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.