FAA “looks into” commercial drone use while Texas group seeks D.C. Circuit review of FAA drone policies.
A couple of weeks ago we reported on the FAA’s efforts to discourage the use of drones a/k/a “Unmanned Aircraft Systems” (UAS) a/k/a model aircraft. We have a couple of updates on that front.
First, in the aftermath of the recent spate of tornadoes that ripped through the South, it’s been reported that the FAA is investigating a “storm chaser and videographer” who used a drone to document the effects of a tornado in Arkansas. The captured images were apparently used by a Little Rock TV station in its coverage of the storm damage. According to a report in the Arkansas Democrat-Gazette, the FAA “is looking into” the station’s use of the drone-acquired footage. (The report also indicates that other Arkansas stations are using drones, although whether the FAA is “looking into” their drone use is not clear.) Since post-storm damage assessment is a use for which drones are especially well-suited – a use which reduces the need for exposing additional personnel to potentially dangerous circumstances – the FAA’s vaguely menacing consideration of that use seems a bit churlish.
But if you really want churlish, check out our second update.
For several years, the Texas EquuSearch Mounted Search and Recovery Team (EquuSearch) has coordinated volunteer searchers in search-and-rescue missions on behalf of the families of missing persons. According to EquuSearch, they are a 501(c)(3) non-profit organization that relies on volunteers and does not charge families for the searches it performs. For nearly a decade EquuSearch has used camera-equipped model aircraft in its efforts with, apparently, considerable effectiveness.
Last February, an EquuSearch volunteer informally inquired of an FAA official whether the agency’s policies on the use of drones for search-and-rescue missions had changed. In an email, the FAA rep responded that unauthorized drone operations “violate part 91 (and some others) and hence are illegal.” Noting that the volunteer held a certificate of authorization (COA) from the FAA to operate only in a particular, prescribed area, the FAA cautioned that
if you are operating outside of the COA provisions, stop immediately. That is an illegal operation regardless if it is below 400ft AGL, [operating within visual line of sight] or doing volunteer [search and rescue].
Apparently no good deed goes unpunished (or at least unthreatened).
Understandably concerned, EquuSearch called that email to the attention of the FAA’s Chief Counsel in Washington and asked that the directive to “stop immediately” be rescinded within 30 days. Not surprisingly, the FAA didn’t bother to respond within that 30-day period, so EquuSearch has filed a Petition for Review with the U.S. Court of Appeals for the D.C. Circuit.
On the one hand, inviting the D.C. Circuit to the party may be a good thing: the FAA seems dead-set on attempting to enforce non-existent rules, so alerting the courts to this sooner rather than later may be helpful.
On the other hand, the facts underlying the EquuSearch case may not focus all the pertinent issues. Even if the Court opts to consider EquuSearch’s petition on the merits, it may not have to reach the legality of the “commercial/noncommercial” component of the FAA’s policy because, presumably, any supposed ban on commercial drones could not be validly applied to a noncommercial use such as EquuSearch’s.
There’s also the problem of the nature of the “order” that EquuSearch is trying to get reviewed. While the FAA rep’s email is clearly emphatic (“stop immediately”), it doesn’t look much like an official agency action. (F’rinstance, the email in question is signed off with “Best wishes”. When was the last time you saw an official order signed off like that?) Under the given circumstances, EquuSearch might have been better off asking the Court for an extraordinary writ (e.g., mandamus or prohibition) to put a stop to the FAA’s apparently extra-legal activities. While such a request could have relied on the FAA email (and other available materials reflecting the FAA’s recent anti-drone efforts), it would have been directed not just against the one email, but more broadly against the FAA’s overall approach.
Of course, if the Court does delve into this matter as a result of the EquuSearch petition, the end result may be the same. We shall see. Check back here for updates.
