A National Transportation Safety Board administrative law judge ruled that Federal Aviation Administration's (FAA) regulations do not prohibit the use of small drones for commerical purposes. While this decision may be appealed, this decision is a legal victory for farmers that want to use drones for agricultural applications.
Through policy statements, FAA has maintained the stance that small, unmanned aircraft are only legal for certain users, such as model aircraft hobbyists and researchers. It has posted guidance indicating that drone use for commercial purposes is prohibited until it implements regulations regarding commercial use. While FAA held the position that commercial drone use is illegal, it rarely enforced the ban.
In fact, the only person FAA charged with illegal drone use was Raphael Pirker. Mr. Pirker, is a Swedish drone operator that filed a commercial for the University of Virginia medical school. During the filming of the commercial, he allegedly operated the drone in an unsafe manner. In response to his actions, FAA attempted to fine Mr. Pirker $10,000 for unlawful drone operation.
Mr. Pirker challenged this penalty on the basis that there was no law preventing the use of drones for commercial purposes. The administrative judge agreed. The judge noted that FAA's prohibition on commercial drone use was based in a policy statement, not a regulation that complied with the requirements of the Administrative Procedure Act. The judge reasoned that FAA had no basis to ban the use of drones for commercial purposes absent a statute or regulation prohibiting their use.
This decision could open the skies to drone use earlier than FAA intended. The agency is required to finalize regulations permitting commercial drone use in 2015. It already intends to introduce proposed regulations on commercial drones by the end of the year. If FAA does not appeal this decision, or the decision is affirmed on appeal, then commercial drone operators are free to use unmanned aircraft within the parameters of existing law (below 400 feet, away from runways and flight paths, etc.).
Of course, this also means I will need to eat some crow. My recent Farm Journal article, "Drones and the Law," relied on the FAA's now-invalid guidance, which stated that commercial drone use was illegal. Given the great potential that drones pose for agriculture, it will not be too terribly hard to swallow.
John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer. This column is not a substitute for legal advice.