News we can all use...
This week we learned of two new FAA actions against domestic operators of what are popularly called “drones” and what the FAA calls “unmanned aircraft systems” (UAS). In one case, the FAA has claimed that it is illegal for volunteers to use radio controlled model aircraft to search for missing persons. In the other, an agency spokeswoman advised a news outlet against publishing donated video taken by a model aircraft, implying that the agency could take legal action against the news outlet if it published the video.
With these actions, the FAA has gone too far in attempting to enforce a purported ban on domestic drones. The agency’s overly broad definitions of the devices and uses to be regulated have invited arbitrary enforcement that is not only unwise but, in some cases, infringes core constitutional liberties. The FAA should cease enforcement of its purported ban until it can implement congressionally mandated regulations developed using the required notice and comment rulemaking process.
Recent FAA actions against search, rescue, and recovery, as well as photography and news gathering, have been enabled by the agency’s overly broad definitions of the devices and uses it has sought to ban. In the case of devices, though most people likely picture something similar to the U.S. military’s Predator when they hear the word “drone,” the FAA definition is so broad as to include what amount to children’s toys. In the most egregious case of attempted enforcement to date, the agency sought to fine Raphael Pirker $10,000 for unsafe operation of an aircraft, in this case a four and a half pound styrofoam model airplane. In dismissing the case, the administrative law judge ruled that the agency’s definition of “aircraft”–which is broadly defined as a “device that is used or intended to be used for flight in the air”–to include model aircraft was “risible” as it implied that the agency could regulate paper airplanes or toy gliders, something that not only defies FAA’s legal authority, but also common sense (PDF of Pirker decision, pp. 2–3 ).
The FAA appealed the decision and continues to take enforcement action against operators of model aircraft for what it claims are illegal purposes. In one recent example, the FAA is attempting once again to impose up to a $10,000 fine, this time for the use of a model aircraft by the Washington Nationals baseball team to take aerial video of their spring training. A team official echoed the Pirker judge’s sentiments by noting that the team does not seek FAA permission for its pop flies, which fly higher than the model aircraft used for videography, and which would also be considered unmanned “aircraft” under the agency’s laughable definitions.
Similarly, in the case of uses and users, the agency’s definitions are overly broad and not clearly defined. The agency identifies three categories of use/user: public, civil, and hobby/recreational. Anything that is not public, i.e. government use, is civil, with a special area carved out for hobby and recreational use. Any use that is deemed “commercial” or for “business purposes” is automatically civil and considered illegal unless the operator first obtains specific permission from the FAA. Hobbyists and recreational users operate under a set of voluntary guidelines for model aircraft issued in 1981 (PDF of the 2007 FAA policy statement).
Though these categories may seem clear on the surface, they are not. First, as the judge in the Pirker case noted (p. 5), “business” purpose is not clearly defined in the FAA’s 2007 policy document purporting to ban such uses. Similarly, neither the voluntary 1981 guidelines for model aircraft, nor the 2007 policy statement, defines what counts as a hobby, recreational, or sport use of model aircraft. The 1981 guidelines for model aircraft also do not prohibit their use for commercial purposes as the FAA claimed in its 2007 policy statement (PDF of the 1981 model aircraft guidelines).
The impact of these ambiguities is that the meaning of these terms has become arbitrary, and with predictable negative results. They have been applied inconsistently and have resulted in an ever expanding list of supposedly illegal uses of model aircraft. Though its definitions are unclear, some cases seem to fall squarely within the scope of “commercial” or “business purposes.” For example, this was the case when the FAA informed a beer company that using a radio controlled octocopter to deliver beer to ice fisherman violates FAA’s purported ban.
But in the case of EquuSearch, the group using a model aircraft to aid in search and rescue operations, we see the FAA implicitly carving out a heretofore nonexistent and wholly undefined category of use somewhere between commercial civil use and recreational use. EquuSearch is a volunteer group and, as such, is not using their model aircraft for “commercial” or “business purposes.” So, they have not violated that provision of the FAA’s purported ban. One could, therefore, argue that their use of the model aircraft falls under the hobby/recreational guidelines. That is, their “hobby” is search, rescue, and recovery. But apparently, the FAA does not see it that way because it says this is an illegal use. This implies that there are uses that, though they are not commercial, are also not hobby or recreational. It is not clear where the lines are, however. It was not even clear until news of the EquuSearch case that this invisible category existed, nor that this kind of use is supposedly illegal.
The EquuSearch case demonstrates that FAA enforcement has become arbitrary and capricious. It is impossible to comply with laws and regulations when they are hidden and unwritten.
Though the EquuSearch case is disturbing, FAA beliefs and actions in relation to First Amendment-protected activities should also be cause for serious concern. Within the FAA’s broad category of civil use, there is no space carved out for photography or news gathering. In fact, the FAA has been clear that it considers journalism to be a “commercial” activity. As such, though use of a model aircraft for hobby or recreational purposes is considered legal, use of the same device for journalism is specifically prohibited.
But, here again, we see an expanding scope of what the FAA deems an illegal use. In a trove of FAA cease and desist letters recently released as a result of a FOIA request, we can see that individuals or groups engaged in aerial photography or news gathering have been disproportionately targeted. But one of the more recent letters, sent to Hybird Video LLC of Grandview, Missouri, in June 2013, says, “The use of a Quadcopter UAS for aerial photography is prohibited without proper authorization.” This implies that any use of a model aircraft for aerial photography, even noncommercial, is considered illegal. Even more ominously, the letter warned, “The Grandview and local law enforcement agencies will be notified of this operation” (PDF of letters).
Finally, in the most recent and most disturbing case, an FAA spokeswoman implied that even publishing drone video footage obtained by someone else is illegal. After a fire in Dayton, Ohio, local hobbyists offered to donate to the Dayton Business Journal video footage of the fire taken with their model aircraft. When the news outlet asked the FAA about the legality of using the footage, an FAA spokeswoman advised the news outlet to “err on the side of caution” and not publish because, the spokeswoman said, “It’s still prohibited in the U.S. to use drones for commercial operations, and if it had to go through the court we would get our lawyers involved.”
There is good reason to believe that the FAA’s purported ban is not legally enforceable because it did not follow the proper procedures for rulemaking. This was the judge’s decision in the Pirker case (p. 8). The fact that Congress felt the need to instruct the agency to promulgate rules for the integration of UAS into the domestic airspace by 2015 is also an indicator that there are no rules. That is, the FAA was instructed to make rules precisely because there are none now. Finally, even the FAA seems to acknowledge the lack of rules, but, astonishingly, sees this lack of rules as providing it the authority to ban journalists from using a technology that is otherwise legal for hobbyists. In response to a Spokane, Washington journalist’s use of a model aircraft for news gathering, FAA spokesman Les Door said, “we can’t let them [journalists] do it [use model aircraft for news gathering] as long as there are no rules in place.”
The first, most obvious point to make here is that a lack of rules does not serve as a foundation for banning an activity. In fact, it is just the opposite. The use of a new technology is legal until the government makes it illegal or regulates its use in some way, not the other way around.
Second, even if the FAA’s purported ban were enforceable, it is likely unconstitutional when applied to photography and news gathering. First, as currently applied, model aircraft are specifically banned for journalists, even though they are legal for hobbyists. This is an unconstitutional content-based restriction on speech because it discriminates on the basis of the speaker’s identity. Second, just because First Amendment activity is undertaken for compensation or commercial purposes does not mean it loses its protection. If it did, newspapers would have no more protections than beer companies, which is not the case. Third, telling a news organization that they should not publish content obtained by someone else is a classic prior restraint on speech and is unconstitutional.
Congress has given the FAA the authority to promulgate rules for the integration of UAS into the domestic airspace. Indeed, some regulation is certainly sensible as there are foreseeable safety concerns as the number of UASs increases. Nonetheless, the FAA has not yet followed the proper procedures for creating those congressionally mandated regulations and its current attempts to enforce a blanket ban are arbitrary and capricious, stifle humanitarian use of model aircraft, and infringe on core liberties when applied to journalists and others engaged in First Amendment-protected activities with model aircraft. As such, the FAA should suspend enforcement of its 2007 policy statement until it can meet its congressional mandate or at least until the Pirker case is resolved.
"Attorney Cynthia Love and University of Utah journalism professor Avery Holton assisted in the writing of this post. Love and Holton are my co-authors on a forthcoming working paper for the Mercatus Center at George Mason University titled, “Eyes in the Skies: First Amendment Implications of the Federal Aviation Administration Domestic Drone Ban as Applied to Aerial Photography and News Gathering.”
SOURCE: http://www.forbes.com/sites/seanlaw...strikes-and-the-lessons-of-nonlinear-science/
This week we learned of two new FAA actions against domestic operators of what are popularly called “drones” and what the FAA calls “unmanned aircraft systems” (UAS). In one case, the FAA has claimed that it is illegal for volunteers to use radio controlled model aircraft to search for missing persons. In the other, an agency spokeswoman advised a news outlet against publishing donated video taken by a model aircraft, implying that the agency could take legal action against the news outlet if it published the video.
With these actions, the FAA has gone too far in attempting to enforce a purported ban on domestic drones. The agency’s overly broad definitions of the devices and uses to be regulated have invited arbitrary enforcement that is not only unwise but, in some cases, infringes core constitutional liberties. The FAA should cease enforcement of its purported ban until it can implement congressionally mandated regulations developed using the required notice and comment rulemaking process.
Recent FAA actions against search, rescue, and recovery, as well as photography and news gathering, have been enabled by the agency’s overly broad definitions of the devices and uses it has sought to ban. In the case of devices, though most people likely picture something similar to the U.S. military’s Predator when they hear the word “drone,” the FAA definition is so broad as to include what amount to children’s toys. In the most egregious case of attempted enforcement to date, the agency sought to fine Raphael Pirker $10,000 for unsafe operation of an aircraft, in this case a four and a half pound styrofoam model airplane. In dismissing the case, the administrative law judge ruled that the agency’s definition of “aircraft”–which is broadly defined as a “device that is used or intended to be used for flight in the air”–to include model aircraft was “risible” as it implied that the agency could regulate paper airplanes or toy gliders, something that not only defies FAA’s legal authority, but also common sense (PDF of Pirker decision, pp. 2–3 ).
The FAA appealed the decision and continues to take enforcement action against operators of model aircraft for what it claims are illegal purposes. In one recent example, the FAA is attempting once again to impose up to a $10,000 fine, this time for the use of a model aircraft by the Washington Nationals baseball team to take aerial video of their spring training. A team official echoed the Pirker judge’s sentiments by noting that the team does not seek FAA permission for its pop flies, which fly higher than the model aircraft used for videography, and which would also be considered unmanned “aircraft” under the agency’s laughable definitions.
Similarly, in the case of uses and users, the agency’s definitions are overly broad and not clearly defined. The agency identifies three categories of use/user: public, civil, and hobby/recreational. Anything that is not public, i.e. government use, is civil, with a special area carved out for hobby and recreational use. Any use that is deemed “commercial” or for “business purposes” is automatically civil and considered illegal unless the operator first obtains specific permission from the FAA. Hobbyists and recreational users operate under a set of voluntary guidelines for model aircraft issued in 1981 (PDF of the 2007 FAA policy statement).
Though these categories may seem clear on the surface, they are not. First, as the judge in the Pirker case noted (p. 5), “business” purpose is not clearly defined in the FAA’s 2007 policy document purporting to ban such uses. Similarly, neither the voluntary 1981 guidelines for model aircraft, nor the 2007 policy statement, defines what counts as a hobby, recreational, or sport use of model aircraft. The 1981 guidelines for model aircraft also do not prohibit their use for commercial purposes as the FAA claimed in its 2007 policy statement (PDF of the 1981 model aircraft guidelines).
The impact of these ambiguities is that the meaning of these terms has become arbitrary, and with predictable negative results. They have been applied inconsistently and have resulted in an ever expanding list of supposedly illegal uses of model aircraft. Though its definitions are unclear, some cases seem to fall squarely within the scope of “commercial” or “business purposes.” For example, this was the case when the FAA informed a beer company that using a radio controlled octocopter to deliver beer to ice fisherman violates FAA’s purported ban.
But in the case of EquuSearch, the group using a model aircraft to aid in search and rescue operations, we see the FAA implicitly carving out a heretofore nonexistent and wholly undefined category of use somewhere between commercial civil use and recreational use. EquuSearch is a volunteer group and, as such, is not using their model aircraft for “commercial” or “business purposes.” So, they have not violated that provision of the FAA’s purported ban. One could, therefore, argue that their use of the model aircraft falls under the hobby/recreational guidelines. That is, their “hobby” is search, rescue, and recovery. But apparently, the FAA does not see it that way because it says this is an illegal use. This implies that there are uses that, though they are not commercial, are also not hobby or recreational. It is not clear where the lines are, however. It was not even clear until news of the EquuSearch case that this invisible category existed, nor that this kind of use is supposedly illegal.
The EquuSearch case demonstrates that FAA enforcement has become arbitrary and capricious. It is impossible to comply with laws and regulations when they are hidden and unwritten.
Though the EquuSearch case is disturbing, FAA beliefs and actions in relation to First Amendment-protected activities should also be cause for serious concern. Within the FAA’s broad category of civil use, there is no space carved out for photography or news gathering. In fact, the FAA has been clear that it considers journalism to be a “commercial” activity. As such, though use of a model aircraft for hobby or recreational purposes is considered legal, use of the same device for journalism is specifically prohibited.
But, here again, we see an expanding scope of what the FAA deems an illegal use. In a trove of FAA cease and desist letters recently released as a result of a FOIA request, we can see that individuals or groups engaged in aerial photography or news gathering have been disproportionately targeted. But one of the more recent letters, sent to Hybird Video LLC of Grandview, Missouri, in June 2013, says, “The use of a Quadcopter UAS for aerial photography is prohibited without proper authorization.” This implies that any use of a model aircraft for aerial photography, even noncommercial, is considered illegal. Even more ominously, the letter warned, “The Grandview and local law enforcement agencies will be notified of this operation” (PDF of letters).
Finally, in the most recent and most disturbing case, an FAA spokeswoman implied that even publishing drone video footage obtained by someone else is illegal. After a fire in Dayton, Ohio, local hobbyists offered to donate to the Dayton Business Journal video footage of the fire taken with their model aircraft. When the news outlet asked the FAA about the legality of using the footage, an FAA spokeswoman advised the news outlet to “err on the side of caution” and not publish because, the spokeswoman said, “It’s still prohibited in the U.S. to use drones for commercial operations, and if it had to go through the court we would get our lawyers involved.”
There is good reason to believe that the FAA’s purported ban is not legally enforceable because it did not follow the proper procedures for rulemaking. This was the judge’s decision in the Pirker case (p. 8). The fact that Congress felt the need to instruct the agency to promulgate rules for the integration of UAS into the domestic airspace by 2015 is also an indicator that there are no rules. That is, the FAA was instructed to make rules precisely because there are none now. Finally, even the FAA seems to acknowledge the lack of rules, but, astonishingly, sees this lack of rules as providing it the authority to ban journalists from using a technology that is otherwise legal for hobbyists. In response to a Spokane, Washington journalist’s use of a model aircraft for news gathering, FAA spokesman Les Door said, “we can’t let them [journalists] do it [use model aircraft for news gathering] as long as there are no rules in place.”
The first, most obvious point to make here is that a lack of rules does not serve as a foundation for banning an activity. In fact, it is just the opposite. The use of a new technology is legal until the government makes it illegal or regulates its use in some way, not the other way around.
Second, even if the FAA’s purported ban were enforceable, it is likely unconstitutional when applied to photography and news gathering. First, as currently applied, model aircraft are specifically banned for journalists, even though they are legal for hobbyists. This is an unconstitutional content-based restriction on speech because it discriminates on the basis of the speaker’s identity. Second, just because First Amendment activity is undertaken for compensation or commercial purposes does not mean it loses its protection. If it did, newspapers would have no more protections than beer companies, which is not the case. Third, telling a news organization that they should not publish content obtained by someone else is a classic prior restraint on speech and is unconstitutional.
Congress has given the FAA the authority to promulgate rules for the integration of UAS into the domestic airspace. Indeed, some regulation is certainly sensible as there are foreseeable safety concerns as the number of UASs increases. Nonetheless, the FAA has not yet followed the proper procedures for creating those congressionally mandated regulations and its current attempts to enforce a blanket ban are arbitrary and capricious, stifle humanitarian use of model aircraft, and infringe on core liberties when applied to journalists and others engaged in First Amendment-protected activities with model aircraft. As such, the FAA should suspend enforcement of its 2007 policy statement until it can meet its congressional mandate or at least until the Pirker case is resolved.
"Attorney Cynthia Love and University of Utah journalism professor Avery Holton assisted in the writing of this post. Love and Holton are my co-authors on a forthcoming working paper for the Mercatus Center at George Mason University titled, “Eyes in the Skies: First Amendment Implications of the Federal Aviation Administration Domestic Drone Ban as Applied to Aerial Photography and News Gathering.”
SOURCE: http://www.forbes.com/sites/seanlaw...strikes-and-the-lessons-of-nonlinear-science/
