Brendan Schulman v. the FAA

Brendan Schulman has been building and flying radio-control model aircraft for 20 years. He is also a New York City-based attorney defending Raphael Pirker, who was fined $10,000 by the Federal Aviation Administration for making a 2011 commercial flight using a model aircraft. Schulman argued the case before a federal judge assigned to the National Transportation Safety Board and won, but the Federal Aviation Administration intends to appeal the decision.

Air & Space: What did your client, Raphael Pirker, do that brought him to the attention of the FAA? And what was he charged with?

Schulman: Raphael is a drone videographer. [See “Pilot Cam,” June/July 2011.] He travels around the world taking aerial videos from interesting vantage points, including mountains, glaciers, and cities. Two years ago, he was asked to take aerial video for possible use in a commercial on behalf of the University of Virginia Medical Center in Charlottesville. And to do that, he used a five-pound Styrofoam drone with a GoPro camera on the front. He used that to fly around certain parts of the campus.

Mr. Pirker had flown dozens of other similar flights, but he was paid nothing for them. And then he’s doing essentially the same thing and getting a fee.

The FAA determined that it was a commercial aerial photography flight as opposed to recreational, which all of his other flights in the U.S. had been. And given that the FAA has a policy, put into place in 2007, that commercial drone use is not permitted, they invoked the aviation regulation concerning reckless operation of an aircraft. In the absence of a regulation specifically concerning model aircraft or drones, the FAA fined Mr. Pirker $10,000 in connection with his model aircraft flight by alleging that it was reckless.

Why would this flight be a concern to the agency when his others weren’t?

The only difference between the one flight they’ve taken issue with and these other flights he’s done over the past few years is the commercial nature of what he was doing. [T]o me, there’s never been an issue with the commercial use of model aircraft. Obviously, that use is increasing in popularity because with the miniaturization of certain kinds of technologies, people are coming to realize the vast potential for these devices. But it’s just not true that these devices haven’t been used for commercial purposes for many, many years. And in 2007, the FAA basically said, as a matter of unenforceable policy: We’re not going to permit that anymore.

What you’re saying is that Mr. Pirker is not even being charged with flying a drone for commercial purposes. Instead they charged him with reckless use of an aircraft—is that correct?

Well, it’s very clear from their complaint—the formal legal document—that the premise of the penalty against him is the allegation that the flight was commercial in nature. And that’s what leads the FAA to call the device he was operating an unmanned aircraft system rather than a model aircraft. Because it’s the unmanned aircraft system that is subject to the new policy issued in 2007. However, there’s no provision in the policy addressing violations of any rules concerning the use of a model aircraft. So the agency issued a policy, but there was no regulation anywhere to enforce, so the fallback position for the agency was to invoke this general regulation concerning reckless operation of an aircraft. But this is the very first time anything like that’s been done.

The notion that these regulations can just apply to model aircraft or what we now call civilian drones is incongruous. You’ve got regulations that are set up to deal with people flying on airplanes. They talk about seatbelts and all sorts of regulations concerning the aircraft crew. To suggest that flying a model aircraft too close to a building is the same kind of safety violation as flying a real manned aircraft loaded with fuel close to a building is absurd. And the administrative law judge said it was absurd.

Back in 2007, when the agency first considered the potential use of unmanned aircraft systems in the United States, I think everyone had in mind the very large, high-altitude Predator drones or Global Hawk drones that were flying in the same airspace as manned aircraft and were large enough to pose hazards to those aircraft. And today the technology is not at all like that. The value of these civilian drones is at very low altitudes: using lightweight equipment such as quadcopters and Styrofoam flying wings with cameras or other sensors. Most of the use of this technology is going to be maybe a hundred to two hundred feet off the ground, where if it’s cinematography you’re filming movie scenes. If it’s farming, you’re flying just above crop level. If you’re inspecting oil and gas or electric infrastructure, you’re flying low. So there’s a conceptual problem here: The agency started off almost a decade ago conceiving of this technology as the same thing as a [manned] aircraft but these are low-altitude, lightweight flying robots.

What do you think was behind the FAA’s 2007 policy to not allow unmanned aircraft to be used for commercial purposes?

I think at the time the agency wanted to buy itself some time to figure out what to do. That was perfectly reasonable then. The problem is that it’s been almost a decade, and the proposed rules have yet to be issued.

How did you go about defending Mr. Pirker?

Well, the decision only considers whether there is a regulatory basis to impose a penalty on the operator of a model aircraft. The specific model is named in the complaint: It’s a Ritewing Zephyr, which is a Styrofoam flying wing that weighs less than five pounds once fully equipped with motor and batteries. There’s no definition anywhere in the regulations of unmanned aircraft systems. There’s also no definition in the regulations of model aircraft. It’s a completely unregulated technology. So what we argued in the case was a motion to dismiss. The first step of a legal proceeding is an opportunity to get the case thrown out on the basis that even if what the FAA is saying is factually true, there’s no legal basis to impose the penalty. So we made a motion on the basis that there’s no regulation concerning model aircraft or a commercial drone. That the 2007 policy statement that purports to regulate model aircraft as if they are unmanned aircraft systems, is just a statement of policy, which is not binding as a regulation. Regulations have to go through a notice-and-comment rulemaking process, and that has not yet been done as to unmanned aircraft systems.

So it’s inappropriate legally to impose any kind of penalty—remember this is a federal penalty—to impose any kind of aviation-related federal penalty upon the operator of a model aircraft, whether it’s for business purposes or otherwise. So that was the legal argument that we made, and it’s the one that the decision was premised upon: the finding that our argument was correct. That the ban on commercial use is only an unenforceable, non-binding policy statement. That there are no regulations concerning the operation of model aircraft, and therefore that the FAA cannot penalize somebody for the operation of that device until it has regulations in place.

So you’re saying that there’s no legal foundation for the FAA’s case?

That’s right.

And what is the current status of the case?

What the judge’s position says is that if you’re going to make this substantive binding rule that the public is expected to follow, you need to engage in the appropriate rule-making process, which includes providing notice to the public and an opportunity for the public to comment on the proposed rule. The FAA has issued a notice of appeal, which indicates that they intend to appeal the decision.

Were you surprised by that?

No. I’m not surprised considering the significance of the outcome and the language of the decision. I think the decision is completely correct, but I’m not surprised to learn that the agency is unhappy about it because it overturns a seven-year-old commercial ban that the agency has relied upon to constrain people from operating commercial drones. I should add that in addition to issuing the 2007 policy statement, the FAA followed that statement with cease-and-desist letters to various commercial operators such as aerial photographers. So for years, the FAA has said both directly to private companies and also in various media sources and press coverage that flying a model aircraft or drone for a business purpose is illegal.

Do you think it’s accurate to say that there are some commercial drone operators who are able to continue their work without coming to the attention of the FAA?

People make their own decisions in all kinds of legal contexts, and this is one of them. I think it’s pretty clear just from keeping an eye on the industry that people are using drones for commercial purposes.

How truly stifling is the FAA’s position on commercial drone operation? Is it more of a nuisance? Or do you feel that the FAA’s position is really tamping down on an industry?

The latter. I think the agency’s position really is restricting the development of the industry in this country. Although it’s true that there are some small commercial operators who have nonetheless gone ahead and done commercial projects. I think it’s difficult for larger organizations to get funding for these projects and to move forward with doing things that are highly visible because of the threat of some unspecified regulatory enforcement. I think it’s had a tremendous chilling effect. I can give you one example: The Discovery Channel was, about a year ago, filming a pilot episode for a new reality show, and my understanding is that the producers wanted to use a drone to shoot video of the actor in the desert, in a location far away from other people, in a safe environment in terms of people on the ground. The producers were informed that drones were not permitted to be used for commercial purposes, so they opted for a helicopter instead. And the helicopter crashed and killed three people.

So part of the story that’s not getting told is the good things that the technology can do in terms of making things safer. Every year, there are people who fly helicopters near power lines and infrastructure to inspect them and the tail gets caught in the wire. Or you have someone on a cellphone tower who climbs up and then falls. Every year, there are numerous fatalities that result from these dangerous manned aviation operations. And if we can improve safety by using small drones that pose no threat to life if something goes wrong, that’s a net improvement to aviation safety that even the FAA should support and be in a hurry to put into place.

If the FAA finally clarifies its position, and the industry is allowed to flourish, do you think there could be a safety issue in terms of just too many drones in the sky?

In my opinion, most of the work that will be done by drones will be at low altitude in controlled environments: movie sets, agricultural fields, and around power lines and buildings being inspected. It’s unlikely there will be so many drones operating at the same time and in the same space that there will be that issue.

Diane Tedeschi | READ MORE

Diane Tedeschi is a Senior Associate Editor at Air & Space.