Brendan Schulman v. the FAA- page 2 | A&S Interview | Air & Space Magazine
Schulman with some of his model aircraft, including a quadcopter. (Dara Horn)

Brendan Schulman v. the FAA

A drone enthusiast doesn’t think the agency should pick on his fellow fliers.

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(Continued from page 1)

Back in 2007, when the agency first considered the potential use of unmanned aircraft systems in the United States, I think everyone had in mind the very large, high-altitude Predator drones or Global Hawk drones that were flying in the same airspace as manned aircraft and were large enough to pose hazards to those aircraft. And today the technology is not at all like that. The value of these civilian drones is at very low altitudes: using lightweight equipment such as quadcopters and Styrofoam flying wings with cameras or other sensors. Most of the use of this technology is going to be maybe a hundred to two hundred feet off the ground, where if it’s cinematography you’re filming movie scenes. If it’s farming, you’re flying just above crop level. If you’re inspecting oil and gas or electric infrastructure, you’re flying low. So there’s a conceptual problem here: The agency started off almost a decade ago conceiving of this technology as the same thing as a [manned] aircraft but these are low-altitude, lightweight flying robots.

What do you think was behind the FAA’s 2007 policy to not allow unmanned aircraft to be used for commercial purposes?

I think at the time the agency wanted to buy itself some time to figure out what to do. That was perfectly reasonable then. The problem is that it’s been almost a decade, and the proposed rules have yet to be issued.

How did you go about defending Mr. Pirker?

Well, the decision only considers whether there is a regulatory basis to impose a penalty on the operator of a model aircraft. The specific model is named in the complaint: It’s a Ritewing Zephyr, which is a Styrofoam flying wing that weighs less than five pounds once fully equipped with motor and batteries. There’s no definition anywhere in the regulations of unmanned aircraft systems. There’s also no definition in the regulations of model aircraft. It’s a completely unregulated technology. So what we argued in the case was a motion to dismiss. The first step of a legal proceeding is an opportunity to get the case thrown out on the basis that even if what the FAA is saying is factually true, there’s no legal basis to impose the penalty. So we made a motion on the basis that there’s no regulation concerning model aircraft or a commercial drone. That the 2007 policy statement that purports to regulate model aircraft as if they are unmanned aircraft systems, is just a statement of policy, which is not binding as a regulation. Regulations have to go through a notice-and-comment rulemaking process, and that has not yet been done as to unmanned aircraft systems.

So it’s inappropriate legally to impose any kind of penalty—remember this is a federal penalty—to impose any kind of aviation-related federal penalty upon the operator of a model aircraft, whether it’s for business purposes or otherwise. So that was the legal argument that we made, and it’s the one that the decision was premised upon: the finding that our argument was correct. That the ban on commercial use is only an unenforceable, non-binding policy statement. That there are no regulations concerning the operation of model aircraft, and therefore that the FAA cannot penalize somebody for the operation of that device until it has regulations in place.

So you’re saying that there’s no legal foundation for the FAA’s case?

That’s right.

And what is the current status of the case?

What the judge’s position says is that if you’re going to make this substantive binding rule that the public is expected to follow, you need to engage in the appropriate rule-making process, which includes providing notice to the public and an opportunity for the public to comment on the proposed rule. The FAA has issued a notice of appeal, which indicates that they intend to appeal the decision.

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