The FAA is often powerless to halt the growing drone swarm. FAA risks losing drone war

The Washington Nationals used a drone to photograph spring training. Real estate agents use them to show off sprawling properties. Martin Scorsese hired one to film a scene in “The Wolf of Wall Street.”

So where does this leave the Federal Aviation Administration, which insists that commercial drone use is illegal?


Way behind — and facing turbulence as drone use explodes.

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Thanks to falling prices, spotty enforcement and the fact that it’s almost impossible to spot the devices being used, the FAA is often powerless to halt the growing drone swarm. Retailers freely sell the tiny planes, quadcopters and hexacopters for as little as a few hundred dollars, and entrepreneurs continually come up with creative uses like wedding photography and crop monitoring — along with delivering beer and dropping off dry-cleaning.

The result, observers and drone users warn, could be a Wild, Wild West in the nation’s skies. As small drone operators grow used to flying them without the FAA’s permission, they could become less inclined to obey any rules the agency puts in place. And with the cost of the technology continuing to drop, the drones could eventually become far too ubiquitous for the agency to police.

Meanwhile, the FAA is lagging in meeting a congressional mandate to allow commercial drones to share the skies legally.

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“Most people want to comply with the FAA rules,” said Ted Ellett, a former FAA general counsel who is now a partner specializing in aviation at the law firm Hogan Lovells. “But the more the FAA acts like a big daddy, behemoth government agency that is imposing excessive restrictions, the more the feeling of ‘I’m an American, they can’t tell me what to do’ kicks in. And that’s a real danger for the FAA.”

Plenty of drone users are going ahead without waiting for the agency.

“A lot of our members would like to start businesses using this technology,” said Timothy Reuter, the founder of the Drone User Group Network in Washington. “Some of them are waiting for the regulations to open up. Others, honestly, aren’t.”

The FAA says it’s committed to ensuring that its drone regulations protect public safety.

“The rulemaking process is deliberative and comprehensive,” the agency said in a statement Friday that referred to drones by the FAA’s preferred term, “Unmanned Aircraft Systems.”

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“Because UAS is an emerging technology, we want to ensure that we get it right and that we do not increase risk in the world’s safest aviation system,” the FAA added. “We expect to publish the small UAS proposed rule for public comment later this year.”

The agency probably will eventually issue two rules: one for drones less than 55 pounds, which are likely to fly under 400 feet, and one for heavier drones, which are likely to share airspace with manned aircraft.

Most of the explosion in drone use has come with the cheaper small drones, which typically remain in sight of the operator the entire time they’re in flight. The larger drones, which can resemble the military’s famous Predators, often require an airfield to take off and aren’t typically owned by individuals.

It’s not clear exactly what regulations the FAA will propose. The agency could require drone operators to register, pay fees or go through safety training. It could also place restrictions on drone use for safety reasons.

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But in the meantime, the FAA is sticking to the stance it’s held since 2007 — that using drones for commercial purposes is illegal.

The agency said it has sent out 12 warning letters to drone operators but also handles incidents with verbal warnings. In one case, the agency issued a $10,000 fine to a Swiss drone operator who it said was operating “recklessly” when flying at the University of Virginia in 2011. The case is under appeal and is before a National Transportation Safety Board administrative court.

While a 2010 law set a September 2015 date for the FAA to safely allow commercial drone flights, the Transportation Department’s inspector general told a House panel this month that it’s unlikely the agency would meet the deadline. (The FAA has approved one use of commercial drones: ConocoPhillips is using a large drone in the Arctic to monitor icebergs.)

The FAA says it’s making progress. At the end of last year, it announced the creation of six drone test sites across the country. The agency has also granted hundreds of operating permits to government agencies and universities to conduct research, patrol the border and search for drugs.

Still, the repeated delays are aggravating the industry. The Association for Unmanned Vehicle Systems International, a drone industry trade group, released a report last year estimating that every day drones remain grounded in the U.S. costs the economy $28 million.

Meanwhile, acts of defiance against the FAA ban are becoming more blatant.

The FAA said it is investigating the Nationals’ drone use, which occurred last week at the team’s spring training stadium in Viera, Fla. The team didn’t respond to a request for comment this week, but it had sent the photos out on Twitter and highlighted the fact that they were taken using a quadcopter.

“I can’t wait to see the footage,” Nationals Manager Matt Williams told the team’s official blog, which noted that members of the team were “intrigued” by the device. “It’s quiet enough that guys don’t really notice it when they’re out there. I asked them not to throw any baseballs at it or anything like that. And they said, ‘OK, skip, we won’t do that.’”

Freefly Cinema, an aerial photography company, highlights its drone work on “The Wolf of Wall Street” on its website.

The FAA has slapped down other high-profile drone experiments, like Lakemaid Beer’s much-discussed plan to deliver beer to ice fishers in Minnesota. But for every attention-grabbing use of the technology, there are probably dozens of violations the FAA will never hear about.

The result has been an underground economy where drone-based photography and videography of weddings and real estate has become common, where rural farmers use drones to monitor crops with little risk of being spotted and where teenagers can use drones to check their neighbors’ gutters for a few dollars.

Particularly maddening to the industry is that none of these activities would be illegal if no money changed hands.

The FAA allows hobbyists to use drones for recreational purposes under a rule originally designed for model airplanes.

“The FAA’s only distinction is that you can do it if you’re having fun and have a smile on your face,” said Ben Gielow, the senior government relations manager at AUVSI. “But you can’t do it if you’re trying to make money. I’m not sure what the safety distinction is.”

And the drone drama will only get worse. Unlike the planes and helicopters the FAA is used to regulating, the drone world has few barriers to entry. While a Cessna will cost a pilot tens of thousands of dollars and years of training, small drones are cheap — Amazon sells a quadcopter that can be equipped with a GoPro camera for just under $500 — and relatively simple to learn how to fly.

“It’s become so popular that it’s beyond the ability of any federal agency to patrol on a regular basis,” said Brendan Schulman, a lawyer at Kramer Levin in New York who is representing the Swiss drone operator in his battle with the FAA.

The delays risk setting a precedent of defying the FAA, which could undermine attempts to implement safety regulations later on. While it’s difficult to imagine some of the lighter drones dealing much damage to people or property, Reuter said some restrictions — for example, on using drones in densely populated areas — make sense.

For the Air Line Pilots Association, the scattershot enforcement is worrying. Last March, a drone came within 200 feet of a commercial airliner landing at John F. Kennedy Airport in New York City, sparking safety concerns. The FBI and FAA investigated the incident.

“If we want to have a safe airspace, we have to do everything possible to battle the idea that this is no different than flying a paper airplane in your backyard,” said Sean Cassidy, the union’s first vice president.

Drone enthusiasts hope they can persuade the FAA to speed up the process of legalizing commercial use. AUVSI sent a letter to FAA Administrator Michael Huerta last month asking him to begin allowing “some limited UAS operations before the rule is finalized, especially in areas where there is little risk to manned aircraft or people on the ground, such as around powerlines, pipelines and rural farms.”

Others want to go further. Reuter suggested setting up a process similar to Australia’s, which allows operators to register online after paying a minimal fee.

Ellett said the agency should have considered allowing commercial drone operators to go through the same certificate of authorization process government agencies go through, which requires the applicant to describe what type of drone they’re using, how and when they’ll use it and what they’ll use it for.

“If the FAA had permitted commercial operators to use COA, the agency would have had to conduct more reviews and process a lot more paperwork, but the agency at least wouldn’t have given the entire industry and the entrepreneurs the feeling that the FAA is just freezing them out,” he said.

CORRECTION: A previous version of this story misspelled the name of the law firm Hogan Lovells.

CORRECTION: Corrected by: Nick Gass @ 02/24/2014 05:02 PM CORRECTION: A previous version of this story misspelled the name of the law firm Hogan Lovells.