A U. S. judge's decision to overturn the FAA's first fine for operating an unmanned aircraft commercially is being described as a “self-inflicted wound,” resulting from the agency's failure to put in place regulations to govern the use of small civil UAVs.

The FAA has appealed the ruling, by National Transportation Safety Board Judge Michael Geraghty, putting the decision on hold. But critics of the agency's foot-dragging on releasing its small unmanned aircraft system (SUAS) rule hope the judge's decision—and the threat of an explosion in unregulated commercial use of UAVs—will force the FAA into action.

From filming weddings and homes for sale to delivering beers to fishermen and packages to doorsteps, the FAA is struggling to stop the burgeoning commercial use of UAVs until it can get regulations governing their use in place. On the shelf for years, the SUAS rule is not expected to be released for public comment until late this year and could take two years to become final.

Meanwhile, prospective users are getting impatient and “illegal” flying is on the rise, exploiting the fact that model aircraft are not regulated. The $10,000 fine slapped on Raphael Pirker for using a UAV to photograph the University of Virginia campus was the first levied by the FAA; Pirker's legal challenge is a test case for agency's ban.

The FAA does not consider a model aircraft flown recreationally to be an aircraft in a regulatory sense. If the same aircraft is flown commercially, however, it becomes a UAV and therefore prohibited. But Geraghty found there are no regulations in place governing the use of UAVs, only policy guidance for FAA employees that is not binding on the public.

“The judge ruled if it looks, walks and quacks like a duck, it's a duck,” says John Langford, president of UAV manufacturer Aurora Flight Sciences. “The FAA says flying a model aircraft is okay as a hobby, but do the same activity with the same hardware as a business and it's not okay. The NTSB judge destroyed the FAA's arguments.”

Manufacturers are not advocating unregulated commercial use of unmanned aircraft. Instead they want the FAA to release the long-stalled SUAS rule and put in place the regulations required for the safe operation of small UAVs. In fining Pirker, “the FAA overreacted, and in doing so destroyed the entire underpinning of what they were operating on. Now they need to release the rule they have had for some time,” says Langford.

The FAA has been coming under increasing pressure, including from Congress, to publish the SUAS notice of proposed rulemaking or begin granting waivers for specific commercial operations, such as using small unmanned helicopters for crop spraying as is already done on a large scale in Japan. Commercial use of small UAVs is thriving in other countries, such as the U.K., where regulations are in place.

Industry is unclear why the SUAS rule is held up inside the FAA, years after an advisory committee provided its recommendations for regulations. “They made the right steps, set up the committee and got the recommendations, but we have not seen anything. This is a self-inflicted wound by the FAA,” says Langford.

Appealing the NTSB administrative law judge's ruling, the FAA says it is “concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.”

“Our paramount concern is safety,” says Association of Unmanned Vehicle Systems International President and CEO Michael Toscano. “We must ensure the commercial use of UAS takes place in a safe and responsible manner.”

Model aircraft flying, meanwhile, has a good safety record under a voluntary program. “We don't see this as making a case for regulating model aircraft,” says the Academy of Model Aeronautics (AMA), arguing Congress's direction to the FAA not to regulate aeromodeling is clear.

“We believe community-based safety programming similar to what has already proved successful for model aviation can be equally effective for small UAS and can allow these platforms to operate safely and harmoniously in the national airspace system,” says the AMA.

Langford, an aeromodeler himself, agrees model aircraft should not be regulated, but admits the community faces a challenge from the rapid growth in highly automated small UAVs flown by people who did not grow up with the safety culture of model aircraft flying.

What is clear is that even a successful appeal against the Pirker decision will not take the pressure off the FAA to put safety rules in place quickly— regulatory or voluntary—before the “Wild West” of small commercial UAV operations becomes ungovernable.