it would be wise to stop flying. Also, he said that (at that time) when the case was on appeal, the FAA could try to enforce the “rules” as they saw them.

    The FAA has always, since I started flying in 1969, been bullies. Many FAA actions get overturned by the NTSB. The are an agency exempt from the “innocent until proven guilty” that guides criminal law. The are exempt from “due process” as well. The reason is they are an agency, not a judicial system. NTSB Judge Geraghty is absolutely correct. SO while you may be totally ‘legal’ in the civil and criminal sense, the FAA says your in violation then the onus is on you (and the expense) to prove otherwise. SO…. do you want to fight the FAA or just wait until FAR 107 is on the books and then fly with reasonable assurances that you will not be in violation?

    That choice is still yours.

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