Dear EquuSearch . . . . You Still Lost!

A new chapter has opened in the long running struggle between Texas EquuSearch and the FAA. As we reported earlier, Texas EquuSearch lost its lawsuit seeking an injunction to prevent the FAA from enforcing its restrictions on UAS operations.  With the suit dismissed, Texas EquuSearch had two options, either follow the FAA’s rules, or break the rules and fight.  Texas EquuSearch has chosen “fight.”

Texas EquuSearch announced Wednesday that it used a UAS to aid in the search for a 57 year old man who had been missing since July 9.  The UAS is equipped with a camera that takes between 50 to 100 photographs of an area at a time, which are then reviewed for signs of the missing person.  Texas EquuSearch stated that it did not give the FAA prior notice of the operation because the search was not done “near federal airspace, such as surrounding an airport.”

In reading the above Associated Press story, we have noticed an unfortunate trend in the reporting on the Texas EquuSearch decision.  A great many stories have presented the ruling from the perspective that Texas EquuSearch is free to fly its UASs because the FAA rules are somehow invalid.  For example, the AP story contains the following:

In its ruling, the appeals court said it can’t review the case because the email Texas EquuSearch had received didn’t represent the FAA’s final conclusion on the use of drones.  Final rules on drone use are expected next year.

The passage incorrectly implies that the D.C. Circuit’s dismissal of the lawsuit was based on the lack of a final rulemaking.[1] Even more blatantly, the following quote from a story on a Dallas ABC television station makes us wonder if reporters are even trying to understand the issues:

The flight is the first since the group received a favorable appeals court ruling earlier this month.

The news coverage seems to have largely overlooked the FAA’s lengthy post-decision analysis,which correctly stated that the decision had no effect at all on the FAA’s authority to regulate UAS operations.

In deciding to ignore the FAA’s well publicized opinion on the propriety of Texas EquuSearch’s UAS operations, we hope Texas EquuSearch and its counsel were not buying into their own hype that they won the case.  Declaring victory and actually winning are two different things.

Now that Texas EquuSearch has followed through on its threat to continue flying, the ball is in the FAA Chief Counsel’s court.  It may be that the FAA does not have the stomach for a fight, or it may be that the FAA cannot let this very public challenge to its authority go uncontested.  Time will tell.

[1] The proposed rules for small UAS operations will be published this year, but the final rules will not go into effect until after a length notice and comment period, which will take until 2015 to complete.

(Originally posted July 31, 2014)

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