FAA's Commercial Drone Ban Shot Down by Admin. Law Judge

By Brett Snider, Esq. on March 07, 2014 | Last updated on March 21, 2019

The FAA's ban on small commercial drones was struck down by a federal administrative law judge on Thursday, possibly green-lighting the use of drones without regulation.

National Transportation Safety Board Judge Patrick Geraghty ruled that the Federal Aviation Administration couldn't enforce its policies on commercial drones because it hadn't followed the proper rulemaking process, reports Politico.

With this rule shot down and nothing to replace it, are commercial drones free to fly the skies?

Drone User's $10K Fine Dismissed

In a case titled Huerta v. Pirker, Raphael Pirker was appealing a $10,000 fine issued by the FAA over the use of a commercial drone over the University of Virginia. Pirker had allegedly been paid to use the drone to take video, but he maintained that the federal regulation he was fined under didn't apply to "model aircraft."

Judge Geraghty tended to agree, noting that if "aircraft" meant anything that was intended for flight, those who fly paper airplanes would also be regulated by the FAA. As evidence, the judge mentioned a notice released by the FAA in 1981, advising model aircraft operators to comply with a separate set of standards (including the "no higher than 400 feet" rule).

However, the FAA attempted to issue new rules covering drones (also called "unmanned aircraft systems," or UAS), requiring any drone used for business purposes to have a special certification to be flown -- at any height. But these drone rules were published as either as internal guidance or a "Notice of Policy," which aren't necessarily binding on the public.

New federal rules need to follow a specific procedure under federal law if they are to be valid. And since the FAA didn't do so with its commercial drone rules, the NTSB judge threw them out.

Is It the Year of the Drone?

Judge Geraghty's decision struck down the FAA's ban regarding model aircraft or small drones for commercial use, so for the moment, it may be the right, legal time for commercial drones.

Congress has pushed the FAA to make new rules (the right way) to address commercial drones, but the FAA's timeline places new commercial drone regulation somewhere in 2015. Meantime, commercial drones will still have to comply with the "400 foot rule" for model aircraft.

The case may be appealed, but as of Friday morning, Reuters reports the FAA was still reviewing the decision.

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