Whether the FAA will be able to successfully bring an enforcement case against the pair from Clinton, Connecticut, is a separate matter, the judge said. He laid out the eventual arguments in what may become a test case over the limits of the FAA’s authority over drones. The FAA argues that it controls the airspace down to the ground for purposes of overseeing drones, but Meyer questioned whether that is legitimate.

Authority questioned

“No clause in the Constitution vests the federal government with a general police power over all of the air or all objects that leave the ground,” he wrote. He stopped short of issuing an opinion on that, saying: “This case does not yet require an answer to that question.”

The debate over where FAA’s authority begins and ends holds enormous potential impact over the burgeoning drone industry, said Rebecca Byers MacPherson, a lawyer at Jones Day in Washington who formerly worked as an FAA attorney.

The FAA has traditionally avoided regulating aircraft below 200 feet because airplanes and helicopters rarely fly that low except at airports, MacPherson said. Drones, which fly in those near-ground zones, have led the FAA to claim authority closer to the ground.

Industry impact

How the courts eventually decide that question will impact numerous industries, such as railroads and utilities that may not want unmanned aircraft hovering over their property, as well as individuals like the Haughwouts or neighbors who may fear for their privacy, she said.

Austin Haughwout, who had been a student at a local state college, created a sensation with his drone videos, first posting one last year of a quad-copter holding a black handgun apparently firing shots into a wooded area. It has been viewed more than 3.7 million times. Later last year, he posted a separate video entitled “Roasting the Holiday Turkey” showing a slightly larger drone holding a flame-thrower blasting a turkey on a spit.

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The Haughwouts’ attorney, Mario Cerame, did not immediately return a phone call seeking comment. Cerame has argued that the FAA is overreaching in its investigation.

“You’ve got to stop for a second and think about what’s the jurisdiction of the FAA,” he told reporters after a July 6 hearing on the case in New Haven according to video posted by the Hartford Courant. “What do they have power over? Do they have power over what people do in their backyards on their own property? No one is saying anyone was hurt here.”

The case is Huerta v. Haughwout, 16-cv-00358, U.S. District Court, District of Connecticut (New Haven).

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