Drone technology has vast potential. Drones have already impacted recent wars, and their use in this arena continues to receive praise and criticism for both effectiveness and morality.  On the home front, drones could be utilized to accomplish many things more effectively and efficiently than current means; before long this will likely be a reality. For example, Dutch student Alec Momont is in the process of creating a drone for the purpose of heart emergencies. His drone design, capable of flying above traffic on the ground, may be able to reach people suffering from heart conditions faster than police and paramedics. The drone, assuming there is one close by, when triggered, would fly with onboard medical equipment to the emergency and then provide audible instructions for the equipment’s proper use. Although there still exists issues with the drone and its practicability, it is a noble and novel idea. Time is surely of the essence to people suffering from heart failure.

FAA projections indicate as many as 7,500 commercial drones may be in use by 2018, but in the United States the legality of drone use in many scenarios has yet to be resolved. The 2012 FAA Modernization and Reform Act requires the Federal Aviation Administration (FAA) to create a “comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace” by September of 2015. Until then, the FAA has approved drone use on a case by case basis. Recently certain companies were permitted by the FAA to use drones to record films on Hollywood sets. The authorities have more discretion to use drones domestically and, for example, have done so to patrol U.S borders.

But at the moment what authority does the FAA have over drones? The FAA is actually not yet acting under any formal rules that call for regulating drones, so the FAA has used informal letters and emails to tell drone users to halt operations. In several instances the FAA has sent cease-and-desist letters to those flying drones for what they define as “commercial purposes.” In April 2014, Texas Equusearch, a non-profit search-and-rescue organization, filed a petition for review in the federal district court in Washington, D.C., alleging that the organization received a cease-and-desist letter from the FAA. The agency contacted them by way of email, ordering Texas Equusearch to “stop immediately” its rescue efforts with drones because they are “illegal.” The Court’s order granting the motion to dismiss the petition found that there was “an absence of any identified legal consequences flowing from the challenged email.” The court explained that it lacked authority to review claims “where ‘an agency merely expresses its view of what the law requires of a party, even if that view is adverse to the party.’” Indep. Equip. Dealers Ass’n v. EPA,372 F.3d 420, 427(D.C. Cir.2004) (quoting AT&T v. EEOC, 348 U.S. App. D.C. 149, 270 F.3d 973, 975 (D.C. Cir. 2001)). Subsequently, Texas Equusearch continued their operations as normal because the email had no legal ramifications; it was merely a warning that purported to have legal force.

In sum, many users have been quietly disregarding the FAA’s informal letters by flying drones for such things as farming, construction and other uses. So, as it stands now, the drone industry is simmering behind the scenes and awaiting federal regulation slated for 2015.

Joshua Sureck

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One Response to Domestic Drones – An Industry Waiting in the Wings

  1. Neil Issar says:

    Even if the FAA comes up with legally binding regulations, will they realistically be able to enforce them? Given how cheap it is to get a small UAV these days, I find it hard to believe that the FAA would suddenly threaten legal action against every local farmer operating a drone for crop management or anyone using a drone for flyover photography. I say this because WSJ reports of the FAA’s impending commercial drone use regulations appear to be quite onerous – requirements for flights to occur within daylight hours, rise no higher than 400 feet above the ground, and to remain within the sight of the person controlling the drone, and some talk of drone operators requiring a commercial pilot’s license and training. Without a comprehensive enforcement scheme, it seems like such stringent regulations would only incentivize small business owners to “quietly disregard” them (as you said) and continue their profitable drone activity. Moreover, since any formal rulemaking process will likely take a year or two, I believe small-scale commercial drone use will continue to bubble under the surface, regardless of whether the FAA’s informal actions are given greater effect by the courts.