While it has always been legal to fly model planes, the Federal Aviation Administration and other government agencies recently picked a fight with the newest generation of model planes: drones.
Distinct from the plane-sized drones the military has notoriously used in recent years, drones used for photography are small in size, more akin to a toy plane, and have several uses beyond aerial photography.
Raphael Pirker, a drone pilot and photographer, took the FAA to court and won last March, after the FAA tried to fine him $10,000 for flying a foam drone plane weighing two pounds around the University of Virginia campus. Federal judge Patrick Geraghty dismissed the FAA’s case against Raphael Pirker on March 6, stating that the FAA had not issued an enforceable rule governing model aircraft operation.
“[The FAA] has not issued an enforceable Federal Acquisition Regulation regulatory rule governing model aircraft operation; [the FAA] has historically exempted model aircraft from the statutory FAR definitions of ‘aircraft.’”
Judge Geraghty’s ruling would make model aircraft sized drones legal not just for photography, but for everyone – a big deal, as the commercial drone industry is expected create more than 70,000 jobs in the United States with “an economic impact of more than $13.6 billion” in just the first three years of integrated use, according to one economic report. Amazon.com is reportedly already hiring software engineers and communications professionals to help realize their goal of making drone deliveries and, as Vice.com’s Jason Koebler reports, crop dusting is another industry that may be completely taken over by drones.
The FAA has stated it will appeal Judge Geraghty’s ruling in the Pirker case and may continue to try banning all “commercial drone” activity during the appeal. The FAA might also attempt to create a law limiting drones from flying, as the FAA has failed to create any rules concerning model aircraft despite a ten year old mandate from Congress to do so. However the FAA recently began backtracking, claiming that the cease and desist letters they sent to several drone operators were not actually orders. One recipient of the FAA’s cease and desist letters was the University of Missouri’s Drone Journalism Program, which was told to stop flying until it received FAA authorization. The FAA’s letter to the Drone Journalism Program also raises the issue of whether the FAA will be able to regulate drones that are not used commercially, but for news gathering purposes.
“Certainly the FAA, in terms of safety, can promulgate new rules, the question is what they’re going to do and when they’re going to do it,” said Mickey Osterreicher, general counsel for the National Press Photographers Association. “The First Amendment is not absolute, and the courts have consistently held that it is subject to reasonable time, place, and manner restrictions. Is the FAA going to be able to regulate time, place and manner in regards to news gathering? There have been quite a number of cases that distinguish news gathering purposes from commercial purposes. That’s not to say they won’t do it and be subject to a court challenge. If they do proceed on the course they have so far articulated, I expect that will probably be challenged, and then it will be up to the courts to decide if they can uphold those regulations.”
Pirker was the first person that the FAA had tried to fine for flying a drone, and the FAA’s legal argument was, to be kind, strange. The FAA tried to charge Pirker with “reckless operation of an aircraft,” a statute which mentions “aircraft cabin” and other terms demonstrating that the statute is meant for jetliners, and not model airplane-like drones. The FAA’s argument ended up getting their case thrown out, and created a legal precedent that declared in black-and-white that the FAA’s policing of model airplane-type drones was not lawful. Even the initial report on Pirker’s supposed violation failed to cite any statute.
Other government agencies that have tried to enforce a “no drone” policy with questionable legal authority should now be on notice. The National Park Service claims that drone use may subject a person to six months imprisonment and/or a $5,000 fine. The code the Park Service is using to back up this claim – 36 CFR 2.17(a)(3) – prohibits aircraft from retrieving objects or people in specific circumstances, but the code is in a section designed to police vehicles that carry people, and may not hold water in court when applied to miniature drone aircraft, especially when the drone is taking pictures, and not retrieving anything. Park rangers at the Grand Canyon confiscated Rafael Pirker’s drone’s memory card in December 2011 after demanding he delete his footage and threatening to obtain a search warrant (but not before Pirker got the sweet footage at the top of this article).
Pirker eventually paid a $325 fine issued by the rangers in the hopes of settling the matter, but the park service sent Pirker a cheap, unusable replacement instead of sending back his top-of-the-line memory card, which is being held as “evidence of a crime.” To ask why Rafael Pirker’s memory card constitutes evidence of a crime, you can find the email address of the National Park Service Law Enforcement Specialist involved towards the bottom of this article.
In another recent case, the Hartford City Police Department ordered photojournalist Pedro Rivera to stop flying his drone near the scene of a car chase and complained to the TV station he worked at, resulting in the station suspending him. Rivera, who is now suing the Hartford Police, said
“It’s absolutely ridiculous. I wasn’t charged, I didn’t violate anything. They went after my job. I think what happened to me falls in the category of the war on cameras by the police. Whenever the police are videotaped, they try to detain people and confiscate the camera.”
Over forty states have or have proposed drone regulations. North Carolina’s proposed drone law would drastically inhibit unmanned aerial photography. Meanwhile, a group of media companies, including the Associated Press, claimed in an amicus brief filed to support Rafael Pirker that the use of drones for news gathering purposes is a public service, and not a commercial use, adding further weight to the established argument that drone photographers will be able to keep flying.
So what does all this mean? Don’t be surpised if you see a PINAC heli-camera in the near future.
For news tips on aerial photography and drones, contact Andrew Meyer, PINAC’s staff writer covering drone photography, the First Amendment, and more.