Feb 4 2014, 8:47am CST | by Forbes
A Minnesota beer company had two ideas: one good and one brilliant. The good idea was to deliver beer to ice-fishers by drone; an ice-shack dweller would call in his or her GPS coordinates to which the company would send the beer-bearing septacopter. Lakemaid Beer’s brilliant idea was to upload a video of the delivery service to YouTube, where it quickly went viral, as did the “Tacocopter” and “Domino’s drone” before it. The only time people seem really happy about the drone invasion is when it involves caloric intake.
Lakemaid Beer’s plan did not go down easy with the FAA, as reported by NPR and others. The Federal Aviation Administration says drones can’t currently be used for commercial purposes, so Lakemaid Beer couldn’t tap them. A Washington, D.C. lawyer, though, doesn’t think the FAA has the right to down drones like Lakemaid’s. Brendan Schulman is currently waging a legal battle against the FAA in Virginia on behalf of his client, Raphael Pirker, who was fined $10,000 in 2011 for using a small unmanned craft to shoot video for the University of Virginia. Pirker is an aerial video artist, known for daring unmanned flights, including one over New York which involved his craft buzzing the Statue of Liberty. It’s the first fine for commercial use of a “drone” — if you think Pirker’s remote-controlled craft should be called that. “Our case is the first of its kind,” says Schulman.
This fall, Schulman argued to an administrative judge with the National Transportation Safety Board that the fine and complaint against Pirker should be dismissed. His argument is that the FAA doesn’t have the authority to smack down drones like Lakemaid’s and Pirker’s. He’s waiting on the judge to rule on that motion to dismiss.
“The FAA was created to address the problem of airplanes running into each other after two airplanes collided over the Grand Canyon,” says Schulman. “That was the main issue for the FAA: ensuring the safety of people in the air, passenger aircraft, and manned aviation, not the regulation of small unmanned aircraft.”
“The notion that people shouldn’t be able to use these for business purposes isn’t in the law anywhere,” says Schulman, whose interest in unmanned aircraft is not just a work one; he has been flying model airplanes for 20 years.
In the 1980s, the FAA issued guidance for hobbyists operating small unmanned fliers, telling them to keep them under 400 feet, to steer clear of spectators and buildings, and to warn airports if they’re flying within 3 miles. In 2007, the FAA issued its famous drone guidance, saying that public operators needed authorization to fly unmanned crafts and that commercial use was forbidden. Schulman is now essentially making two arguments against the FAA: that it doesn’t have the rulemaking authority to forbid commercial use without getting public comment first and that, even if it does, it shouldn’t be setting the rules for the air that these small drones are operating in, far away from airplanes and other “navigable airspace” hundreds of feet up.
“In the seven years since that 2007 ruling, the interest in the technology and beneficial uses of drones has exploded,” he says. “Yet their message is still that commercial use is illegal.”
In legal responses, the agency’s lawyer says the “FAA unquestionably has authority to regulate aircraft in U.S. airspace,” no matter where they are in the airspace, and that the agency is in charge of regulating safety in the air. The FAA attorney wrote that Pirker’s video — which was requested by UVA for a commercial (that never got made) for its medical center — featured unsafe maneuvers, with the aircraft zooming near people, building and statues on UVA’s property.
Schulman argues that the airspace in which Pirker’s craft zoomed around is owned by UVA and should be used as they want. “If something bad happens, that’s a tort law case,” says Schulman, meaning that an injured person could file a civil law suit against a drone operator. (Though a quick Google search indicates that hasn’t happened in the case of a Tampa, Flor. teen injured by a mini-helicopter nor in the case of a UK girl killed by a model plane.)
Now the case is in the judge’s hands. Schulman says that if he wins, it would also be a win for Lakemaid Beer.
“The underlying principles are closely related. Whether beer delivery via drone is practical or not is for someone else to decide. But legally, there’s no actual regulation or law against the commercial use of a drone,” says Schulman. “The video from the beer company shows them flying 50-60 feet in the air, well within safety parameters from 1981.”
What about Amazon? Should it be free to set its drones loose as well?
Schulman seemed hesitant on that question.
“Delivering packages by drones to urban areas is challenging. You have to think about power lines… neighbor’s dogs. There are going to be technical challenges, so that may require more regulatory thinking,” he said. “But controlled environments where all obstacles are known, that’s another matter. When thinking about lightweight drones flown close to the ground, there’s no need for a lot of regulation.”
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