It’s now legal to fly a model aircraft for non-recreational use in the United States without authorization from the Federal Aviation Administration. That much is certain, given that a federal judge has ruled the FAA doesn’t have adequate regulations to cover small, low-flying, unmanned aircraft.
In FAA v Pirker, a National Transportation Safety Board judge determined the federal agency’s current rule regarding small drone use is “non-binding” or an “invalid attempt of legislative rulemaking.” (pdf)
Central to the judge’s decision was title 5, section 553 of the US code, which describes the rulemaking procedure by which the FAA must abide. Here, the law states that the FAA must publish a “general notice of proposed rule making” in the Federal Register.
Then, the FAA “shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” The FAA must consider these public comments before making final rules.
The FAA has failed to do any of this in their effort to regulate small unmanned aircraft, and the agency has fallen behind numerous deadlines to make this possible. All the while, countries such as Canada, Australia, and the United Kingdom have enjoyed policies that have opened the skies to journalists while keeping citizens on the ground safe.
As the FAA doesn’t yet have valid regulations regarding small drones, this ruling is potentially a huge step for commercial and noncommercial drone use in the US. However, this likely is a short window of time in which commercial operators and journalists can fly. The FAA already has announced their intent to appeal the ruling.
In the meantime, it is paramount that American drone operators behave ethically and responsibly. Ian Hannah, the PSDJ Vice President, who is the owner and operator of Ontario-based Avrobotics, stresses the importance of safe operations.
“During this time we need to show how safe and professional our members and members of the drone community are, be cognizant of local laws, and follow the code of ethics that is at the heart of the PSDJ,” Hannah writes. “The delay in implementing an effective set of rules for sUAS has caused real potential danger, such as the thought that right now there seems to be no regulation on airspace below 400 feet.”
To be clear, since its inception in 2011, the PSDJ has advocated strict, clear, and fair regulations to ensure the safety of people on the ground and the legitimacy of our vocation. While a brief window for commercial and noncommercial drone use is welcomed, totally unregulated airspace is not in anyone’s best interest.
Furthermore, it is important to note that while US journalists might not be federally prohibited from flying drones at this time, barriers still exist at the state and local levels. In Texas, for example, it is illegal to use a drone to photograph a person or property without permission, even if the person is in plain view on public land. (pdf)
The law specifies drone photography is illegal when the intent is “to conduct surveillance,” but as the National Press Photographer’s Association has argued, this language puts drone journalists at risk. Texas included many exemptions for law enforcement and researchers in their bill, and came close to exempting journalists, but left out any protections for journalists in the final bill.
And in Connecticut, PSDJ member and professional photographer Pedro Rivera was ordered to land his small drone and leave the scene of a fatal car accident. Police then called his workplace, and Rivera was suspended without pay for a week. The PSDJ supports Rivera’s lawsuit against Hartford police.
The FAA’s inability to create timely, legitimate regulations has led to this situation. As the law firm Holland & Knight writes, "this decision may accelerate the FAA’s efforts to integrate commercial use of drones into the national airspace."
We also believe that is the case, and hope that the resulting regulations strike a proper balance between access to the skies and public safety.
President and Founder,
Professional Society of Drone Journalists