UAS: Texas Equusearch – And The Big Loser Is . . . ?

The drama between the FAA and Texas Equusearch ended just as we predicted.  The United States Court of Appeals for the District of Columbia Circuit dismissed the suit without reaching the merits.  No matter what kind of spin the Equusearch lawyer places on it, the big winner is the FAA!

Texas Equusearch filed suit against the FAA in April contesting what it claimed was a final order from the FAA preventing it from using its UASs to support its non-profit search and rescue efforts.  However, as we pointed out, the “order” was simply a statement of existing FAA policy from an FAA Aviation Standards Inspector (ASI), and actually included an offer to help Texas Equusearch get proper authorization for any flight they wanted to make, even if it was on a weekend or holiday.

In rejecting Texas Equusearch’s challenge, the D.C. Circuit noted that it only has jurisdiction to review final FAA orders.  The Court found that the email from the ASI had none of the hallmarks of a final order, and as a result, there was nothing for the court to review.

The FAA was, understandably, pleased with the result.  They immediately issued a lengthy press release  reaffirming FAA policy that all UASs are aircraft, and that a “flight that is not for hobby or recreation requires a certified aircraft, a licensed pilot and operating approval.”  The FAA made clear that it would act to stop any UAS operation that was a danger to the safety of the national airspace.

Texas Equusearch and its counsel, however, disagree, and have treated the dismissal of their lawsuit as a victory.  Texas Equusearch stated immediately after the decision that it was pleased with the outcome, and its counsel stated that the organization was now “free to resume its humanitarian use of drones . . . .”

In order to determine who actually won, we have to look back at the relief sought by Texas Equusearch.  The suit asked the D.C. Circuit to find that the FAA was without authority to stop any commercial UAS operations, and further asked for an emergency order staying any FAA efforts to limit UAS flights.  As of today, the FAA’s authority is completely intact.  The FAA’s position towards Texas Equusearch’s activities is unchanged.  As a result, Texas Equusearch is no more free to operate its UASs today than it was back in April.  Texas Equusearch is still left with the same options previously outlined by the FAA. It can follow the FAA’s rules or break them.  If it breaks the rules, it has the option of appealing any fine through the administrative courts, and only then, getting a ruling from the D.C. Circuit settling the question.

As a result, we would have to call this one a win for the FAA, and as we predicted, the suit was largely a waste of time and effort for all of those involved.

(Originally posted July 23, 2014)

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