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NTSB Judge Rules That FAA Policy Concerning RMCA Is Not Enforceable Law

In: 
Published: 07/03/2014
By: larry

PirkervFAAAccording to Politico.com: "NTSB Administrative Law Judge Patrick Geraghty ruled Thursday that the policy notices the FAA issued as a basis for the ban weren’t enforceable because they hadn’t been written as part of a formal rulemaking process."

The case of course is the case against "Trappy" (Raphael Pirker that we've been following for months.

Congratulations to Brendan Schulman Trappy's lawyer. Brendan's comment is: "This is a victory for technology, in my opinion."

According to the Politico article the FAA can appeal the decision to the DC US Court of Appeals or it could issue an emergency rule banning small drone use.

Here is Judge Geraghty's rulingHere is NBCnews.com article.

Update Mar 7, 2014: Peter Sachs interpretation of the ruling at DroneLawJournal.com (Peter is a lawyer) is:

Right now, you may legally operate a remote-controlled model aircraft in any manner you choose whether for pleasure or for profit. You are not subject to any federal aviation regulations. If you wish to make Advisory Circular 91-57 your “self-imposed law,” that’s perfectly fine and not a bad idea, but legally you are not required to do so. Use commonsense and operate with safety in mind and you should be fine.

Remember, this will change in the future. Once the FAA does promulgate regulations, as it is required to do under the FMRA of 2012, RCMA operated commercially will not fall under the hobbyist (Section 336) exception.

Update Mar 7, 2014: Oops... hold one there folks. The FAA has appealed yesterdays decision to dismiss. According to faa.gov:

The FAA is appealing the decision of an NTSB Administrative Law Judge to the full National Transportation Safety Board, which has the effect of staying the decision until the Board rules. The agency is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.

Update Mar 9, 2014:
Here is mashable.com article which has a statement from Raphael Pirker.

18 comments on “NTSB Judge Rules That FAA Policy Concerning RMCA Is Not Enforceable Law”

  1. Congratulations to the Judge who finally gave us some useful case law! Hopefully the FAA will complete its process on the pilot certification and rules for operation of RMCA for all photographic uses (commercial and public) sooner than later. And, hopefully those rules will make sense. I have no issue telling pilots they must operate safely and holding them accountable; flying through traffic and over people is not OK. One tragedy caused by an unsafe pilot hurts us all.

  2. As excited as I am about the ruling, I'm solidly in the camp of "Rules, please."
    Steve Loos nailed it. One tragedy would be one too many, and has the potential to damage the industry for a very long time. The sooner we get past the "Wild West" state of operating, the sooner we will have a solid and viable long term business tool.

    For the record, I sent up my RMCA for two shoots today. It seemed to be a great way to celebrate.
    Common sense prevailed. 150' or lower, and my clients were invited to view the FPV feed through goggles from a nice, safe distance.

    Spending more time in a Robinson R-44 than flying a multicopter, I'll be far more excited to see real progress with decent safety regs, but for now, this will do.

  3. While this ruling helps Trappy get off on the charge of reckless operation (it wasn't about flying per se, it was about not flying safely) the ruling may prompt state and local agencies to pass their own legislation more quickly as there appears there will be a long wait for federal regulations. I would rather see some well crafted requirements on the federal level than hasty and poorly conceived law making at the state a local levels.

  4. I'm confused why you think doing commercial AP needs to be regulated? Even with all of the hysteria about MR's I can't recall a single incident resulting in serious injury or death. Which means that most people flying these things are flying them safely.

    The reason this was struck down is because it was a "hasty and poorly conceived law" and the FAA didn't go through the NPRM process, if they try to issue an emergency rule banning small drone use they will have their ass handed to them.

    Also, States and local municipalities cannot regulate airspace which is why most, if not all, attempts for the states to regulate RCMA have failed.

    This is a civil liberties issue, the government does not have the authority to restrict my right to make money using MR's to make a living. It is not incumbent on me to prove that I have not broken a law, it is up to the government to prove that I have.

  5. This is great. As most have pointed out I see the good and the bad that comes with this. I agree though that I would rather see some clear defining regulations not only for commercial but even hobby use. While most of us that fly now do so in a safe manner, that will change.

    With prices falling so quickly and cheaply ( you can get a RTF quad now for under $200, add a 200-400 gopro) for a $400+ investment boom you are now an aerial photographer, heck that's cheaper then some DSLR entry setups. Just like when everyone who buys a DSLR from a box store all of a sudden becomes a "professional photographer". You will then have these quads in the hands of inexperienced pilots (just like someone getting their first DSLR and staying on auto) who think the return to home, or the orientation control will save them from all accidents, and they must be easy to fly.

    Now this "professional" goes out to fly without proper knowledge of his device. No preflight checks, this thing came out of the box everything should work right. I mean imagine someone does not check the rig before they take off like they should, only has $400 invested (not a big loss to some), a prop comes off or a motor fails. Now you have a falling 2lb+ brick falling from the air from a few hundred feet. Hit someone in the head or worse a child with that aircraft. Flying at a marathon, park, or some crowded venue when things go wrong. Which could lead to that one case, worse case scenario that leads to serious injury or even death that will set us all back years, who operate safely. Not only in regulations but also in the publics eye. Remember that 3lb UAV that fell out of the sky from several hundred feet over a crowded New York street, think if that had actually hit someone how much bigger the story would have been. Or the Groom who got hit in the head during the wedding video shoot. They joke about it but if he got hit with a prop in the eye it could have been a much serious injury.

    Prime example of someone who does not care if they crash a drone. More of this thinking will come up as the price goes down for this technology. http://newsfeed.time.com/2013/10/01/bored-rich-tumblr-founder-cant-stop-crashing-his-own-drones/

  6. That is great news, I am with Dan Milstein, some regulations good. Let's all be safe out there!! Too bad it is raining today!

  7. @Chuck - There was one well publicized death, but that one was the pilot slicing his own neck.

    There's this one - http://www.bloomberg.com/news/2014-02-14/illegal-drones-dare-faa-to-stop-filming-wolf-to-bulls.html

    There was another one where a bride and groom were injured during their rehearsal.

    I know of more, but I didn't bookmark the links. I know you are a mad anarchist with little regard for other people and believe that you should be allowed to do anything you want, but the rest of us would like to know that you'll be answerable for any mayhem in a court of law.

    You are sadly misinformed if you believe that state and local government cannot regulate any activities they believe endanger the public. Grab your lawn dart set and have a game at the local park. Set up a launch pad and fire off a few Estes rockets. See how long it takes for the police to show up.

    I'll fight like hell if I start seeing Amazon and other retailers start trying to deliver products with UAV's.

  8. @Ken, where do you get off saying "I know you are a mad anarchist with little regard for other people and believe that you should be allowed to do anything you want, but the rest of us would like to know that you’ll be answerable for any mayhem in a court of law"?

    Im as upstanding and law abiding a citizen as anyone else on this forum, I just happen to believe that the government is required to follow its own laws in the process of creating new ones and clearly the FAA did not do that in the case of commercial AP from RC's. I am not the anarchist here, the bureaucrats who threatened to fine and imprison people for breaking a law that they knew didn't exists where the ones who created a "state of disorder due to absence of authority."

    The highly publicized death was with an Align 600 helicopter and a young man practicing aerobatics and as unfortunate as that accident was it had nothing to do with commercial AP.
    Although the accident where the bride and groom were struck by a quad doing AP for their wedding was a serious lapse in judgement no one was seriously injured, the groom flipped the quad right side up and they continued filming. Do I approve of that, absolutely not but the point I made at that time was that regulations would probably not have had any effect since at the time it was believed to be against the law to shoot AP at a wedding anyway.

    I'm a pilot, I read the FAR/AIM and nowhere in it did it even mention the word "Model" so there was no way that FAA had regulated or issued any rules regarding commercial AP from model or RC aircraft. Just because I decided to stand up for my rights and speak out against what the FAA was trying to do and the incessant fear mongering online does not make me an anarchist, nor does it mean that I'm against all regulations.

    Maybe I'm not the one who is sadly misinformed, here is the ruling in its entirety: http://www.kramerlevin.com/files/upl...erDecision.pdf

  9. Our responsibility as citizens is to question, even scrutinize government and their self serving activities. Anarchy is when no government is recognized. I believe every citizen is intimately aware (in varying degrees ) of the current government. It's natural tendency is to intrude on citizens with regulations, taxes and other controlling devices that have well intentioned beginnings in almost every case. However enforcement and abuse of those devices infringes on the constitutional rights of every citizen. Even the ones we agree with infringe on rights of someone. It is up to each of us to monitor which rights we are willing to have chipped away, bent, molded and manipulated and by how much. I'm of the mind that we already have too many laws and regulations, some of which are not enforced because they are now or were then counter to the ideology of the enforcers at the time. If we don't voice our objections, whichever side we are on issues, the government will require anarchists to correct.. or attempt to correct the situation. Even anarchy ain't always bad if it's on the right side of history. Chuck and Ken's discussion proves that the debate is alive and well here, even on such an apparently mild issue. Ken wants protection and a recourse from those who are irresponsible, and Chuck resents being called an anarchist because he knows he is responsible and intends never to harm anyone with flying robots. Each has a legitimate argument and both have a potential threatening situation that could occur if one or the other were left to be out of control. But in my opinion, we all should be more self controlled, not controlled by others in the name of well intentions. Let the rare accident or inappropriate use of these devices enter the court system as test cases holding those responsible for infringements accountable. Something in rare occurrence these days. And by being self controlled we can fly freely without the threat from government and the resentful for merely operating them.

  10. […] In the Photography for Real Estate blog, Larry Lohrman, who has been following the subject ever since I’ve been reading it, reported this piece of news. I have been holding off exploring the drone photography business because of the FAA ban, but this seems to make it time to take another look. With other real estate photographers forging ahead in our market, even with cease and desist orders from FAA, I will keep an eye on the news. Here is the link to the article. […]

  11. Everyone has to decide for themselves whether moving forward is a good idea at this time. It kind of depends on how risk averse you are and what your actually risking. If your concern is that your breaking the law then seek the advice of an attorney. I went to dinner with my attorney last night to discuss moving forward with my AP business and he told me that this was a concise dismissal, even if the FAA can appeal this, which he said using some fancy lawyerly term he doesn't even think the the appeal will be taken up, they will lose and as far as what happens during the appeal the FAA couldn't enforce what they claimed was the law before it was dismissed there's no way that any punitive action against someone conducting AP business after the ruling will even make it to court.

    He did go onto say that you have to keep in mind that the Government doesn't seem to really care about the law at the moment, they are making it up as they go along so there is the off chance that you might be the one they want to make an example of. But you should also keep in mind that the internet [media] has blown this thing way out of proportion, I think fewer than 10 cease and desist letters were issued.
    Even the letter was vague and ambiguous, my attorney told me i had nothing to worry about. Of coarse you do have to keep in mind that if I would have had to go to court to defend this he stood to make a lot of money defending me but I was pretty certain he had my best interest in mind, he didn't want his daughter visiting her uncle in prison or me eating at their house for the rest of my life...

    The FAA doesn't want to deal with this crap, they're a lot more concerned that 767's don't disappear without a trace over the US than they are about some nerd flying a MR taking pictures of a house.

  12. Hi everyone - First time post for me but long time fan of the site... I've been shooting real estate for 12 years in Australia.

    Just to confirm for a little piece of mind would this new ruling only apply in the US? Or would this now work world-wide also?

    Thanks in advance for any replies - Cant wait to hopefully get my phantom up in the air soon!!

    Kind Regards,

    Brad.

  13. Its only for the US. I believe Australia already has regulations that permit you to shoot commercial AP. Not sure what they are, hopefully someone who is already shooting AP in Australia will jump in.

  14. I was quickly reading this before my first job this morning so thank you all for clearing that up - Always good to double check these things really appreciate it.

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