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Don't Tread On My UAS

By Patrick C. Miller | March 19, 2015

There are different takes on recent stories about the U.S. Federal Aviation Administration’s approach to dealing with two separate cases of unmanned aerial system (UAS) operators who the agency says are violating its commercial operations regulations

One is that the FAA is blindly stumbling and bumbling its way toward implementing the UAS regulatory process. Another is that it’s cleverly scheming to implement draconian regulations that give it the greatest amount of control possible over the emerging UAS industry. I suspect it’s a combination of the two.

To be sure, in its handling of UAS pilots Jayson Hanes and Steven Girard, the FAA didn’t exactly cover itself in public relations glory.

Hanes, who lives in the Tampa Bay, Florida, area, has a YouTube channel featuring videos shot from his DJI Phantom. Girard lives near Portland, Maine, and runs a website called Xtreme Aerial View which displays the photos and videos he captures with his small unmanned aerial vehicle (sUAV).

Hanes received a letter from the FAA saying that because his YouTube videos are monetized—they include advertising that provide him with compensation when someone clicks on one of his videos—he’s violating restrictions against commercial operation of UAS without the agency’s special permission. The FAA’s letter made no mention about what would happen if Hanes didn’t change this.

Girard has a website that advertised UAS photography and video services for hire. At least, it did until he received a phone call from a local FAA official who politely informed him that he would face consequences in the form of fines and penalties if he didn’t take his website offline.

For its part, the FAA seemed suddenly surprised and somewhat bewildered by the outbreak of national attention both stories generated on news and social media. But that shouldn’t come as a shock when potential First Amendment issues are involved.

Although the FAA never demanded that Hanes “cease and desist” from posting his YouTube videos as some claimed, a federal agency telling Girard to take down his website or potentially face harsh consequences was a move tailor-made to trigger outrage among free speech advocates.

Girard pointed out the irony of the FAA threatening him with fines and penalties while the government declined to press charges against the UAV pilot who crashed his aircraft in the prohibited flight space surrounding the White House.

As attorney and dronelaw.com blogger Brant Hadaway told me, it is a “very weird area for the FAA to get into.”

Although Hadaway admits that he doesn’t know why the FAA reacted as it did in these two cases, he offered an opinion.

“This is the FAA trying to stake out the maximum possible amount of territory under its jurisdiction to regulate aeronautical activity,” he said. “By doing that, the FAA is narrowing that carve-out to the greatest extent possible and giving itself the maximum amount of space in which to impose regulations on UAS.”

Hadaway could very well be correct, but the FAA is also diving into uncharted territory with UAS technology that’s developing faster than the speed of regulation. I believe Hanlon’s razor also come into play: Never attribute to malice that which is adequately explained by stupidity.

And, no, I’m not calling the FAA stupid. I’m simply stating that when it comes to UAS, there’s a great deal we must all learn.