Here’s the latest ruling on commercial drones.
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L. Gordon Crovitz
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March 16, 2014 6:36 p.m. ET
Since 2007, the Federal Aviation Administration has threatened to prosecute anyone who uses a drone for commercial purposes. Regulators have managed to block the development of drones in the U.S. even as this new technology has quickly taken to the skies overseas.
This month a federal administrative judge held that the FAA has no legal authority to meddle in the market and dismissed a fine levied against an operator who defied regulators by getting paid to use a drone to film the University of Virginia campus. Judge Patrick Geraghty of the National Transportation Safety Board ruled that the agency had only issued internal guidance on drones and hadn’t followed any process to apply restrictions to the public. He ridiculed the FAA’s broad assertion of power to regulate drones by saying the agency could use the same argument arbitrarily to block “a flight in the air of a paper aircraft, or a toy balsa wood glider.”
The FAA has appealed, still intent on grounding one of the most promising new industries made possible by the Internet. Instead of approving the safe use of drones, regulators have undermined innovation to block a new technology. The FAA has allowed only two commercial uses of drones, both in the remote Arctic off Alaska. Congress got fed up with agency foot-dragging and in 2010 passed a law ordering the agency to issue rules making drones legal for commercial use by 2015. The agency says it won’t meet the deadline.
A camera drone flies near the scene where two buildings collapsed in East Harlem in New York City on March 12. Reuters
While bureaucrats dither, many U.S. businesses are engaging in regulatory civil disobedience. The Fresno Bee recently acquired a drone for gathering news, although other news organizations have received cease-and-desist orders. Director Martin Scorsese used a drone to film a scene in “The Wolf of Wall Street,” though the FAA has gone after other film companies. Real-estate companies use drones to make videos about properties for sale. Baseball teams including the Washington Nationals use drones to monitor the performance of players during spring training.
“The more the FAA acts like a big Daddy, behemoth government agency that is imposing excessive restrictions,” former FAA chief counsel Ted Ellett told Politico recently, “the more the feeling of ‘I’m an American, they can’t tell me what to do’ kicks in.”
The FAA allows “recreational” use of low-flying light drones. Consumers can choose among quadcopters, hexacopters and octocopters, most of which are made outside the U.S.
Governments in other countries have encouraged drones. Jeff Bezos hopes U.S. regulators will someday permit Amazon to deliver products via drone. Australia has already blessed a Sydney-based textbook retailer’s plan to do just that. A video of a drone flying into an active volcano in the small Pacific island nation of Vanuatu went viral last week. A recent Wall Street Journal report gave these examples of businesses using drones: farmers in Japan to spread pesticides on 40% of rice fields, miners in Switzerland to make three-dimensional maps, and construction workers in Britain to survey sites of nuclear power plants.
Washington’s antibusiness prohibition of drones is reminiscent of the beginnings of the Internet. For years, commercial use was a crime. A handbook issued at MIT MITD -13.50% in 1982 warned: “It is considered illegal to use the ARPAnet for anything which is not in direct support of government business. . . . Sending electronic mail over the ARPAnet for commercial profit or political purposes is both anti-social and illegal . . . and it is possible to get MIT in serious trouble with the government agencies which manage the ARPAnet.”
President Obama tried to rewrite history with his “you didn’t build that” speech in 2012. He asserted: “The Internet didn’t get invented on its own. Government research created the Internet so that all companies could make money off the Internet.” In reality, the Internet took off only in the 1990s, when Congress liberated it from exclusive use by the government.
The Internet is now permissionless: Websites and apps are launched without government approval. But many of the next generation of innovations are stuck in a mother-may-I morass of regulation. This includes iPhone-controlled, WiFi-connected and GPS-reliant drones as well as other “Internet of things” innovations like connected cars and medical devices. Existing tort and contract law cover most safety and privacy concerns. In any case, there’s no excuse for bureaucrats to criminalize innovation while they delay approvals.
A lightly regulated Internet has shown entrepreneurs and consumers what can happen when government gets out of the way. Washington’s refusal to allow drones to take off is a reminder that most industries in the U.S. remain hostage to slow-moving, risk-averse regulators. The freedom to innovate without asking permission should become the rule for all U.S. industries, not the rare exception.