Just shortly after Amazon.com CEO Jeff Bezos announced his plans to use remotely-piloted “drones” to deliver packages, the Federal Aviation Administration has announced that it has chosen six test centers to begin the process of integrating these small unmanned aircraft into the national airspace. The North Dakota Department of Commerce, Griffiss International Airport in New York, Virginia Tech, Texas A&M University – Corpus Christi, the State of Nevada, and the University of Alaska have been selected among many applicants to host the first testing facilities. Meanwhile, before the National Transportation Safety Board, a drone enthusiast is challenging the FAA’s jurisdiction over small drones like the ones proposed by Amazon.

Since 2007, FAA has taken the position that any commercial activity using unmanned aircraft of any size or at any altitude is banned by FAA regulations. In recent years, the FAA has shut down aerial photography companies, Los Angeles-area realtors, and anyone else using even model aircraft for commercial purposes.

Raphael Pirker is one of the founders of a group called “Team Black Sheep” that has been on the forefront of using a combination of RC aircraft and low-power video transmitters to send live video from an remotely-controlled aircraft in flight to a controller on the ground. In 2011 Pirker was flying a foam RC aircraft on the campus of the University of Virginia. The FAA cited him with a $10,000 civil penalty for violating both the ban on commercial drone usage and operating his 4.5 pound aircraft in a “in a careless or reckless manner.”

Pirker chose to fight the penalty, alleging that the FAA is without jurisdiction to regulate airspace below what is considered navigable by manned aircraft–generally airspace below 500 feet. In support of their argument, Pirker’s attorneys note several United States Supreme Court cases that grant property owners the rights to control the airspace immediately above their property up to the airspace that would be navigable by piloted aircraft. See, e.g., United States v. Causby, 328 U.S. 256, 264 (1946) (noting that landowners no longer had full property rights to all airspace above their property, but reserving some property rights immediately overhead). Further, Pirker and his attorneys allege that the 2007 ban is barred by the federal Administrative Procedure Act (“APA”) as it was put into place without the benefit of notice-and-comment rulemaking under the APA. Pirker has brought a motion to dismiss the FAA’s civil penalty, a motion that is currently pending before the NTSB.

If Pirker wins, it could invalidate the ban and allow companies such as Amazon to use small drones, so long as it is done below the navigable airspace. The FAA is taking the position that anything that flies is subject to the FAA’s regulations—but the pace of technology may outstrip the FAA’s ability to maintain such a strict regulatory regime. Drone technology is becoming increasingly less costly and easier to use. Commercial vendors are now selling GPS-enabled drones capable of lifting cameras for 25 minutes at a time and returning to their takeoff point autonomously, at a cost that is well within the budget of an interested hobbyist.

Jeff Bezos’ announcement of Amazon Prime Air represents a shot across the bow of a regulatory regime that portends to delay or even stifle a nascent industry, but Raphael Pirker’s little-noticed suit before the National Transportation Safety Board could portend a major change in the way this new technology is regulated, now and in the future.