The FAA’s anti-drone posturing: procedurally, practically and constitutionally unsound

They say that tragedy plus time equals comedy. Sometimes that may be true. But when the tragedy is severe enough, tragedy plus time equals tragedy – leading, at best, to reflection.

Reflection on a recent tragedy has led to this post.

In March, a KOMO-TV News helicopter crashed in Seattle, killing two people. This kind of tragedy can be avoided in the future, at least in part through the use of Unmanned Aircraft Systems (UAS) – more commonly referred to as “drones”. But I fear that the current Federal Aviation Administration (FAA) stance on the use of drones will prevent news operations from employing this more nimble, informative and safer option in the future.

Note that I referred to the FAA’s “stance” on drones, rather than its “rules”. That’s because the FAA does not now have (and apparently has never had) any actual “rules” governing drone use. But that’s not stopping the FAA from engaging in bluff and bluster – along with at least one threat of a five-figure fine – in an effort to discourage drone use by, among others, news gatherers.

The good news – at least from my admittedly-biased-in-favor-of-journalists perspective – is that courts may not stand for the FAA’s shenanigans.

Let’s be clear up front. Since its establishment in 1958, the FAA plainly has had the authority to regulate civilian air traffic, primarily to ensure the safety of air travel. There’s no question about that. But the FAA’s recent threats of prosecution directed against drone users do not rationally seek to achieve that goal. Moreover, such governmental restrictions, when directed to the newsgathering process, raise serious First Amendment issues by threatening the news media’s right to gather news and inform the public.

What’s especially striking about the FAA anti-drone campaign is that it appears to be, simply put, illegal: the FAA policy underlying that at campaign was announced without regard to procedural safeguards required by the Administrative Procedure Act.

Don’t believe me? Would you believe a judge at the National Transportation Safety Board? While the FAA has made a lot of noise about its supposed restrictions on the use of UAS – mainly by sending out cease-and-desist letters and posting FAQs on its website – the FAA has thus far sought to enforce those restrictions only once, as far as I can tell. And when that case went to trial, the judge tossed it. (The FAA has since appealed; that appeal is pending.)

We’ll get to that case in a minute. First, let’s get the basic history down.

Drones, or UAS, are unmanned aircraft – they carry no pilot or passengers. They include what have been historically referred to as “model aircraft”, a genre which predates the FAA itself by several decades. “Drone” and “UAS” are simply 21st Century terms for a range of craft that are essentially model aircraft – perhaps more sophisticated, larger, more innovative than classic “model aircraft”, but model aircraft just the same.

Even though the term “model aircraft” is not defined in any statute or FAA rule or regulation, the FAA has expressly declined to subject model aircraft to any particular requirements. The closest the FAA has come to regulating such aircraft: in 1981 it “outline[d], and encourage[d] VOLUNTARY compliance with” a number of common-sense safety standards for model aircraft. (The emphasis there is mine.) Examples: keep the craft under 400 feet; if you’re operating within three miles of an airport, notify the control tower. Note that even these limits were simply “voluntary”.

Model aircraft use has expanded dramatically, leading the FAA to re-think this hands-off approach. In 2005 it issued – to its own personnel – internal guidance for determining whether UAS would be “allowed to conduct flight operations” in U.S. airspace. That internal guidance claimed that UAS were subject to multiple limitations – but it expressly exempted “model aircraft” from certification or other regulations, even though it acknowledged that model aircraft are indeed UAS. Again, the notice did not include any means of distinguishing between (a) a UAS subject to regulation and (b) a model aircraft free from regulation. And in any event, as an internal FAA document, the 2005 notice was technically not binding on the public.

In 2007 the FAA issued a “Notice of Policy” in which it purported to impose limitations on some, but not all, “unmanned aircraft”. It divided the universe of UAS into three sub-types, one of those being “model aircraft”. And while the Notice expressly said that “no person may operate a UAS in the National Airspace System without specific authority”, it again expressly exempted model aircraft from that prohibition and from any other rules or regulations for that matter (other than the 1981 voluntarily guidelines).

While the term “model aircraft” was not defined, the Notice indicated that the model aircraft exemption would not be available to “persons or companies for business purposes”. So I could, for example, fly my own camera-equipped drone to my heart’s content without, apparently, creating a threat to air traffic – but as soon as I try to sell any of the photos/video I take, I’m a big threat. The FAA has not explained exactly how a commercial transaction on the ground renders otherwise unthreatening activity threatening.

More recently the FAA has established some webpages (here and here and here) and issued some cease-and-desist letters in which it reiterates, still with no explanation, that commercial use of drones is not permitted without express FAA approval. (One of the FAA’s webpages warns that there is “no gray area” about commercial drone – apparently in response to a photographer from the Spokane Spokesman-Review who asserted that use of a UAS to capture a minute long video of a local New Year’s Day Polar Bear Plunge was “not illegal, but currently in a gray area”.)

Two journalism programs (the Drone Journalism Lab at the University of Nebraska at Lincoln’s College of Journalism and Mass Communications, and Scott Pham, of the Missouri Drone Journalism Program at the University of Missouri’s School of Journalism ) involving drones have been told to “cease and desist” by the FAA. Both are in the process of applying for an experimental type permit to allow their use.

But the FAA’s restrictive 2007 policy lying at the core of its current anti-drone posture was not adopted pursuant to a formal notice-and-comment rulemaking, as required by the Administrative Procedure Act. Compliance with such requirements is important: failure to comply undermines an agency’s ability to implement policies it might like to.

And that’s what happened when the FAA’s effort to restrict drone use ran into a judge at the NTSB.

In the case of Huerta v. Pirker, one Raphael Pirker made a video from a model airplane he piloted. He confirmed that he was paid for video and photos taken during the flight. The FAA fined him $10,000 penalty for operating a UAS in a careless or reckless manner. Among his transgressions: operating without an FAA-issued pilot certificate in supposed violation of the 2007 policy against commercial drone use.

The case came before Patrick Geraghty, an NTSB administrative law judge. Pirker asked Geraghty to dismiss the FAA complaint, arguing, in effect, that he had violated no rules.

Judge Geraghty agreed with Pirker. According to Geraghty:

[A]t the time of [Pirker’s] model aircraft operation, . . ., there was no enforceable FAA rule or FAR regulation applicable to model aircraft or for classifying model aircraft as a UAS.

So while the FAA may talk a good game when it comes to drone regulation, all that talk appears to be unenforceable bluster.

For now, at least.

Congress has directed the FAA to develop regulations regarding the use of drones. (Side observation: If the FAA already had drone regs, why would Congress be ordering it to develop them?) But any such regulations are probably at least a year or two away: the first procedural step – a Notice of Proposed Rulemaking, a step the FAA should have taken in 2007 if it had wanted to apply its 2007 policy to be enforceable – isn’t expected until later this year, and that’s just the very start of the process.

Meanwhile, the FAA isn’t alone in looking at the issue. According to the National Conference of State Legislatures, 40 states considered drone legislation last year; 13 of them passed laws.

Plainly, there is considerable legislative pressure for drone regulation. Concerns range from air safety to personal privacy.

As to privacy, in an interview on CBS’s “60 Minutes”, Senator Dianne Feinstein (D-CA), a prominent proponent of drone regulation, described an incident in which, during a protest outside her home, she looked out a window and found a toy helicopter staring her in the face. Her response: there needs to be “regulation – perhaps regulation of size and type for private use. Some certification of the person that’s going to operate it . . . some specific regulation on the kinds of uses it can be put to.”

But she’s wrong.

We don’t need specialized regulation of drones to protect personal privacy. There’s already a huge body of law addressing invasion of privacy in the newsgathering context. Reporters and others aren’t allowed to harass the subjects of their stories; they can’t use electronic enhancement devices to get into private places where they wouldn’t otherwise be allowed. Existing laws and court precedent can easily be applied to drones.

The safety and security of the airspace are obviously valid concerns. Regulations can permissibly protect those interests, but to the extent that newsgathering is involved, the First Amendment requires that any such restrictions be narrowly tailored to achieve those goals and only those goals. The sky must remain free to the greatest extent possible.

In my view, we don’t need extensive regulations that will inhibit the use of this new and useful – and, frankly, really cool – technology. Quite the opposite. Properly focused regulation may actually make us safer, more secure and better informed in the long run. 

How? Contrast my opening example from Seattle with another sadly tragic example: last month there was an explosion in Harlem. It was too dangerous to send reporters close to the blast scene. But the public – local and national – was given first-hand information when an individual flew his drone right up to the blast site.

No planes fell from the sky. No investigations were disrupted. No privacy was breached. No one was hurt. Importantly, the public was informed.

This is the future of reporting. Not just for breaking news but for documentary coverage, environmental analyses, sports, pretty much everything.

There are implications for entertainment, travel and other businesses as well. Real estate agents in the United Kingdom use them to provide better views of high-end properties to prospective buyers. Movie and video production studios use them to shoot creative angles and sequences. Innovative and interesting uses regularly occur – without incident – outside the continental United States.

Mind you, I’m not advocating that every news station in the country forego the traditional traffic helicopter. But some might want to take advantage of a readily available alternative by using drones to capture images that reporters can’t otherwise safely access; that should be their choice. Yes, there should be restrictions in the name of safety and privacy, but they should be viewed in the traditional First Amendment context and, therefore, applied only in very limited circumstances.

It’s not that hard. It’s not unsafe. We should take this opportunity to reflect on these tragedies and understand how to avoid them in the future.

Either way, I’m now intrigued enough by this issue to continue following future developments. So please feel free to check back to see if any occur.