Jason Koebler is a freelance science and technology reporter based in Brooklyn. Follow him @jason_koebler.

On message boards and Facebook groups, he’s known as Trappy. Fellow drone hobbyists call him an “ aerial anarchist” and marvel at the videos he’s taken with his five-pound foam aircraft of the Statue of Liberty, the French Alps and the Costa Concordia, the Italian cruise ship that ran aground in the Mediterranean in 2012.

“Ask anyone who the most daring pilot is,” says Trappy himself, never one for false modesty. “The answer is probably going to be unanimous.”


But ask officials at the Federal Aviation Administration, and they’ll tell you Trappy is a 29-year-old Swiss thorn in their side named Raphael Pirker, someone who flies recklessly, flaunts the agency’s rules and might even threaten its slow, careful plans for the safe integration of commercial drones into American skies.

In 2011, the FAA slapped Pirker with a $10,000 fine after he flew his Styrofoam drone around the University of Virginia while filming an ad for the university’s medical school. With that, the most famous pilot in the underground drone world became a test case for the FAA’s authority to prohibit people from making money off their hobby.

Pirker has asked a judge with the National Transportation Safety Board to throw out the fine, and a decision is expected any day now. In the meantime, the case exposes what would seem to be a rather large loophole in the law: The FAA has been saying since 2007 that commercial drone use is not allowed, but the agency never went through the official rule-making channels to make it illegal. I asked an FAA spokesman at least five times whether flying a drone for profit is illegal and, after several attempts to follow up, was told that the agency was not prepared to answer that question.

As a result, the case against Pirker hinges not on whether he was operating a drone for commercial purposes but instead on whether the FAA can prove that he was flying in a “reckless manner so as to endanger the life or property of another.” In other words, the FAA needs to show that Pirker could have killed someone or seriously damaged a building with what is essentially a flying toy. If the agency fails and his fine is thrown out, the ruling could be taken as a sign to would-be commercial drone operators that the FAA lacks the authority to stop them—at least until it can issue an official rule, a process that typically takes more than a year. All of which could mean that the agency’s multi-year effort to plan for the gradual introduction of commercial drones—with safety controls and privacy protections to reassure those who worry about allowing small, flying cameras to operate with impunity—would fall by the wayside as the skies immediately open to a buzzing, whirring horde.

Whether the FAA is ready or not, the drone age could suddenly be upon us.

***

Unmanned aircraft have been zipping through American skies since before there even was a Federal Aviation Administration. The Academy of Model Aeronautics, a nonprofit dedicated to promoting model airplane flight, was founded in 1936 and now has more than 140,000 members. But while model aviation has evolved—from a hobby dominated by ex-military pilots flying gas-powered airplanes to one popular among Silicon Valley types with iPad-controlled hexacopters—the laws that govern the skies haven’t kept up. This has especially become a problem as technologies like high-definition cameras and smartphone integration have made even very small drones—some no bigger than a songbird—potentially useful tools for a variety of businesses.

Trappy with the drone he flew over UVA. | Team BlackSheep

The FAA has never officially regulated model airplanes or small drones. The closest it has come was an “advisory” issued in 1981 that created a set of voluntary guidelines for model aircraft: stay within the line of sight, do not fly within three miles of an airport, do not fly a model airplane higher than 400 feet. Then, in 2007, the FAA said in a policy statement that the 1981 advisory applies only to hobbyists, not to businesses—a move the agency has repeatedly said makes the commercial operation of drones illegal. Back in 2007, the FAA said it would soon release new rules for small commercial drones, but it still has not produced those rules and just this month announced that they wouldn’t be ready until at least November.

In the meantime, countries in Europe and Asia have run laps around the United States in their use of commercial drones, and companies in South America and Africa are looking to get in on the action as well. In July, I met Ernesto Sanchez, a representative from North Carolina’s UTC Aerospace Systems, at an air show in Colombia. He was there because the company isn’t allowed to sell drones in the United States except to public agencies that have an FAA waiver. “Our business has been limited by what we can do in the United States,” he told me. “Here, we’re not seeing that as much.”

***

Two years ago, Congress pushed the FAA to speed things up when it passed the FAA Modernization and Reform Act of 2012, which directed the agency to release guidelines for commercial drones within a year and to have a plan for commercial drones to begin flying “no later than September 30, 2015.”

Since then, the FAA has missed nearly every deadline Congress set—in part, critics say, because the agency didn’t have the foresight to take the rise of the drone age seriously. “Ten years ago, the FAA said [unmanned aerial vehicles] were never going to amount to anything, that they’d be a niche market,” says Missy Cummings, a former Navy fighter pilot who runs Duke University’s Humans and Automation Laboratory. “They’ve created a rigid system that can’t tolerate new, disruptive technologies.”

To satisfy government—but not commercial—demand for drones, the FAA began what it calls a Certificate of Authorization (COA) program, which allows certain police departments, universities and government agencies to fly drones on a limited basis. These certificates have allowed Customs and Border Patrol, the FBI and some smaller organizations to fly drones to help make arrests, scout for drugs and illegal immigrations along the border, and monitor hostage situations.

As of November, the FAA had issued 1,387 COAs, with just one going to a commercial enterprise—oil giant ConocoPhillips, which is using a $100,000 Boeing Insitu ScanEagle to monitor icebergs and count whales and birds off the coast of Alaska, in the most remote airspace in the United States. The FAA has made it clear that, except in extreme circumstances, it will reject commercial applications for the time being—much to the frustration of entrepreneurs waiting to enter a new industry that they believe has the kind of explosive growth potential last seen with the arrival of the smartphone and tablet computing.

Proponents argue that drones could revolutionize events photography, journalism, agriculture, filmmaking and other businesses. Amazon famously announced in December that it plans to deliver packages with drones beginning in 2015, assuming the FAA’s rules are in place. Gimmicky but eye-opening YouTube videos have popped up showing drones delivering tacos, burritos and beer. Environmental activists say drones can be used to monitor illegal hunting and endangered species populations; firefighters want to use them for search and rescue operations; engineers want to use them to monitor the structural integrity of bridges and oil pipelines; and the list goes on.

According to a report published in March by the Association for Unmanned Vehicle Systems International, a consortium of companies in the industry, drones could create as many as 70,000 jobs and have an overall economic impact of more than $13.6 billion in three years. Which means, the report says, that each day U.S. commercial drones are grounded is a $28-million lost opportunity.

Last month, the FAA took an important step forward when it named six states—Alaska, Nevada, New York, North Dakota, Texas and Virginia—where drones would be allowed to operate at “test sites.” Although the details are still up in the air, for the moment it appears that anyone who wants to fly a drone commercially will have to be certified at one of these test sites. Think of them as DMVs for drones.

Larry Brinker, executive director of the company NUAIR, which will operate a test site in Rome, N.Y.—250 miles north of Manhattan—says he is not yet sure what certification will look like. Will a wedding photographer from Maine have to travel to Rome in order to get certification to fly a one-pound drone bought at Brookstone? Can it be done in a day? A week? Will all drone operators have the same licensing process whether they’re flying a bird-sized drone or an airliner-sized one? Brinker hasn’t gotten much guidance from the FAA about how it will all shake out.

Ask anyone who the most daring pilot is, the answer is probably going to be unanimous.”

One thing is certain, however: People are lining up to get certified. In the first several days after the FAA announced that New York would open a test site, Brinker says, hundreds of would-be drone operators called hoping to sign up. “We’re starting to organize how we’re going to handle all this,” he says. “We’ve got quite a lot of people wanting to get in the queue right now.”

***

Flyterra, a Canadian drone manufacturer, will be NUAIR’s first client at the New York test site and could become the first company certified in the United States. Its drones have surveyed pipelines and farms and done search and rescue operations for years, and the firm is eager to start operating in the United States as soon as possible—but only once it has FAA clearance.

“We’d never fly without the proper authorization,” says Vivien Heriard Dubreuil, president of Flyterra. “We want to put our names out there as the serious guys who abide by the rules, even if they’re not clear.”

Trappy and his drone. | Team BlackSheep

Others, like Pirker, aren’t willing to wait. His lawyer, Brendan Schulman, was recently named head of the drone team at Kramer Levin, the first major U.S. law firm to create a drone practice. Schulman says it’s clear some companies have simply decided to go ahead without FAA’s blessing—he sees more and more commercials and TV shows, for instance, that were obviously shot with cameras on drones.

FAA spokesman Les Dorr says the agency has sent cease-and-desist letters to 12 people for operating commercial drones, but Cummings, of Duke University, says she knows several who ignored the letters, kept flying and have not faced any consequences.

Those who do so operate in a legal gray zone. Despite the FAA’s repeated assertions that “commercial operations including aerial photography for hire are not allowed,” legal experts say the 2007 policy statement the FAA cites is not legally binding. To issue enforceable regulations, the FAA has to create a rule and allow the public to comment on it, a procedure commonly undertaken by federal agencies. “A policy statement can’t be binding on anyone, including the agency,” says Richard Pierce, an administrative law professor at George Washington University Law School. Even Dorr, the FAA’s own spokesman, told me it’s unclear whether the 2007 guidance is enforceable, and the FAA’s legal department did not answer the question, despite my attempts to follow up several times over the course of two weeks.

But how could the FAA have failed to issue a rule governing commercial drones? Was the agency really that oblivious to the growing demand?

Not necessarily, says Pierce—he notes that regulatory agencies sometimes forego the bulky, time-consuming rule-making process because they know few people have the money or will to challenge them.

“If the FAA has a policy statement saying, ‘If you do this for profit, we’ll go after your ass,’ that’s enough for a lot of people,” he says. “The only way you get definitive answers to these questions is if you spend tens of thousands of dollars in court.”

***

That’s where Pirker comes in.

While a dozen other drone pilots have received cease-and-desist letters, Pirker is the only one who’s been fined, and he is willing to spend the money for a legal challenge. The difference, FAA’s Dorr says, is that Pirker was cited not for commercial drone use but for “careless and reckless operation of the unmanned aircraft.”

The statute that the FAA used seems an odd fit: The regulations state that a person can be prosecuted for reckless flight for flying an aircraft below 500 feet—which is at odds with the guidelines that suggest model aircraft can only be flown below 400 feet. The statute also says a pilot can be fined for walking around the cabin while the plane is in flight—impossible to do with a Styrofoam drone. One question for the judge is whether this statute applies to such a small aircraft.

Another is whether Pirker was, in fact, flying recklessly. Even when drones have crashed and killed—as happened to one drone operator in Brooklyn who was partially decapitated by his own helicopter in September—the FAA has chosen to not investigate, instead deferring to local law enforcement. There are dozens of YouTube videos of drone crashes in populated areas, but none of those pilots has been fined. And Pirker, who says his foam drone couldn’t cause any damage “even in a worst-case scenario,” flew at UVA without incident.

The Swiss citizen has been on the FAA’s radar since late 2010, when he and two employees of BlackSheep, his drone manufacturing company, flew the same foam drone around the Statue of Liberty’s head, descended close to skyscrapers in midtown and zipped above passing cars on the Brooklyn Bridge.

During the flight, people stared, wondering what was going on. Afterward, they got mad. The Academy of Model Aeronautics said the flight “posed significant threat to people and property.” The FAA investigated and eventually determined that Pirker broke no laws—operating a small drone is legal, even next to New York City’s skyscrapers.

So why did they come after him for the University of Virginia flight, which was less dangerous but for which he was paid? Although the FAA is adamant that Pirker wasn’t fined for flying commercially, the official complaint against him does note that he “received compensation,” and many people in the drone world believe the FAA chose him to send a message.

If that's the case, the agency is taking a gamble: If a judge determines that the reckless flying statute—and the FAA’s authority—does not extend to such small drones, Cummings says, other small drone operators will get the message that they’re free to fly as they wish.

Pierce, of George Washington University, notes that it’s possible a judge could rule the foam drone is an “aircraft.” But if the FAA can regulate a five-pound drone, Schulman says, “What’s stopping them from regulating a Frisbee, or a baseball or bullets, for that matter?”

Armed with a high-powered attorney who specializes in drone law and the fact that he was essentially flying a toy, Pirker likes his chances.

“The laws they have in place are not reasonable right now, and the way they’re trying to enforce them don’t make any sense to me,” he told me one night over Skype from Hong Kong, where he now lives and is getting his drone business off the ground.

Schulman says that if his case is dismissed, it will immediately open the door for other drone operators to fly without fear of FAA prosecution, especially because a new regulation that officially bans commercial drones could take a year. And even if the FAA does try to enact a temporary emergency rule, at least that would spur the agency to act more quickly, which is exactly what those in the drone world want.

“It’s weird that they’ve made this their landmark case,” Pirker says. “I don’t care about getting off the hook. My biggest motivator is that these laws are not fair and they’re hurting an entire industry.”

If he wins, Pirker might become the least of the agency's problems.