JURIST Guest Columnist Joseph J. Vacek of the University of North Dakota School of Aerospace Sciences argues that the recent decision by an Administrative Law Judge of the NTSB that struck down the FAA’s ban on the commercial use of drones for procedural reasons raises a larger issue concerning the FAA’s authority to regulate low-altitude, non-navigable airspace that may usher in the legal use of commercial drones in the US …

Recent advancements in technology have facilitated new uses for small drones which have captured public attention. Commercials depicting an airborne package delivery from an Amazon.com branded drone and a GPS-enabled beer delivery by drone from Lakemaid Beer have stimulated much public comment. While airborne cargo services, autonomous flight and very small aircraft by themselves are old news in the discipline of aviation, in combination they represent a paradigm shift which the federal regulatory system governing aircraft and aviation have not yet fully comprehended.

Experimenters and hobbyists have assembled and flown small semi-autonomous aircraft of various shapes and sizes for years, Federal Aviation Administration (FAA) regulators have officially ignored their activities—which are deemed “model aircraft” activities under a 1981 advisory notice [PDF]—as long as the modelers fly low and avoid manned aircraft activities and airports. Fully autonomous flight has been around since WWII, when the first drones were developed by the military for aerial gunnery practice or weapons delivery.

The advent of remote sensing equipment—small and light enough to be carried on a small, remote controlled aircraft—and the concurrent development of more efficient batteries have led to commercial sales of relatively simple consumer-oriented “flying cameras” to very sophisticated drones designed for surveillance use by police, carrying infrared or thermal sensing devices. The FAA—tasked with regulating air commerce and protecting the flying public and people on the ground under 49 USC 40103 [PDF]— has, since 2005, held that the commercial use of small drones is prohibited in US airspace absent special permission. That position was outlined in a policy document known in the aviation industry simply as 05-01—later as 08-01 [PDF]. The only way a person was allowed to operate a drone—defined technically as an unmanned airborne vehicle (UAV) or unmanned aircraft system (UAS)—was to apply to the FAA’s Unmanned Aircraft Program Office for a Certificate of Authorization (COA), which grants the special permission that the FAA determined necessary to operate a UAS in the US. In 2007, the FAA issued [PDF] a clarification of FAA policy in the Federal Register, declaring:

People and companies other than modelers might be flying UAS with the mistaken understanding that they are legally operating under the authority of AC 91-57. AC 91-57 only applies to modelers, and thus specifically excludes its use by persons or companies for business purposes.

But in order to obtain a COA, a person had to be affiliated with a public institution of some kind—like a university, a sheriff’s department or the federal government. The result was a rash of rogue operators who, according to the FAA, operated small drones for commercial purposes under the agency’s radar—such as aerial photography, agricultural observations and advertising. One of those operators was Raphael Pirker.

Pirker—under the pseudonym “Trappy”—created videos by flying drones at low altitudes and sold some of those videos. The FAA fined Pirker $10,000 for those videos in its first enforcement case related to unauthorized commercial use of small drones, alleging his flight violated Federal Aviation Regulations by flying close to people and structures at such a low altitude that it was dangerous. Certified pilots of manned aircraft occasionally engage in similar reckless behavior and receive similar sanctions from the FAA. If, for example, a private pilot in a small Cessna-type aircraft “buzzes” at low altitude at a friend’s barbecue party, a similar enforcement case will result with the pilot’s pilot certificate generally being suspended or revoked. In Pirker’s case—since he did not possess a pilot certificate—the FAA’s only option was a monetary fine.

Pirker, however, responded by arguing not that his flight wasn’t dangerous to people or property on the ground, but that the rules the FAA purported to apply to him were not, in fact, valid rules. The crux of his argument was that the FAA’s policies related to UAS were merely advisory and lacked the force of law because they were not made in accordance with the Administrative Procedure Act’s (APA) requirement for a period of public notice-and-comment.

The FAA responded by arguing that since UAS are aircraft—which are defined very broadly as “a device that is used or intended to be used for flight in the air”—they had the authority to regulate them, which they did by way of their policy documents. Pirker’s arguments and the FAA’s responses were styled as motions to an Administrative Law Judge of the National Transportation Safety Board (NTSB), and the judge granted with prejudice Pirker’s motion to dismiss finding [PDF] that the FAA’s policies lacked the force of law since they had not been created in accordance with notice-and-comment rulemaking. The FAA has since announced its intention to appeal the decision. Pirker also raised some interesting issues that—in this author’s opinion—are far more momentous. The background issue that looms larger than rulemaking procedure was the substantive issue raised in the motions that the FAA is attempting to regulate airspace that is not “navigable.”

While Pirker’s motion only briefly addressed the “navigable airspace” issue, the FAA responded by affirmatively alleging that it has the power to regulate all airspace in the US, not just that which is defined as navigable. A series of Supreme Court decisions have roughly defined the boundaries on ownership of airspace—property owners own as much airspace above their property as they can reasonably use, and the air above is akin to a public highway that all persons have a right to transit. Additionally, zoning rules near airports defining approach and departure paths have been held as valid exercises of governmental police power. And while aeronautical charts used by pilots define certain categories of airspace—some of which start at the ground—and establish the operating rules within them, no court has squarely addressed the question of whether the FAA’s designation and current claim of jurisdiction over all airspace in the US goes beyond its statutory authority to regulate only navigable airspace.

Before small drones were available on the market, that question was not ripe because relatively few activities used “non-navigable” airspace close to the ground. Now, it appears small drones operated at those very low altitudes have become useful tools in many contexts: airborne photography, property surveying and agricultural uses, among others. If the FAA stands on its assertion that it has the power to regulate all devices used or intended to be used in the air at all altitudes, it will collide with precedent defining property rights and what constitutes reasonable regulation of the use of that property.

Pirker may avoid his $10,000 civil penalty with his procedural argument, but his case represents a new aviation archetype to which the FAA must adapt. It will not be enough for FAA to quickly enact their UAS policies into binding rules. As jet transport aircraft turned high altitude blue sky into a public highway, small UAS are similarly changing low adjacent altitudes into something new.

Joseph Vacek is Associate Professor of Aviation at the University of North Dakota School of Aerospace Sciences, Department of Aviation, where he teaches aviation and space law as well as technical aviation courses. Professor Vacek received his J.D. from the University of North Dakota in 2006. His primary research area is in UAS law, including civil regulation and police use of drones. Professor Vacek also holds certificates in commercial pilot and flight instruction. The University of North Dakota was the first university to offer a degree in UAS aviation and hosts the Unmanned Aircraft Systems Center for Research, Education and Training.

Suggested Citation: Joseph Vacek, ALJ Decision May Usher In Legal Use of Commercial Drones, JURIST – Forum, Mar. 18, 2014, http://jurist.org/forum/2014/02/joseph-vacek-alj-drones.php.