Neal Rasmussen, MJLST Staff Member
Since the March 2014 decision by administrative law judge Patrick Geraghty, the legality of using a drone for commercial purposes has been up for debate. Geraghty held that the Federal Aviation Administration (FAA) could not regulate the use of drones for commercial purposes under the current regulatory regime because a drone could not be considered an “aircraft” under 14 C.F.R. § 91.13(a) therefore could not be in violation of the Federal Aviation Regulations.
The FAA’s ability to regulate commercial drones came to the forefront when Raphael Pirker, a professional photographer, was paid by the University of Virginia to provide aerial photographs and video, which was accomplish by using a small drone. The FAA claimed the drone was operated in “a careless or reckless manner so as to endanger the life or property of another” in violation of 14 C.F.R. § 91.13(a) and assessed a $10,000 penalty. Pirker promptly challenged this penalty arguing his drone was not an “aircraft” and could not be in violation of the Federal Aviation Regulations. Geraghty agreed, finding that the definition of “aircraft” as defined in 49 U.S.C. § 40102(a) (6) (“any contrivance invented, used or designed to navigate or fly in, the air”) and 14 C.F.R. § 1.1 (“a device that is used or intended to be used for flight in the air”) did not include model aircraft or drones.
This decision left a gaping hole in the FAA’s enforcement power and was welcomed by businesses using commercial drones due to their ability to now fly without fear of penalties. Understandably, the decision was immediately appealed by the FAA. On appeal the National Transportation Safety Board (NTSB) reversed the decision by finding that drones did meet the definition of “aircraft” as defined in 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1, thus Pirker could be subject to penalties for violation of 14 C.F.R. § 91.13(a). The NTSB remanded the case in order to determine if Pirker’s operation was in a careless or reckless manner warranting the $10,000 penalty.
In an effort to legally integrate drones into the National Airspace System (NAS), the FAA has since allowed businesses to file for exemptions under Section 333 of the FAA Modernization and Reform Act of 2012. These exemptions are acting as a gap filler until the FAA releases their proposed regulations for small drones, which are expected later this year. To date, thirteen Section 333 exemptions have been granted by the FAA. The most prevalent industry to be granted an exemption is the film industry, totaling seven of the thirteen. Other industries include construction, real estate, agriculture, and surveying. The number of exemptions is expected to grow, as the FAA has received over 200 applications for exemptions. However, the number of drones in the sky is not expected to skyrocket anytime soon due to the length of time and expense needed in order to obtain a Section 333 exemption which limits the number of companies that can apply and be granted an exemption.
Although not ideal, the exemption process is a major step in the right direction for the FAA as it finally begins to work with, not against, businesses to fully integrate drones into the NAS. Full integration into the NAS, however, will not occur until final regulations are released later this year. Even after regulations are released it could take a few years to work out all of the logistics of using drones for commercial purposes. In any event, don’t expect your Amazon package to be delivered by drones anytime soon. Stay tuned!