FAA Scrambles to Cover Its Tracks

This report on gigaom.com is the best summary I’ve read to date on why the FAA has been forced to scramble for a way out of the box that it has created for itself:

The FAA is in a pickle. For years, the aviation regulator dragged its feet on rules for unmanned aircraft. Now the skies are filling up with a new generation of lightweight consumer drones that are proving popular with everyone from photographers to journalists to search-and-rescue teams — and the FAA doesn’t have the legal tools to deal with them.

That pretty well sums it up. My only quibble with the article comes from this sentence:

The FAA’s current predicament is rooted in an administrative judge’s surprise ruling last fall that the agency had no authority to fine a man $10,000 for using a drone to take photographs for the University of Virginia.

The ruling wasn’t a surprise at all, at least not to us and others who followed the issue closely. As the article subsequently points out, the FAA was trying to enforce a policy statement; it has never issued enforceable regulations governing the use of model-type aircraft. Having failed to do so, and having had its ass handed to it by an administrative law judge of the NTSB, the FAA has resorted to trying to bully a growing industry.

The FAA has now seized on language from the FAA Modernization and Reform Act of 2012 which carves out an exception for model aircraft to its mandate for the FAA to promulgate regulations governing unmanned aircraft systems by 2015. But as the article and commenters like Brendan Shulman point out, the Act’s model aircraft exception was intended by Congress to apply to regulations that the FAA has yet to promulgate. The best the FAA can hope to accomplish is to establish a definitional boundary for those regulations, once they have been issued (but even that definitional boundary seems arbitrary and capricious, since there is no meaningful distinction between someone who operates a line-of-sight, model-type aircraft for commercial purposes vs. recreational purposes).

The industry has been desperately waiting for the FAA to do its job and create a framework for the operation of UAS vehicles. Unfortunately, the FAA has chosen the path of lawlessness.