FAA v. Pirker: Cleared for Takeoff? Or Just Not Grounded?

Fresh off the presses is the March 6, 2014 Huerta v. Pirker legal decision by the National Transportation Safety Board (“NTSB”) Office of Administrative Judges in the context of unmanned aerial systems (“UAS”) or “drones”–specifically commercial UASs.

Below is a description of the ruling, the ruling itself, and some observations about where things stand now.

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The case stems from the operation of a powered glider in the vicinity of the University of Virginia.  According to the FAA, the glider is an “aircraft” and was operated for compensation in that payment was received for video and photographs taken during the flight.  The operator, Raphael “Trappy” Pirker, was fined (US$) 10,000 by the Federal Aviation Administration (“FAA”) in October 2011 under the regulation that prohibits the operation of an aircraft in a careless or reckless manner so as to endanger the life or property of another.

“Trappy” filed a motion to dismiss the FAA’s order and penalty on the basis that the FAA did not have any legal authority to regulate model aircraft flight operations.  The FAA argued that it has the power to regulate all “aircraft” and that model aircraft fall within the scope of the term “aircraft.” Judge Patrick Geraghty disagreed.

In his order (see below), the NTSB judge said that the FAA has historically considered “aircraft” and “model aircraft” as two different things.  For example, in its policies, the FAA has modified the term “aircraft” by prefixing the word “model” to distinguish one device or contrivance from another, wrote Judge Geraghty.  In addition, an “aircraft” is a “device that is used or intended to be used for flight in the air.”  The FAA requires operators of “aircraft” to obtain airworthiness and registration certification for their machines.  It has never done so with respect to “model” aircraft.  As a result, the NSTB rejected the FAA’s argument that its power to regulate “aircraft” included regulation of “model aircraft.”  According to the NTSB, to believe otherwise would be to believe that “a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the ‘operator’ to the regulatory provisions of the FAA.”

Stated another way, the FAA does not regulate “model aircraft” like Trappy’s in any mandatory way and has not formally enacted any rule that allows it to do so now.  Says the NTSB:

[The FAA] has not issued an enforceable [Federal Aviation Regulation (“FAR”)] regulatory rule governing model aircraft operation; has historically exempted model aircraft from the statutory FAR definitions of “aircraft” by relegating model aircraft operations to voluntary compliance with [FAA guidance on the subject].  [Therefore, Trappy’s] model aircraft was not subject to FAR regulation and enforcement.

The classification UAS simply does not appear in the Federal Aviation Regulations.

In addition, and equally significant, while the FAA has published various notices and policy statements respecting UAS, such policy statements are for internal FAA use and not binding upon the general public.  For the FAA to create a valid law or rule for UAV operation, it must issue a Notice of Proposed Rulemaking (“NPRM”) and publish such notice for 30 days before any new rule becomes effective.  It has not done that, the NTSB found.  That is, at the time of Trappy’s model aircraft operation, “there was no enforceable FAA rule or FAR regulation application to model aircraft or for classifying model aircraft as an UAS.”

What does this all mean?

  • First, don’t over-read this decision.  A Wall Street Journal title says it well: “Judge says FAA Lacks Clear Authority on Commercial Drones.”  The Huerta v. Pirker decision does not say all UAS operators are free to fly their UASs for compensation.  It says the FAA does not appear to have the power (or jurisdiction) to do anything about it if that is what UAS operators decide to do.  For now.  So, arguably, there is a window of opportunity for UAS commercial operation and it would be strange indeed for a law passed tomorrow to apply retroactively to such operations.
  • Second, the decision doesn’t necessarily sanction Trappy’s operations as much as it says that the FAA’s argument is wrong.  In fact, the UAS operator is hardly mentioned in the judge’s opinion.  So, at a minimum (maybe a maximum), Judge Geraghty has told the FAA it cannot have it both ways.  It cannot treat UASs and “aircraft” as the same thing when it has not historically done so before now.  It if wants to treat them as the same for enforcement purposes, it must follow the formal process of enacting regulations that do so.  So, here’s the catch: The FAA may well take steps to do that now and that should give UAS operators some pause as to the long-term effects of the recent Pirker decision.
  • Third, it just takes one knuckle-head.  At the recent “drone” conference in Los Angeles, delegates (including the author of this blog) cautioned that it just takes one unscrupulous or sloppy or truly reckless UAS operator to ruin it for the rest of UAS operators who want to do the right thing and want clear guidance on how to accomplish legitimate business objectives.  Hopefully, the Pirker decision is not taken as a blank check for random UAS operation.  It just takes one headline of an accident to inflame anti-drone sentiment in the US.
  • Fourth, it’s obviously a good idea to classify your UAS a “model aircraft.”  Under the precedence of Pirker, a “model aircraft” is not subject to FAA enforcement.  We know that now as a matter of law. Commercial UAS operators would be savvy to craft their UAS operations under the regulations (recommendations, really) governing model aircraft, therefore.
  • Fifth, be careful: Integration of UAVs into the national airspace is still a different matter.  Under the FAA Modernization and Reform Act of 2012, aviation regulators are working on ways to involve UAS operations into the national airspace (generally speaking, 400 feet altitude).  The Pirker decision does not invite UAS operators to fly into the national airspace where say jetliners fly.  Whatever the enforcement powers of the FAA, an accident or incident caused by a UAS to property or person could be the basis for a private lawsuit.
  • Finallythis isn’t over.  And, it is not even clear what sort of beginning this might be. The FAA may well appeal or go through formal channels to fortify their regulatory authority.

In all, the Pirker decision is important, but perhaps only because it is a “first” by offering some legal guidance for an industry starving for predictable regulations.

Does the decision really say anything more than what we know (or hope) is true in our democracy – that the government cannot act to punish people without proper rules?  Maybe so. If there is a lesson in the Pirker decision, it may be that UAS operators can or should push the envelope and force aviation regulators to focus less on their power to punish in the name of safety and more on their role to stimulate aviation commerce.

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