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Enforcement action against commercial drones

Discussion in 'General Discussion' started by RussA, Jun 20, 2014.

  1. RussA

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    There's been a lot of discussion here about the Pirker decision and whether or not commercial drones are legal in the U.S. The discussion I've seen on this forum has been confusing and in some cases inaccurate, so I am asking for some clarification. Is anyone aware of any enforcement action by the FAA against anyone for commercial use of multirotors or similar hobbyist-type craft? Before you answer yes, Pirker, I don't believe that qualifies. I'll explain below, but there could be other cases, such as filmmakers, farmers, etc. who use them commercially and have been cited for not having a UAS pilot's license.

    As I read the decision of the ALJ in Pirker, the ruling did not involve the fact the pilot was paid for his work. He was cited for operating an aircraft recklessly in violation of 14 CFR § 91.13. The Order of Assessment mentions that the pilot was being paid, but it appears to me that if it had been an unpaid hobbyist flying as described (various reckless actions were alleged) the hobbyist would also have been cited since the FAA definition of an aircraft is any "device" or "contrivance" intended to be flown in the air. The regulation itself does not say anything about only commercial aircraft. Any aircraft appears to be subject to the regulation. The ALJ ruled that model aircraft are exempted from the definition of aircraft by virtue of the FAA's practice of non-enforcement against them. In essence he ruled that the FAA has tacitly admitted by its actions that model aircraft are not covered by its existing regulations. The ALJ never got to the questions of fact since he ruled solely on the threshold question of whether the FAA had regulatory authority, but if the fact of commercial operation was essential to the question of whether the craft was an "aircraft" within the meaning of the regulation, he would have had to hold a factual hearing to determine whether the operation was commercial. He didn't. So if it's a "model" (commercial or not) then it's not an aircraft under Pirker.

    This, of course, does not answer the question of what is a "model" aircraft under Pirker. I believe the Pirker decision is vulnerable on appeal, because the ALJ did not define what he considered model aircraft, and although he pointed out the 2012 Act did not apply, he called it "instructive" and seemed to imply that it was important in making this determination. The problem with that is that the Act requires a model aircraft to be for hobby or recreational purposes, which would mean Pirker's plane was NOT a model aircraft and should be controlled by the regulation. The 2012 Act defines it pretty clearly and that will no doubt be used for rule-making in the future, but in the meantime the real question I'm asking is whether commercial use is even relevant to the FAA? Does anyone have knowledge of FAA's current practice? A lot of US Phantom owners are reluctant to charge for services, but the FAA may not even care as long as you aren't reckless or violate any other rules.
     
  2. N017RW

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    With regards to your last paragraph,

    If the Phantom is a model aircraft...
    ... What exacty is the Phantom a 'model' of?

    Another “Chink in the Armor” ?
     
  3. kydan

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    FAA only has guidelines. You're not breaking the law if you disobey the "guidelines".

    In my state the only law is that law enforcement can't use drones unless for 3 reasons (which make sense). There's no local ordinances/laws to limit what I do either with my phantom.

    I can charge for commercial use as well without the fear of repercussion.


    Yes there will be laws enacted due to the gaining popularity of our hobby, but until then I'm not holding anything back.


    Edit: when charging be sure to include it in your tax returns!!
     
  4. RussA

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    I disagree. It also has valid regulations.
    Correct.
    Probably, but not not necessarily true. The Pirker decision is under appeal. Until then the FAA can still levy a civil assessment against you, and the ALJ you get may not agree with the one in Pirker. Administrative law rulings have some precedential value, but they are not binding on other judges. However I doubt the FAA will be doing this until the appeal is decided.
    Good advice.
     
  5. kydan

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    What regulations are in place for drone usage?


    Edit: I ask because on dronelawjournal.com it states (RCMA refers to remote-controlled model aircraft):

    "Despite what you might have seen, heard or read to the contrary; despite the FAA’s claim that it has authority over RCMA; despite the FAA having sent several cease and desist letters, (obtained recently via FOIA request by Attorney Patrick Mckay), to persons who were operating RCMA for commercial purposes, there exists not a single federal statute, not a single federal regulation and no case law that in any way regulates the operation of RCMA.

    None."
     
  6. kydan

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    According to dronelawjournal.com the Pirker case from the FAA's perspective didn't even include commercial use. It's sole basis was for operating the aircraft in a reckless manner endangering the public.

    Dronelawjournal.com:

    "In the first FAA enforcement action against an operator of an RCMA, Administrator v. Raphael Pirker, NTSB Docket CP-217 (July 18, 2013), the FAA is trying to fine Raphael Pirker, (who is being defended quite capably by Attorney Brendan M. Schulman who posts on Twitter under @dronelaws), for “reckless operation” of a remote-controlled model aircraft under FAR Part 91. Pirker was hired by the University of Virginia to obtain aerial video of its campus.

    Although the FAA alleged in its July 18, 2013 Order of Assessment, (its Complaint), that Pirker was flying for compensation, interestingly enough, it did not use that allegation as a basis for the proposed assessment of a civil penalty of $10,000.00. Instead it relied on Pirker’s alleged violation of FAR 91.13(a) that states, “no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another” as the basis.

    If commercial use is in fact illegal, why didn’t the FAA also base its Complaint on Pirker’s alleged commercial use? Well, it couldn’t because there are no regulations that prohibit commercial use, and it knew in the absence of any such regulations, basing its Complaint on commercial use wouldn’t fly. (Pun intended.)

    However, by not using commercial use as a basis of the proposed civil penalty, and relying solely upon an allegation of reckless operation, the FAA has also essentially admitted in its own Complaint that commercial use is not prohibited. If Pirker prevails, it still won’t settle the specific commercial use issue because that was not a basis of the FAA’s Complaint. However it will settle the overall question as to whether the FAA has authority to regulate RCMA at all, which would, of course, include commercial use. "
     
  7. RussA

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    14 CFR § 91.13 for one, and many others, as long as the "drone" (which is undefined) is also an "aircraft" (which is defined in the regulations). That's the point of my post. The regulation was not struck down. the ALJ in Pirker just held that it didn't apply to "model aircraft" which in his opinion are not "aircraft" despite the FAA's definition saying it is. But he didn't say what is a model aircraft, and Congress as of 2012 says that in order to be a model aircraft, it can't be flown commercially. I can very well see an appellate court overturning the ALJ's decision and saying that Pirker's "drone" was not a model aircraft. It could also say that the regulation applies even if the drone was a model aircraft because Congress intended the FAA to have regulatory power over the airspace and the clear intent of the regulation is to prevent airborne recklessness.

    To the extent Pirker holds up on appeal, this is true, but it is by no means clear that everything we call a drone fits in the definition of an RCMA. If you read the Pirker decision carefully, you see that the ALJ himself seems to imply that the Congressional definition of a model (and therefore exempt from being an "aircraft" under current regs.) is the proper definition, including the requirement that it not be commercial, but then he refuses to apply that definition to Pirker's plane (which he calls an "apparatus"). And as I pointed out, there is nothing to stop the FAA from assessing anyone else a civil penalty, since there is no injunction of any kind against them. And if they do assess you, there is nothing to prevent the ALJ hearing your case from holding that your Phantom is an aircraft, subject to all the regulations that apply to all other aircraft. Judges disagree with other judges all the time. You could then hire a lawyer and appeal it, and maybe win based on Pirker, or maybe not. As I said, I don't expect the FAA to do this, but it is possible, despite what dronelawjournal says.
     
  8. kydan

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    Yes in this country anyone can bring anyone else to court for whatever reasons justified or not. There's no getting around that. :D

    However, as it stands, I can still do whatever I want commercially without fear of repercussion. No laws or regulations are in place *yet*. None. Nada.

    You just flipped what you originally said which didn't make sense as you said yourself the commercial piece was left out and the FAA went for the safety aspect instead.
     
  9. ianwood

    ianwood Taco Wrangler
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    The NTSB judge rightfully pointed out that 14 CFR § 91.13 did not apply and that past FAA regulation had a pattern of distinguishing model aircraft from Part 91 aviation. I can't see how an appellant court will see it any differently. That it was a commercial operation was only relevant because the The Modernization and Reform Act of 2012 has explicit protections for hobby use.

    If the appeal were successful, it would mean a drone is a model aircraft except when money changes hand. Then it becomes an airplane. Or, it would mean all model aircraft are airplanes. Either way, it's not going to happen.

    The FAA failed to act on drones in time and they got all hot and bothered when drones took to the NAS without their blessing. In a desperate attempt to assert their control over the growing population of drones, they made an absurd case and summarily lost. Now they've got egg on their face. I don't think they're going to want any more high-profile embarrassments like the Pirker case until they define a meaningful body of rules to stand on. That's not going to stop them from sending out nastigrams just to remind everyone who's the boss of the air above our heads.
     
  10. Suwaneeguy

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    The law Pirker was cited under pertains to "licensed" pilots that are under direct control of the FAA.
    As it stands now, there is no requirement for a UAV operator to be licensed in the USA.
    This was the basis of the NTSB ruling against the FAA.