Judge shoots down FAA drone fine

A federal judge decided Thursday that the Federal Aviation Administration (FAA) does not prohibit commercial droning. Could this be the beginning of a whole new phase in drone use?

The FAA had fined photographer Raphael Pirker $10,000 for reckless flying.

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But the National Transportation Safety Board judge, Patrick Geraghty, dismissed the fine and ruled there are no laws or regulations prohibiting such commercial use of drones. The FAA has not commented, except to say that it is reviewing the decision.

In 2011, Pirker had used a Zephyr II drone – a five-pound foam vehicle — to take aerial shots of the University of Virginia in Charlottesville for an ad for the medical school.

The next year, the FAA fined him for drone-related violations — the first such fine. He contended that commercial use of model aircraft was not regulated by the agency and that an FAA policy statement from 2007 was not binding because it had never gone through a public notice procedure. The judge agreed, although the agency commonly uses policy statements to set requirements.

Last month, the agency posted on its website a list of “misconceptions and misinformation” about unmanned aircraft system (UAS) regulations in the U.S. It described one myth as being that “commercial UAS operations are a ‘gray area’ in FAA regulations.” In fact, the agency said:

There are no shades of gray in FAA regulations. Anyone who wants to fly an aircraft — manned or unmanned — in U.S. airspace needs some level of FAA approval. Private sector (civil) users can obtain an experimental airworthiness certificate to conduct research and development, training and flight demonstrations. Commercial UAS operations are limited and require the operator to have certified aircraft and pilots, as well as operating approval. To date, only two UAS models (the Scan Eagle and Aerovironment’s Puma) have been certified, and they can only fly in the Arctic. Public entities (federal, state and local governments, and public universities) may apply for a Certificate of Waiver or Authorization (COA). The FAA reviews and approves UAS operations over densely-populated areas on a case-by-case basis.

Flying model aircraft solely for hobby or recreational reasons doesn’t require FAA approval, but hobbyists must operate according to the agency’s model aircraft guidance, which prohibits operations in populated areas.

Ryan Calo, a professor of law at the University of Washington, told NBC News that, while the FAA may not be able to fine drone users as a result of the new ruling, the skies may not yet be open to the little birds. “I don’t think it’s time to let a thousand drones fly,” he said. “It’s time to see how the FAA reacts.”

The FCC says it is moving to establish drone rules, having selected at the end of last year six sites that will be used as testing grounds, so to speak, for regulations about unmanned aerial vehicles. Areas to be determined include technologies, certification, safety rules, environmental issues like noise, and communication standards.

But the sites – in Alaska, Nevada, New York, North Dakota, Texas, and Virginia – were originally expected to be selected a year ago, and the agency has been accused of not moving quickly enough to set clear policy.