Model airplanes took off as a hobby in the U.S. after the Wright brothers credited their toy helicopter as the inspiration behind their flights in the early 20th century. Comprehensive books were published on the subject, and thousands of model aircraft clubs were established. Perhaps it was the nation’s fond history of model planes that prompted the Federal Aviation Administration (FAA), not officially established until 1958, to avoid regulating these tech toys.

In 1981, however, that all changed. The FAA, which has the authority to regulate all American civil aviation, mentioned model planes for the first time in an “Advisory Circular,” signed by then director of air traffic services R. J. Van Vure. The document sets forth voluntary guidelines that address basic safety concerns. It essentially asked radio-controlled copter hobbyists to avoid flying their aircraft above 120 meters, and near airports, spectators (for untested planes), full-scale aircraft and noise-sensitive areas.

Then, in 2007 the FAA turned its attention to model airplanes once again. Now termed drones and unmanned aerial vehicles (UAV), the agency banned their use for business purposes. “We recognized that unmanned aircraft systems [UAS] would expand significantly and [took steps] to make sure UAS operation [did] not adversely affect safety,” said an FAA spokesperson who would not give his or her name. “Integration of UAS into the nation’s skies must be deliberate and incremental to avoid introducing unacceptable safety risks,” the FAA says.

Yet, because the policy was established without undergoing the requisite administrative rule-making process, it continues to stand on uncertain legal ground. Despite this, the agency gives the impression that the policy is mandatory by sending cease-and-desist letter to aerial filmography companies. It also states on its Web site that people are not allowed to fly UAVs for commercial purposes.

Nonetheless, according to the FAA, the administration “currently do[es] not have regulatory standards for commercial operations of UAS,” thereby admitting they can’t enforce their 2007 notice. “We can, however, enforce existing safety regulations that apply to all aircraft, [such as] careless or reckless operation of an aircraft,” the FAA says.

Such being the case, the FAA subjects commercial UAVs to the same laws as a full-scale aircraft, but not UAVs for personal use. Now a radio-controlled model aircraft pilot is challenging the FAA on this policy after receiving a large fine for flying his RC-fixed winged model plane in an allegedly reckless manner. The FAA has only charged him in response to a flight that he was compensated for, and not his other flights.

Low-visibility policy

Because of the ambiguous regulatory environment surrounding drones and UAVs, some companies, including Beaufort, S.C.–based Wollwerth Films, have carried out aerial filmography via a UAV regardless of government threats. Company founder Stephen Wollwerth says he has flown radio-controlled aircraft for much of his life, so when he became a film director he merely integrated his copter into shoots, unaware of legal issues. The licensed pilot, who has officially been in the film business for three years, contacted the FAA in July for a waiver when he was hired by the Bravo network to shoot aerials of high-priced houses in Charleston, S.C. FAA UAS inspector Chris Grotewohl replied with a basic statement (pdf) of the agency’s policy outlining three possible ways of operating drones. The description of each method concluded, however, with the statement that “commercial operations, including aerial photography for hire, are not allowed.” The waiver was denied, so Wollwerth lost about $10,000 because he had to decline the job. Although directly ordered by the FAA to cease operations, Wollwerth continues to run his business on the grounds that the threat “was based off a policy. There’s no law or actual regulation. [The FAA] cannot fine me, because it’s not a law,” Wollwerth says. And so far the FAA hasn’t tried.

Other companies have been less fortunate. After the FAA issued its 2007 notice it cease-and-desist letters to numerous aerial film firms many decided to shut down. The owner of one outfit, who asked to remain anonymous for fear of drawing more attention from the agency, says the FAA ordered his company not to fly for two years. “Faced with tens of thousands of dollars of fines, plus attorney fees, we elected not to do business in the U.S.,” the owner says. His business performs well internationally instead. “I will let other companies take their chances of being fined by the FAA, as I’m sure they are looking for an example company to kill.”

The FAA may have finally found their example: Raphael Pirker. Pirker, aka Trappy, co-founded Team BlackSheep in 2011. The company specializes in aerial filmography using radio-controlled planes, which they sell on their Web site. A controversial figure among the radio-controlled plane community, the Swiss citizen chooses to fly his planes in any airspace, flouting any relevant legal constraints. He first caught the media’s attention in 2010 when he uploaded footage he took of New York City and the Statue of Liberty using his first-person-view model plane. Authorities were notified, but no action was taken because Pirker was not compensated for the flight. Therefore, his model aircraft was subject to the 1981 Advisory Circular and not the 2007 notice about commercial applications for drones.

A fine example

Then, in October 2011, Pirker was contacted by advertisement agency Lewis Communications to film aerials of the University of Virginia campus. For the shoot Pirker flew his UAV under trees, through a tunnel and near a person—a spotter working for Pirker. The FAA caught wind of Pirker’ commercial flight. About two weeks after he uploaded the video, the FAA made contact through his company’s Web site, Pirker says. Two years later Pirker received a $10,000 fine, on the grounds that he flew his UAV for commercial purposes and had endangered property and people.

Pirker posted his predicament on Facebook, catching the eye of commercial litigator Brendan Schulman. Schulman, who specializes in law and technology, has flown radio-controlled planes for the past 20 years. “Having followed the legal issues relating to this for a long time, I knew that the FAA lacked any real regulations concerning model airplanes,” Schulman says. Pirker’s case was the first instance the lawyer had heard of in which the FAA levied a fine on a UAV flyer.

According to legal papers submitted by Schulman, the FAA claimed Pirker was operating his UAV “at extremely low altitudes over vehicles, buildings, people, streets and structures.” Flying model airplanes at extremely low altitudes isn’t uncommon, however, says lawyer Patrick McKay, who became Pirker’s friend through FBVLAB, an online aerial filmography community. Regardless of what Pirker was doing, Schulman asserts that the FAA’s jurisdiction extends only to the navigable airspace, “which is basically understood to be the airspace you would expect to find an aircraft in flight,” not within tunnels and under trees.

Since issuing its 2007 notice, the FAA has formed two different UAV-related Advisory and Rulemaking Committees to provide future recommendations. “We have also asked RTCA to work with [the] industry to help develop [UAV] standards for communication, command and control, and how they will ‘sense and avoid’ other aircraft,” the FAA says. To date, the agency has not yet promulgated enforceable regulations for UAVs, missing several deadlines to do so. Congress’s newest deadline for the FAA to propose regulations is by 2015. Schulman thinks that the FAA’s actions toward Pirker are in response to the social, political and media pressures associated with military drones.

Schulman’s motion for the court to dismiss the case against Pirker now is under review. If the case is dismissed, “it means the FAA doesn’t have the authority to enforce its current policy against hobbyists or commercial drone users until it comes out with proper regulations,” McKay says. Perhaps this would encourage certain businesses, such as the unnamed indie film company, to reenter the U.S. market. The dismissal of the case could also potentially inspire aerial film companies that closed down to reopen. “I’m really glad to see Trappy [Pirker] challenging this,” McKay says. “Most other people haven’t had the courage to stand up to the FAA and call their bluff. I'm eagerly awaiting the results.”

Alternatively, if the case does go to trial, the outcome of Administrator v. Raphael Pirker, to be judged before an administrative law judge at the National Transportation Safety Board (NTSB), will be significant in that it will set a precedent for what constitutes careless operating of UAVs. And if the judge rules that the FAA has the legal authority to levy fines against commercial operators, the case would set a precedent confirming the policy’s legality and the FAA’s authority to enforce it, thus creating serious implications for companies such as Wollwerth Films.

For now, it is a matter of waiting for the FAA to respond to the Schulman’s motion.