Judge Patrick Geraghty, an Administrative Law Judge for the National Transportation Safety Board issued a stunning ruling last month that would effectively overturn the Federal Aviation Administration’s ban on “drones.” Judge Geraghty was the judge in the case of Huerta v. Pirker, in which Raphael Pirker was the recipient of a hefty civil fine for using a model aircraft to take images of the University of Virginia campus. (The Pirker case was discussed in a previous e-alert from Larkin Hoffman.) 

The FAA attempted to argue that FAA regulations apply to anything that flies, including model aircraft. However, Judge Geraghty found that the FAA’s attempt to draw the definition of “aircraft” to something other than a crewed aircraft was not supported by the text of the relevant statutes, and was unduly broad. As the Judge wrote:

To accept [the FAA’s] interpretive argument would lead to a conclusion that those definitions include as an aircraft all types of devices/contrivances intended for, or used for, flight in the air. The extension of that conclusion would then result in the risible argument that a flight in the air of, e.g. a paper aircraft, or a toy balsa wood glider, could subject the “operator” to the regulatory provisions of FAA Part 91, Section 91.13(a).

Further, the Judge found that the policy notice issued by the FAA that banned the use of drones for commercial purposes was not passed through the notice-and-comment rulemaking process as required under federal law, and was therefore not binding.

The FAA has pursued an appeal before the entire National Transportation Safety Board, which has the effect of staying Judge Geraghty’s ruling pending review.

Judge Geraghty’s decision has not stopped the FAA’s attempts at enforcement. Recently the Washington Nationals baseball team used a drone to take videos and still images of one of their spring training games. The FAA has threatened to fine the team. Even though the Washington Nationals issued the rejoinder that their baseballs fly higher than any drone, the FAA is unlikely to back down from its position despite the Judge’s ruling.

While the FAA maintains that drones may not be used for commercial purposes without authorization by the FAA, that position is becoming less and less tenable both legally and practically. The market for unmanned aviation both in the United States is growing as more and more practical uses for civilian drone technology emerge. The FAA’s outright ban on commercial use has already been given a black eye in court, and may end up being overturned in its entirety. It is inevitable that some rules will be put into place governing commercial operation of drones in US airspace. However, the FAA’s attempt to enforce a ban by what Judge Geraghty found to be little more than administrative fiat may be unworkable. The FAA and the nascent commercial drone industry will have to find common ground to balance the needs of commercial drone companies and users and the safety of our national airspace.