Once Again, A Federal Judges Has Ruled That The FAA Cannot Stop The Use Of Commercial Drones Unless They Are Enforcing Published Regulations ... The FAA Has A Differing Opinion

Earlier this year ANN published a story about Texas EquuSearch, a nonprofit organization that helps local authorities search for missing persons. Texas EquuSearch had begun using drones to enhance their search ability in remote areas and rough terrain. The FAA had notified Texas EquuSearch by e-mail that their use of a drone was in fact a commercial operation and they were not allowed to do it under the threat of fines levied by the FAA.

In the appeals court finding, the judges wrote, in part, “The email at issue is not a formal cease-and-desist letter representing the agency's final conclusion that an entity has violated the law. The [FAA] employee did not represent the consummation of the agency's decision making process, nor did it give rise to any legal consequences."

It appears that the judges ruling was based on the fact that the email threatened a fine for violating a regulation that doesn’t actually exist. It would seem obvious that threatening action for violating a regulation that doesn’t exist cannot be held up in our legal system, but if it wasn’t obvious before this ruling, it should be now.

It is our understanding that Texas EquuSearch will put the drone back into use. It will be interesting to see how this ruling affects other drone operations for private and commercial purposes. The FAA is under congressional mandate to come up with a plan for integrating unmanned aerial systems (UAS) and to the national airspace system. However, as was reported by ANN earlier this month, the FAA is not likely to meet the congressional requirement within the time requirement specified.

In a statement, the FAA said the court’s decision has no bearing on the FAA's authority to regulate UAS In fact, they say the decision favors the agency.

"The FAA remains legally responsible for the safety of the national airspace system. This authority is designed to protect users of the airspace as well as people and property on the ground.

"The agency approves emergency Certificates of Authorization (COAs) for natural disaster relief, search and rescue operations and other urgent circumstances, sometimes in a matter of hours. We are not aware that any government entity with an existing COA has applied for an emergency naming Texas EquuSearch as its contractor.

"The Court found that the FAA’s inspector’s email to Texas Equusearch was “not a formal cease-and-desist letter representing the agency’s final conclusion … sufficient to constitute final agency action” for purposes of review in the courts of appeals. The Court found that “given the absence of any identified legal consequences flowing from the challenged email, this case falls within the usual rule that this court lacks authority to review a claim where an agency merely expresses its view of what the law requires of a party, even if that view is adverse to the party.”

The FAA says, however,  that Texas Eqqusearch and all UAS operators "need to be aware that the FAA’s safety mandate requires it to regulate aircraft operations conducted in the National Airspace System (NAS) to protect persons and property on the ground and to prevent collisions between aircraft and other aircraft or objects.

"A UAS is an “aircraft” as defined in the FAA’s authorizing statutes and is therefore subject to regulation by the FAA.  49 U.S.C. § 40102(a)(6) defines an “aircraft” as “any contrivance invented, used, or designed to navigate or fly in the air.” The FAA’s regulations (14 C.F.R. § 1.1) similarly define an “aircraft” as “a device that is used or intended to be used for flight in the air.”  Because an unmanned aircraft is a contrivance/device that is invented, used, and designed to fly in the air, it meets the definition of “aircraft.” The FAA has promulgated regulations that apply to the operation of all aircraft, whether manned or unmanned, and irrespective of the altitude at which the aircraft is operating. For example, 14 C.F.R. § 91.13 prohibits any person from operating an aircraft in a careless or reckless manner so as to endanger the life or property of another.

"An important distinction for UAS operators to be aware of is whether the UAS is being operated for hobby or recreational purposes or for some other purpose. This distinction is important because there are specific requirements in the FAA Modernization and Reform Act of 2012, Public Law 112-95, (the Act) that pertain to “Model Aircraft” operations, which are conducted solely for hobby or recreational purposes."

FMI: http://texasequusearch.org, www.faa.gov