In a Petition for Review filed on April 21, 2014, a non-profit volunteer search and rescue operation (Texas Equusearch) has challenged the authority of the Federal Aviation Administration (FAA) to regulate operation of small unmanned aerial systems (UAS), also commonly referred to as unmanned aerial vehicles (UAV) or drones.  This case follows on the heels of a recent decision by an administrative law judge reversing the issuance by the FAA of an Order of Assessment of a civil penalty against the operator of a small UAS who received payment for video and photographs taken during flight (Pirker).  The decision in the Pirker case is currently the subject of an appeal by the FAA.
The FAA cited Pirker for “operating an aircraft in a careless or reckless manner so as to endanger the life or property of another” in violation of FAR Part 91.13(a). According to the FAA citation, Pirker operated the aircraft towards individuals, through a tunnel, over a walkway under trees, from 10 and 1,500 feet above ground level, close to buildings, above an active street and in other manners the FAA determined were reckless or endangering of life and property. Interestingly, the FAA did not cite Pirker for operating the aircraft without an FAA issued certificate of authority. In his decision, the administrative law judge made the following general findings:
- Applicable regulatory and statutory definitions of “aircraft do not include model aircraft.”
- Pirker’s operation of model aircraft was subject only to voluntary compliance with the Safety Guidelines stated in the FAA’s Advisory Circular 91-57(Model Aircraft Operating Standards).
- Certain FAA policy notices issued in 2005 and 2008 regarding UAS operations and model aircraft did not establish a jurisdictional basis for FAA enforcement authority (under Federal Aviation Regulation Part 91) over model aircraft the same as normal aircraft operations.
- An FAA policy notice issued in 2007 that provided specific authority is required for a UAS to operate in the national airspace system was merely “policy” or an invalid attempt at legislative rulemaking (i.e., without compliance with required rulemaking procedures).
- At the time of Pirker’s operation of the UAS, there were no enforceable FAA regulations applicable to model aircraft or classifying model aircraft as a UAS.
The facts of the Texas Equusearch case are similar to Pirker in some limited respects, yet involve a different twist. Texas Equusearch is a non-profit entity that coordinates volunteer searches on a multi-state and international basis. According to the Petition for Review, since 2005 it has utilized one specific technological innovation, a model aircraft equipped with a camera, operating under 400 feet. The aircraft weighs under 5 pounds and is comprised of foam and plastic with a battery powered motor and it is alleged that it is controlled within line of sight of the operator.
Unlike the Pirker case, an Order of Assessment of civil penalty had not yet been issued against Texas Equusearch. However, in response to an inquiry from Texas Equusearch, an Aviation Safety Inspector set forth the FAA’s general policy towards operations of a UAS without a Certificate of Authority (COA) or an Emergency Certificate of Authority (ECOA) when operating outside of prescribed space authorized in an existing COA. Specifically, it was stated that such operations would be illegal and should stop. (It was also noted in the FAA letter that proposed regulations concerning small UAS operations were due to be issued for public comment by the end of the year, but acknowledged that such predictions have failed before.)
Texas Equusearch filed their Petition for Review in effect alleging that the FAA letter constituted an order to cease and desist resulting in an immediate and significant impact upon their operations, and that no legal basis existed for “the FAA to prohibit operation of a model aircraft for volunteer search and rescue efforts.” The arguments advanced in support of their position are summarized as follows:
- The FAA has never issued a regulation concerning model aircraft operation, only a volunteer guidance on “Model Aircraft Operating Standards” in 1981, “with no distinction between hobby purposes and model aircraft flown for other purposes,” nor indicating that any other “regulations, such as those relating to pilot certification or airworthiness are applicable to radio-control model aircraft.”
- Although in 2007, the FAA declared in a policy memorandum that aircraft may not be operated “by persons or companies for business purposes,” this was issued as a policy statement and not legally binding in that it did not comply with required notice and comment rulemaking process.
- Texas Equusearch is a non-profit charity and falls outside the scope of FAA restrictions in that it does not use the model aircraft for a commercial purpose.
- Its purpose is purely humanitarian.
- It is operated by an unpaid volunteer.
- There are no charges to families.
It will be interesting to see how the foregoing arguments are further developed by Texas Equusearch and contested by the FAA as this case progresses before the court.
Needless to say, as the public demand for UAS operations increases, there will be continuing pressure upon the FAA to fulfill its mission regarding safety of the national airspace system, yet timely address and propose appropriate regulations in order to resolve the currently ambiguous and contested regulatory environment for developing commercial UAS operations. In the meantime, and prior to commencement of any such operations, one contemplating the use of UAS in the United States national airspace system should seek legal advice regarding the implications of, and future developments in, both of these cases and corresponding policies and regulations that may be issued by the FAA.
For more information regarding a summary of the FAA’s policies and position regarding integration of UAS into the national airspace system, see Commercial Use of Unmanned Aerial Systems? Are they legal?
David Agee is leader of the Husch Blackwell Aviation Practice Group and co-leader of the UAS/UAV Team, which is comprised of a number of attorneys from different industry groups and disciplines, including aviation, agriculture, technology, manufacturing, transportation, intellectual property, litigation, insurance, corporate, regulatory, taxation and several others.
 Texas Equusearch Mounted Search and Recovery Team, RPSearch Services, Inc., and Eugene Robinson, Petitioners v. Federal Aviation Administration, Respondent, pending before the United States District Court for the District of Columbia Circuit, Case No. 14-1061.
 Decisional Order of Patrick G. Geraghty, Judge, entered March 6, 2014, in the case of Michael Huerta, Administrator, Federal Aviation Administration, Complainant, v. Raphael Pirker, Respondent, Docket CP-217, before the United States of America National Transportation Safety Board Office of Administrative Law Judges.