Impact of Pirker Decision Subject to Change
Proponents of UAS have seen the decision by the administrative law judge from the National Transportation Safety Board as permission to fly without any need for FAA oversight. However this is a simplification. First, the appeals process has not been exhausted. A close reading of the decision will show those in the know many places to legitimately criticize the judge’s decision. That doesn’t mean that the FAA will prevail, but the issues are not black and white, and thus subject to change, subject to the stamina of the parties to follow through in the avenues of appeal available to them.
Those who wish to fly UAS in the U.S. for commercial purposes are still at risk of facing disciplinary action. They can appeal those actions just as Pirker did. But that means being prepared to find a lawyer willing to serve as “guardian angel,” or committing resources and time to a defensive or offensive legal strategy to get out from underneath an official government sanction. The sanction, if applied to your business, must be clearly understood. It could possibly jeopardize the business (at least from an insurability point of view…but there are other points of view as well).
Much of this is occurring because the FAA hasn’t thought through its management of model aircraft fliers (a strong lobby which clearly has the ear of Congress) as well as foot-dragging in the process of legally acknowledging and regulating the existence and operation of UAS and recognizing how use of airspace is changing with the advent of UAS, long before the term UAS was even coined. Many agencies around the world charged with managing airspace are years ahead, maybe even a decade or more, ahead of where the FAA is. The foot dragging is well recognized by those who know the FAA. Many will state that this is common FAA mode. There probably are many reasons for this, some of them even good.
Timelines and mandates set by Congress seem to be translated by this agency into a “when we’ll get around to it” approach. Transparency is mostly missing. The FAA could have, upon passage of the 2012 Act, instead immediately report to Congress and the public that the timelines set by Congress are technically or humanly infeasible, but such conversations don’t appear to be deemed necessary. That approach breeds a variety responses by the public including contempt, derision and lack of respect for an agency that I would consider an important element in the introduction and management of unmanned airborne systems in the national airspace.
Until the courts reach a final conclusion that the FAA has or has no authority to regulate UAS operation, or Congress decides that a new agency has that responsibility, we must continue to look to the FAA for the rules on how to operate UAS. Not doing so can solve a lot of short-term headaches in navigating the current bureaucratic process and current restrictions on lucrative business activity, but it has the appearance of taking the law into one’s own hands. Furthermore, those who professionally operate aircraft, whether manned, model or UAS will mostly agree, undisciplined use of the airspace, with no “rules of the road” will lead to chaos at best and tragedy at worst.