FAAs Policy Against Flying Commercial UAVs May Not Be Enforceable Law

For some time I’ve heard claims that the Policy of the FAA regarding Flying Commercial UAVs has legal issues. But recently I discovered a quote on rcgroups.com that give this claim a considerably more weight. Here is the quote:

I’m a lawyer and in a position to clear up a couple of things, for educational purposes.

1. The FAA is indeed pursuing a $10,000 assessment (fine) against Trappy of Team Blacksheep. This is public knowledge. See the current issue of California Lawyer magazine where it is discussed.  Many of the legal issues being discussed here are likely to be litigated. I have been retained by Trappy to defend the case.

2. Just because the FAA says something is “policy” does not make it an enforceable law. The FAA is merely a federal regulatory agency. They cannot just make up law as they go — they have to conduct a rulemaking process pursuant to the Administrative Procedures Act. And they have NOT done that for model airplanes. The 1981 advisory circular AC 91-57 is purely voluntary. The proposed regulations on unmanned aircraft (due in 2015) have not even been released for public comment. As a result, there are NO regulations prohibiting the flying of radio-control model airplanes for commercial purposes. You can find documents in which the FAA says commercial UAS flight is not allowed, including the one patrick egan and CenTexFlyer posted above. However, these kinds of “policy” documents are not actual regulations. Notice that the document Patrick and CenTex posted specifically says “This notice is subject to continuous review, will be updated when appropriate, is not meant as a substitute for any regulatory process.” (Paragraph 6)

The lawyer that made the comments above is apparently, Brendan Schulman, A commercial litigator at  the New York law firm, Kramer Levin Naftalis & Frankel LLP. Brendan is also a 20 year R/C model aircraft hobbyist and active UAV builder and pilot.

Both Brendan and Trappy (Raphael Pirker) of Team Blacksheep are going to be a speakers at the Drones & Aerial Robotics Conference (DARC) taking place in New York City October 11-13.

I’m going to do my best to follow The Trappy of Team Blacksheep vs FAA case because I expect this case could well set a legal precedence as to whether the current FAA policy restricting commercial UAVs is enforceable law. If Brendan and Trappy win their case against the FAA this would be a huge impact for anyone flying UAVs for real estate photography/videography. Stay tuned!

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