Andrew Zaleski is a journalist in Philadelphia.

Twenty-nine floors up, inside a conference room of the New York law office of Kramer Levin Naftalis & Frankel, Brendan Schulman is hovering a drone in front of my face. It’s a Blade Nano QX—barely 2 inches tall—a four-rotor, radio-controlled copter that weighs half an ounce, costs less than $100 and easily fits into an adult’s outstretched palm. The drone makes a buzzing sound, like a swarm of bees circling a hive, as Schulman navigates it through the corner conference room overlooking the rain-soaked Avenue of the Americas—first toward the wall-mounted flat-screen television, then backward through the air above the conference table. “I usually get a bigger conference room,” he says.

The room actually seems to suit this gentle in-office flight. But while puny compared with the larger, military-grade drones most Americans are familiar with—the Predators dispatched on sorties in the skies over the Middle East—diminutive drones like Schulman’s Blade Nano find themselves at the center of an uncertain controversy over technology, aviation and federal policy. By the end of this month, the Federal Aviation Administration is expected to release a set of proposed regulations it believes should govern the commercial flights of civilian drone pilots in the United States—the agency’s first attempt at regulating any kind of radio-controlled unmanned aircraft used for purposes other than university research, law enforcement, firefighting and other “ government operational missions.” That means farmers using lightweight drones flown to inspect crops, realtors photographing houses, videographers shooting aerial footage and the like would all answer to federal regulators.


If the FAA is Goliath in this fight, Schulman is David. For the past two years, the 40-year-old attorney has been slinging rocks, in the form of lawsuits, at the agency on behalf of drone operators around the country—including in the first federal commercial drone case in the United States. Schulman also leads Kramer Levin’s unmanned aircraft systems practice group, which Schulman says was the first of its kind in the country when it launched in 2013. For a mild-mannered hobbyist—he has built and piloted model aircraft and lightweight drones of his own for 20 years—Schulman is perhaps America’s foremost spokesperson fighting to protect civilian drone operators from regulations he sees as arduous, at a time, he says, when drones are poised to change industries ranging from construction to filmmaking.

“I worry about innovation being stifled,” Schulman says. “Only recently has the utility of those devices for commercial applications been realized. … We’re at a point where it’s poised to change the world.”

But as Schulman’s influence has risen, so, too, have calls for more regulation of drones—from the FAA, Congress and, most recently, President Barack Obama. After a tiny quadcopter crashed on the South Lawn of the White House this week, the president acknowledged in an interview with CNN that commercial drones more and more “have the capacity to empower individuals.” But he pointed to the FAA’s, and other agencies’, work toward creating a “framework” to make sure drones are safe and don’t invade people’s privacy. “We don’t really have any kind of regulatory structure at all” for the industry, he said.

The move toward stricter regulation had been gradual until just a few years ago. Hobbyists have been flying model airplanes in American skies since long before the creation of the FAA in 1958 and have continued largely unimpeded ever since. (In 1981, the FAA asked model aircraft hobbyists to comply voluntarily with some suggested rules, like maintaining a flight ceiling of 400 feet and not flying within 3 miles of an airport.) But in the middle of the past decade, the FAA anticipated governments at the federal, state and local levels using Predator-type drones domestically—for border patrol, say—and talk increased regarding the need for enforceable regulations for unmanned aircraft. (Today, the terms “drone” and “model aircraft” are more or less interchangeable under the umbrella of unmanned aircraft, but there are subtle differences: A drone can be programmed to fly autonomously, while a model aircraft relies on a person with a handheld radio transmitter for flight.) At the same time came technological advances that transformed model aviation from an obscure hobby making use of big gas-powered flying machines to a much more common one, with small remote-controlled devices that anyone can fly with a few Google searches and some practice—a development, in Schulman’s view, the FAA hadn’t anticipated. That’s made lightweight drones useful for aerial advertising, land surveying and many other commercial practices.

The FAA has maintained since 2007 that flying an unmanned aircraft for any sort of monetary gain is illegal. Remember Jeff Bezos proudly displaying a line of Amazon.com delivery drones in November 2013? As it currently stands, any package-delivering drone army Bezos dispatched would be considered illegal . (There are some exceptions: Private businesses can apply for exemptions, which is how seven companies were approved in the fall to use drones to film movies and commercials.) Back in 2007, the FAA promised that within a year it would release reasonable rules circumscribing the flights of commercial drones. Such rules have yet to materialize, but now the FAA is under greater pressure: The FAA Modernization and Reform Act, passed by Congress in 2012, requires the agency to release regulations for commercial drone use by September 2015. In the interim, commercial drone pilots have operated in a legal gray area. Some fly for remuneration. Others have shut down after receiving cease-and-desist letters from the FAA.

By and large, it’s been Schulman who has sought to make that gray area black and white —or, at the very least, to make the legal case that lightweight drones, those lighter than 5 pounds, shouldn’t be treated with the same scrutiny as Boeing 747s. “He’s the main person litigating against the FAA,” says Gregory McNeal, a law professor at Pepperdine University who specializes in public policy, national security and technology and has followed drone-related litigation.

Today, Schulman is representing about a dozen clients who are defending themselves from or otherwise caught up in litigation with the FAA. They include three groups who sued the agency in D.C. Circuit Court in August over a notice the FAA released laying out its interpretation of the 2012 modernization and reform law: Although the law says the FAA may not make any “rule or regulation regarding a model aircraft … if the aircraft is flown strictly for hobby or recreational use,” the agency claimed it can take action against hobbyists it believes are flying unmanned aircraft in a way that endangers national airspace. “What the FAA did in June turns the statute on its head,” Schulman says.

Alongside a coalition of commercial drone operators, Schulman also sued the FAA on behalf of the Council on Government Relations, which represents 188 research universities across the country, and the Academy of Model Aeronautics, the nearly 80-year-old organization that represents and self-governs model aircraft enthusiasts, including Schulman. (The cases are still ongoing.) The universities are worried that the FAA will constrain their ability to use model aircraft in aerospace research and education. Hobbyists have taken umbrage at the FAA saying they now must contact local air traffic control for explicit permission—in the past, a simple notification would suffice—to fly within a 5-mile radius of any airport.

Schulman himself is a fitting representative of the country’s regulation-resistant drone operators. He flies drones and model aircraft about every other week in the summer, either at a field that has a charter from the Academy of Model Aeronautics or in the backyard of his New Jersey home. He says his garage is half-filled with remote controllers, parts and many kinds of model aircraft, which Schulman names with ease: a Lumenier QAV250 miniature racing quadcopter with first-person view to fly low to the ground and through trees; a DJI Flame Wheel F450; a ParkZone VisionAire model airplane, which Schulman claims is “excellent at doing rolls and loops.” He has one model aircraft whose speed he has clocked at 131 miles an hour.

“For me, it’s always been about a fascination with the technology, and an excitement to see the technology being used in really productive, beneficial ways,” Schulman says. “But I do enjoy soldering and working with my hands and putting things together—especially these days. It’s so interesting, the equipment that’s come out with GPS and gimbals and the little motors. Back 15 years ago, it was more about motors and balsa wood and gluing things together.”

One wonders sometimes why Schulman is a lawyer instead of behind the counter of his own hobby shop. He spent his undergraduate years at Yale majoring in English and working as a part-time computing assistant. A forerunner to the Geek Squad of today that rushes out in VW Beetles to assist hapless computer owners, Schulman and a band of about 20 fellow students bounded across campus responding to urgent cries for help. “I did things like rescue people’s term papers from floppy disks they had dropped into their sink,” he recalls. Ultimately, Schulman followed his father, now a judge, into the law and got his degree from Harvard. “I was always just very good with computers and technology as a kid,” he says. But with the law, he says, “You were applying a technical or legal framework to our lives.”

The time he continued to devote to his model airplane hobby, at conventions and in online hobbyist forums, still served him well. That’s how Schulman first contacted Raphael Pirker, a Swiss citizen who used a drone to film at the University of Virginia in 2011 and was subsequently fined $10,000 by the FAA for “careless and reckless” flying. In March 2014, a National Transportation Safety Board judge in Colorado threw out the case on the grounds that the FAA has no regulatory authority over unmanned model aircraft. The FAA appealed, and the NTSB ruled in November that an aircraft is any device “ used for flight in the air”—in effect saying that unmanned aircraft systems meet the legal definition of an aircraft, which gives the FAA power to regulate even the smallest drones. (The one Pirker flew weighed less than 5 pounds.) But it was a narrow decision that concerned only unmanned aircraft operators who can be accused of flying carelessly or recklessly; the NTSB didn’t address the legality of commercial unmanned aircraft flights. On January 22, Pirker settled his case with the FAA, agreeing to pay $1,100 instead of the original $10,000. He did not have to admit to any wrongdoing.

That was the first of the two more-or-less-successful defenses Schulman has mounted in drone cases. The second involved Gene Robinson, a drone operator who runs a company developing an aerial data-collection system and flies search-and-rescue missions with a Texas-based nonprofit called EquuSearch. Since 2006, EquuSearch has enlisted the help of Robinson, who says his 5-pound Styrofoam drone has flown in hundreds of searches for missing people and has located a dozen for EquuSearch alone. Over the years, the FAA periodically contacted Robinson during EquuSearch missions around the country, telling him that flying his drone—even in an effort to find a missing person, and not for pay—was prohibited, Schulman told me. It all culminated in an email that the FAA sent to Robinson in February 2014: “UAS operations that are not authorized [by the FAA] … are illegal.”

“Now that they’ve come up with definitions of aircraft and removed the ‘model’ part of the model aircraft, [the FAA is] regulating on intent. This is kind of a catchall that’s just really onerous for us,” Robinson told me. “If you fly an airplane, why do you go fly it? For fun? OK, you’re a hobbyist. Anything else? Illegal.”

Schulman took on EquuSearch’s case pro bono and sued the FAA in D.C. Circuit Court last spring. “On what basis were they saying that the operation of a model aircraft is illegal? Just because the purpose changes?” was how Schulman posed the question to me. But the FAA told the court that the emails and phone calls to Robinson over the years were just advisory in nature. So while the court dismissed the lawsuit on the grounds that the FAA email was not a formal cease-and-desist letter—therefore making it null and void—it was only a Pyrrhic victory for Schulman. A draw, in the words of Robinson, who pleads the Fifth as to whether he has been in the air flying for EquuSearch since, though he says the FAA has already sent him another letter about his drone use.

FAA spokesman Les Dorr says the agency’s chief concern in cases like Pirker’s and Robinson’s—and in the new regulations it is set to reveal—is safety, which is why it wants to know what drones are flying and who’s flying them. It’s also why it has taken the FAA seven years to prepare those proposed rules incorporating commercial drones into U.S. skies. “The challenge here is to write safety regulations for the busiest and most complex airspace in the world,” Dorr says. “And we have to write those regulations to maintain today’s ultra-high level of safety, while at the same time not putting an undue regulatory burden on an emerging industry.” In December, as four more companies received exemptions to fly unmanned aircraft for aerial surveying, construction-site monitoring and inspecting flare stacks on oil rigs, FAA administrator Michael Huerta reiterated those safety concerns: “The FAA’s first priority is the safety of our nation’s aviation system,” he said in a news release. (So far 14 U.S. companies have been granted exemptions for commercial drone flights—out of more than 200 petitions requesting such exemptions.)

Still, Schulman and his allies fear the FAA’s new rules will take safety concerns too far. Just before Thanksgiving, the Wall Street Journal reported what it said were the FAA’s likely proposed rules for commercial drones. They are broad and stringent, and apply to all drones weighing under 55 pounds: Flights must happen in daylight, drones must be kept beneath 400 feet in the sky and within an operator’s line of sight, and commercial drone operators must be certified aircraft pilots. Dorr wouldn’t tell me whether the Journal’s report was accurate but noted that in the seven exemptions the FAA granted for drone-filming companies in the fall, the agency said each operator had to have at least a private pilot certificate. If the Journal’s report is accurate, that means a 2.8-pound DJI Phantom 2 drone that a Realtor might use for photography would be regulated in the same way as a 40-pound ScanEagle, a gas-powered, Insitu-built unmanned aircraft like the one that ConocoPhillips used off the coast of Alaska in 2013.

Not surprisingly, drone operators and some industry observers aren’t happy with what they’ve heard. “What pilots learn has absolutely nothing to do with UAV flight,” says Terry Kilby, a commercial drone pilot who operates a photography business just outside Baltimore. “It’s like asking someone to get a regular driver’s license to drive [a radio-controlled] car.” Pepperdine University’s McNeal worries that the regulations will come at the cost of improving drone technology. “The FAA has one obligation: Safely integrate unmanned aerial systems into the national airspace. So they have no incentive to promote innovation,” he says.

It’s not that Schulman thinks safely flying unmanned aircraft systems isn’t important. “I’m a proponent of drone safety—I don’t have any clients who have flown near airliners,” he says. But he believes the regulations the FAA ultimately instates should take into consideration the significantly lighter weight and smaller size of many drones, which can be flown low to the ground and away from airports. “I don’t feel that a 50-pound UAS operating at high altitudes requires the same level of regulation as a 2-pound drone taking a real estate photo at 50 feet,” he says.

Whatever rules the FAA proposes won’t immediately be legally binding—there will be lots of hoops to jump through first. First, the regulations will be open for public comment for at least 60 days; Schulman predicts there will be at least 100,000 comments for the FAA to take into consideration, and while the agency is under no obligation to respond to them, it might consider doing so. After that, the FAA still has to get the rules approved by the Department of Transportation and the Office of Management and Budget. Politicians on Capitol Hill have remained mostly on the sidelines of this ongoing UAV battle, but Obama promised over the summer to issue an executive order calling for privacy guidelines for the sorts of personal data and images that commercial drones can collect and use, a cause taken up by recently departed Senator Jay Rockefeller in a bill he filed in December. As for when the proposed rules will be published: McNeal predicts by January’s end, since that would be three months after the FAA sent them to the White House for review. (The White House has 90 days to look over proposed rules, an amount of time that could be extended by 30 days should reviewers have significant comments for the FAA.) Dorr says the agency doesn’t have a specific date set for releasing the proposed regulations.

All this means that commercial drone rules could very well arrive later than September 2015, though the FAA wouldn’t guess on a timeline, saying by email that when the final regulations are released is a matter of how many comments the agency receives during the rulemaking period. In the meantime, Schulman will continue fighting on behalf of clients who think the FAA’s current enforcement policies for unmanned aircraft flights are too strict or impractical. And when the rules do come out? He’ll fight them too if he thinks they go too far: At the end of last month, Schulman filed yet another document with the FAA—not a lawsuit, but a formal petition—that outlines his own proposed regulatory framework for governing the flights of commercial drones weighing 3 pounds or less. Hint: So long as those lightweight drones stayed 5 miles away from airports and beneath 400 feet, they could be flown commercially without an exemption from the FAA and without a private pilot’s certificate.

“We think it’s overkill to require someone who wants to fly a drone for business purposes to spend dozens of hours learning to fly a Cessna,” Schulman says. “What we need is a regulation that allows commercial use right away under a reasonable set of rules.”