Appeal of UAV ruling pressures FAA to establish rules


Peter Corbett, The Arizona Republic

Operators of small, unmanned aircraft cheered a judge’s ruling last week that came down in favor of the remote-controlled lightweight planes.

But the celebration of the closely watched case was short-lived as the Federal Aviation Administration appealed the ruling. That action, a day later on Friday, preserved the status quo and left commercial operators of unmanned aircraft still legally grounded.

“Lots of people on social media and bloggers were saying that they could fly whatever they want, wherever they want,” said Richard Jost, an attorney specializing in unmanned-aircraft regulation. “Clearly that was an overstatement.”

The legal skirmish has focused a bright spotlight on the FAA and turned up the pressure for the federal agency to establish rules for controlled use of unmanned aerial vehicles or UAVs.

The FAA in late February and early March issued statements to debunk myths about its UAV regulations and update its forecast of commercial use of UAVs. The agency three years ago expected 30,000 UAVs by 2030 but has lowered that figure to 7,500 by 2020.

Congress has ordered the FAA to set new UAV rules by September 2015 but many observers expect the agency will not meet its deadline.

Currently operators of small UAVs or radio-controlled model planes flying below 400 feet can do so only for non-commercial uses, according to FAA operating standards spelled out in a 1981.

That was decades before UAV operators saw the potential for aerial photography, crop-dusting and dozens of other commercial uses already permitted around the globe.

UAV operators, including real-estate photographers in the Valley, have defied the FAA rules.

It’s unclear how long a ruling on the appeal could take. But any delay increases the risk that a UAV operator, uncertain about the regulations, causes a tragic accident, said Jost of Fennemore Craig Jones Vargas in Las Vegas.

Already, a wedding photographer in Wyoming last summer crashed his quadcopter into a groom’s face during a rehearsal two days before the ceremony, causing minor injuries.

The UAV test case involves a 2011 FAA action against Ralph Pirker, who was paid to take aerial images of the University of Virginia campus. The agency alleged that Pirker violated the commercial ban on UAVs and also flew his aircraft recklessly.

Patrick Geraghty, a National Transportation Safety Board judge, struck down the FAA’s $10,000 fine of Pirker and ruled that the agency had no effective rules in place to govern model aircraft at the time of Pirker’s flight.

In announcing its appeal, the FAA said it “is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.”

The full NTSB will review Geraghty’s ruling.

Pirker’s attorney, Brendan Schulman, called the ruling a victory for technology.

“It establishes that the federal government must engage in the proper rule-making process, including consultation with the public and interested constituents, before placing burdensome rules and restrictions on emerging new technologies,” he said.

Michael Toscano, president and CEO of the Association of Unmanned Vehicle Systems International, said the judge’s decision “underscores the immediate need for a regulatory framework for small (UAVs).”

Unmanned-aircraft operator Stephen Rayleigh of Prescott said he hopes to see the FAA set its rules for small UAVs by the end of this year.

A UAV instructor at Embry-Riddle Aeronautical University, Rayleigh was hired in late December to do aerial photography of typhoon storm damage in the Philippines using his 10-pound plane. It is work he could not legally do in the United States for pay.

The Pirker case has put pressure on the FAA, but as a UAV operator Pirker is widely known as a daredevil who pushes the limits, Rayleigh said.

Jost, the Nevada attorney, said the FAA’s rules are not clearly spelled out.

“We have lots and lots of terms that could have been better defined,” he said. “That unfortunately is the status quo that has been locked in during this appeal.”

Jost and his law-firm partner, Joe Brown, were in Scottsdale a week ago for a discussion of UAV legal and business issues at an aerospace and defense industry conference.

Fennemore Craig Jones Vargas was hired by the Nevada Institute for Autonomous Systems, a non-profit group overseeing UAV testing at a variety of airfields in Nevada.

The FAA in December selected Nevada for one of six UAV sites that will be used to develop its regulations. Arizona’s bid for a test site failed.

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