On March 5, an NTSB law judge reversed the FAA's imposition of a $10,000 penalty against an individual for illegally operating an Unmanned Aircraft System for compensation. The basis of the decision was that an FAA Policy Notice/Statement prohibiting such operations is non-binding and does not provide a jurisdictional basis for the FAA to exercise regulatory powers, including civil penalties. The bottom line is that the FAA, in the burgeoning area, was found to have gotten ahead of itself by interpreting its existing rules as covering UASs.
The FAA should view this as a signal to get busy and issue rules, emergency or otherwise. Simply stated, whether the decision is right or wrong, is irrelevant. UAS technology is well along, but there is essentially no regulatory structure to insure that it proceeds safely.
The FAA is, in my experience, one of the most effective government regulatory bodies in the oft criticized federal bureaucracy. Working with the industry, including operators and manufacturers, we have the best and safest airspace system in the world. Because UASs are flyable out of the box and everyplace is an airport, they pose a threat, to both other aircraft, as well as persons and property. Whether the FAA has moved too slowly or not is, frankly, irrelevant. A single decision by a single administrate law judge has, whether you agree or disagree, put form over substance.
This should serve as a wake-up call to end any consideration by the FAA regarding further postponements of its rulemaking. In fact, exigent circumstances now exist for an emergency rulemaking to insure that we don't lose sight of the fact that it's not about UASs and any single individuals right to fly a UAS. Responsible individuals and organizations won't view this decision as a "free pass" to get out there and start flying. Unfortunately, there are enough people out there who won't see it this way and will utilize this decision as a means of trying to get publicity. Let's hope they don't injure or kill someone in their rush to exercise their rights.
It's about aviation safety and insuring it's future.
Dombroff, a partner at the international law firm McKenna Long & Aldridge, concentrates his practice on the aviation industry, including litigation, regulatory, administrative and enforcement matters, security, National Transportation Safety Board (NTSB) investigations and employee related issues.