commercial drone
(Photo by Eric Risberg / AP Photo)

In a groundbreaking case concerning the commercial use of drones, Kramer, Levin, Naftalis & Frankel’s Brendan Schulman fought off the Federal Aviation Administration’s first attempt to fine a drone pilot.

Schulman, head of Kramer Levin’s unmanned aircraft systems practice group, won a ruling on Thursday that knocked out a $10,000 fine the FAA had imposed on Raphael Pirker, a drone pilot who remotely flew a 56-inch foam glider to shoot aerial footage of the University of Virginia campus and hospital for an ad agency.

The FAA, which has long allowed model aircraft operators to voluntarily comply with suggested safety guidelines, has moved internally to classify drones being operated commercially as an “unmanned aircraft system” or “UAS.” The FAA claims that drones classified as such fall under its regulatory authority. In June the FAA filed an order of assessment imposing the fine against Pirker, claiming his glider was a UAS and that he operated it “in a careless or reckless manner so as to endanger the life or property of another.”

Kramer Levin’s Schulman shot back in a motion to dismiss the FAA’s case that the agency’s changing policy on drones violated the Administrative Procedures Act, which requires a valid notice-and-comment period before legislative rules are issued. “Both at the time of Mr. Pirker’s model aircraft operation in 2011, and still today, there exist no enforceable federal aviation regulations concerning the operation of civilian ‘drones,’ whether that operation is for commercial purposes or otherwise,” Schulman wrote.

On Thursday, Administrative Law Judge Patrick Geraghty at the National Transportation Safety Board in Denver sided with Pirker, finding that the FAA hasn’t issued enforceable regulatory rules governing model aircraft and has historically relegated model aircraft operations to voluntary compliance. Geraghty vacated the FAA’s penalty, writing that “there was no enforceable FAA rule or [federal aviation regulation] applicable to model aircraft or for classifying model aircraft as UAS.”

We caught up with Schulman on Friday and found out he’s a recreational model pilot himself. He has about 15 model aircraft. They range in size from one he can hold in the palm of his hand that sits on his desk to one he keeps in his garage that has a five-foot wingspan and flies at speeds up to 130 miles per hour.

Shouldn’t the FAA be able to regulate such aircraft, we asked?

“I think that issues about safety on the ground near people who are operating models have never been an issue of air transportation safety,” Schulman said. He says that he only flies his large plane at a dedicated model airplane club field and that the tort system in the U.S. provides plenty of incentive for hobbyists to operate their aircraft safely. “This is another consumer device that’s subject to the same negligence framework found elsewhere,” he says.

As to the decision, Schulman thinks the implications go well beyond a single fine stemming from a particular incident. “I think it’s meaningful in terms of the American legal system, because it says something about how the federal government should approach new technologies that emerge. Rather than banning a new technology for years, they should be encouraging entrepreneurship,” he says.

The FAA, if it chooses, can appeal Geraghty’s decision to the full NTSB and further to the U.S. Court of Appeals for the D.C. Circuit. We left a message for an FAA spokesman, but didn’t hear back about the agency’s plans.