On March 6, 2014, a National Transportation Safety Board (NTSB) administrative law judge held that the Federal Aviation Administration (FAA) has not properly prohibited the use of unmanned aircraft systems (UAS). As a result, the judge dismissed an FAA enforcement action alleging that a UAS operator violated a Federal Aviation Regulation (FAR) pertaining to aircraft operations.

The basis for the decision is twofold. First, the judge stated that the type of UAS involved, a “model aircraft,” is not subject to the FAA’s aircraft operations regulations, because model aircraft do not fit within the FAA’s definition of the term “aircraft.” In support, the judge noted that the FAA has not historically required model aircraft operators to comply with its regulations. The judge also said that the FAA has not considered all types of flying devices to fall within the regulatory definition of “aircraft.”

Second, the judge observed that the FAA has not issued any regulations governing UAS. Although it has published multiple policy documents concerning UAS, the judge noted that these policy statements are not binding law because they were not issued in accordance with the requirements of the Administrative Procedure Act (APA) rulemaking process, which generally requires public notice and an opportunity for comment before a rule becomes effective.

Although the judge’s decision indicates that UAS operations are not prohibited, it does not mean the skies are open to commercial UAS just yet. Because the FAA has appealed the decision, it is stayed pending review by the full NTSB.

Moreover, prospective commercial UAS users should be wary of a few aspects of the decision, especially since the FAA is likely to fight hard to overturn the decision at all available levels of appeal. First, the decision indicates to the FAA that it can regulate UAS, but it must do so correctly and in accordance with pertinent statutes, such as the APA, meaning the FAA merely needs to codify its UAS policies in its regulations and follow the APA requirements. The FAA can accomplish this either in its proposed small-UAS rule, expected later this year, or a standalone rulemaking.

Second, the decision seems limited to “model aircraft,” a subset of UAS. From the outset of the opinion, the judge characterizes the UAS at issue as a “model aircraft.” Because the FAA and Congress have viewed model aircraft as limited to hobby or recreational use, the decision’s implications for commercial UAS are unclear.

Third, the decision involves a UAS operation that occurred before Congress passed the FAA Modernization and Reform Act of 2012, which specifically charged the FAA with issuing rules that will allow UAS operations. Thus, while UAS operations may not have been prohibited before the Act passed, there is an argument that subsequent operations generally are prohibited until the FAA issues a rule allowing them.