The attack on the FAA’s UAS policy has opened up a second front, this time before the United States Court of Appeals for the District of Columbia Circuit. The challenge was brought by Texas EquuSearch, a search and rescue organization, over a cease and desist letter they received from the FAA in February. The organization has used UAS’s in their search efforts since 2006.
The suit claims that the FAA is currently without authority to regulate UAS use below 400 feet in the United States due to the Administrative Law Judge’s decision in the FAA v. Pirker case. The FAA has appealed that decision to the NTSB, and briefing will not be concluded until late next month.
While there are many who are looking to the Texas EquuSearch suit to resolve the legality of commercial UAS operations, it appears more likely that the suit will slip into a morass of procedural issues. The District of Columbia Circuit has jurisdiction to review final actions of the FAA Administrator. It appears likely that the FAA will argue that the “order,” an e-mail from an Aviation Safety Inspector (“ASI”), is not final and therefore not reviewable.
The e-mail states:
As I have told you before, UAS operations that are not authorized violate part 91 (and some others) and hence are illegal. You, through NIST, have a COA to operate that particular UAS in the prescribed airspace, and that’s it. SAR operations outside the COA airspace that meet the Emergency COA (ECOA) criteria, can be requested and approved in short order, even on the weekends & holidays. I have not heard of you requesting and ECOA, or anyone having trouble getting an ECOA within a day or so. Have you had troubles applying for and getting one? If so, I can help fix that. On the other side of the fence, if you are operating outside of the COA provisions, stop immediately. That is an illegal operation regardless if it is below 400ft AGL, VLOS or doing volunteer SAR.
I understand the pressure to get UAS integrated into the NAS is mounting, but it must not be at the sacrifice of what is right or safe.
The e-mail does not state that Texas EquuSearch is forbidden from conducting all operations of any kind. In addition, it suggests that there is a procedure in place to get authorization on short notice if there is an emergency. The ASI states he can help get approvals if there are any problems. While the lawsuit says that Texas EquuSearch has not operated the aircraft since receiving the February e-mail from the FAA, it does not state that approval was asked for and not received from the FAA. On this record, Texas EquuSearch has an uphill climb to get to get a ruling on the merits of their case.
The issues raised in the action are serious, and have strong implications for public safety. The balancing of the need for aerial services such as those offered by EquuSearch against the risk to persons and property on the ground, as well as other aircraft, are the types of administrative decisions the FAA has made for decades. The current confusion in UAS regulation obviously leads frustrated operators to the court for relief, particularly since we are still many months away from a final UAS rulemaking. However, in the absence of a final action by the FAA, the courts are reluctant to short circuit the review process. Moreover, even if the D.C. Circuit is inclined to act, a final ruling on the merits could easily take until the fall, and might even take until next year. As a result, and consistent with what we have said before, nothing short of a comprehensive rulemaking, with the full participation of all stakeholders who operate in the National Airspace, will end the confusion.
(Originally posted April 23, 2014)