This past week, a two-foot long "quadcopter" UAV ("drone") crashed onto the White House grounds around 3 a.m., triggering an immediate security lockdown and a Secret Service investigation. The owner of the drone, allegedly a government employee, called the Secret Service to "self-report" the incident, insisting that he had no intention of flying the drone over the White House. According to the Secret Service, the incident likely occurred as a result of "recreational use" of the drone. The incident reveals the incongruity of the current state of FAA regulations regarding the use of drones. Under current FAA regulations, recreational use of drones is permissible and requires no license, but commercial drone use is prohibited. For any commercial operation of drones the FAA must grant a regulatory exemption and to date, the FAA has granted only a dozen (and has over 150 exemption requests pending). Pursuant to the FAA Modernization and Reform Act of 2012, the FAA set certain deadlines for promulgating a regulatory framework for the operation of commercial drones but recently missed a year-end deadline for release of proposed rules and will likely miss the September 30, 2015 deadline for issuance of its plan to integrate drones into the National Airspace System. The recent outcome of the FAA's enforcement proceeding against Raphael Pirker, an individual who was fined $10,000 for remotely piloting a drone for the purpose of taking photos and video of the University of Virginia campus, has strengthened the FAA's authority to regulate drones, much to the disappointment of business interests waiting to enter the commercial drone market. Mr. Pirker had successfully challenged the FAA fine to an administrative law judge who vacated the FAA order on the ground that the drone was not an "aircraft" for purposes of FAA regulation. The FAA Administrator appealed the order to the NTSB, which reviewed the ruling de novo. Stating that the case "calls upon us to ascertain a clear, reasonable definition of 'aircraft'" under the regulation, the Board overturned the administrative judge's order and found that the unambiguous definition of "aircraft" includes "any aircraft, manned or unmanned, large or small." The NTSB remanded the case for a hearing to determine whether Mr. Pirker operated his drone in a careless or reckless manner so as to endanger the life or property of another contrary to 14 CFR § 91.13(a). Mr. Pirker subsequently settled the matter by paying a fine of $1,100 without admitting any regulatory violation. It remains to be seen whether the FAA can devise regulations permitting commercial use of drones that pose no safety or security risk, such as Mr. Pirker's drone, which was simply taking promotional photographs of a college campus.
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