Make War or Make Rules? FAA Appeals “Pirker” Drone Case

The Federal Aviation Administration (“FAA”) is not pulling punches.  And, the agency is not happy either.

Recall that it imposed a “civil penalty” or fine of $10,000 on the operator of a power glider aircraft.

Why?  Well, the FAA says the operator (Raphael Pirker) deliberately operated his unmanned aerial vehicle (“UAV”) in proximity to vehicles, buildings, people, streets, and structures in the vicinity of the University of Virginia in violation of an aviation regulation that prohibits the careless and reckless operation of an aircraft.

Queue the lawyers, who challenged the decision, leading to a decision that Pirker’s UAV was not an “aircraft,” but a “model aircraft” for which there are no rules that would allow the civil penalty to stand.  This position was expressed in an order by an administrative law judge dated March 6, 2014.  (Notice this is not a court proceeding, but instead, as is true in many aspects of aviation law, handled administratively by the National Transportation Safety Board, which has the power to review certain actions of the FAA.)


This is now on appeal.  Says the FAA: “The ALJ’s reasoning for finding that a Ritewing Zepher power glider is not an aircraft under the statutory and regulatory definitions of the word ‘aircraft’ is both illogical and deeply flawed.”

Essentially, the FAA says that it’s definition of “aircraft” and not the the administrative law  judge’s should win the day.  “The FAA,” says the FAA, “stands in a better place than [the administrative judge] to know both what the statutory and regulatory definitions of the word ‘aircraft’ mean and the parameters of its authority to enforce its own regulations.”

It is a valid point, actually.

Under what is now referred to as the Chevron doctrine (arising from a 1984 decision of the Supreme Court of the United States) an agency’s interpretation of its rules respecting a subject matter over which it has jurisdiction is entitled to substantial deference.  Given this law, in the FAA’s mind, then, a Ritewing Zepher power glider is an aircraft … because it says so.  And, the administrative judge’s interpretation to the contrary – that the FAA somehow differentiates “model aircraft” from aircraft” under existing law -was erroneous, constituting, an “arbitrary circumscription of what the word ‘aircraft’ means.”

The FAA’s entire appeal hinges almost totally on its argument that the administrative law judge “impose[d] his own novel interpretation of the word ‘aircraft’ that excludes what he calls ‘model aircraft.”

If you believe that it was a mistake to consider Pirker’s aircraft to be a “model aircraft,” then the FAA goes on to argue that the the administrative law judge also was wrong because he did not bother to say why Pirker’s aircraft is a “model aircraft.”  And, it would follow that the administrative law judge was also wrong to conclude that an FAA advisory encouraging “modelers” to voluntarily comply with some safety guidelines can somehow be interpreted to mean that the FAA tacitly waived or exempted all “model aircraft” operators from the FAA”s regulatory requirements.  Ah, the legal process.

Putting an analysis of the FAA’s syllogism (house of cards?) aside, the tone of the FAA”s appeal brief is unmistakable – it seems to be frustrated that it is being accused of overreaching in an order that the FAA itself considers overreaching.  At bottom, the FAA’s position is not unsympathetic – it is just trying to do its job of deterring conduct that is inherently careless or reckless in that it potentially places persons and property of others in peril.  (Important considerations when you consider what might have happened in Australia.)

And, here, the FAA was deliberate in detailing and inventorying why it believes this case represents a clear case of such perils, stating:

  • The UAV was operated directly towards an individual standing on a University of Virginia sidewalk “causing the individual to take immediate evasive maneuvers so as to avoid being struck by the aircraft”;
  • The UAV was operated through a tunnel containing moving vehicles; under a crane; below treetop level over a tree-lined walkway;
  • The UAV was operated within approximately 15 feet of a statue; within 50 feet of railway tracks; within approximately 50 feet of numerous individuals; within approximately 20 feet of an active street containing numerous pedestrians and cars; within 25 feet of numerous buildings on the University of Virginia campus;
  • On at least three occasions, the UAV was operated under an elevated pedestrian walkway; above an active street; directly towards a two-story building on the campus below its rooftop and making an abrupt climb in order to avoid hitting the building; and within 100 approximately 100 feet of an active heliport.

How does this not show careless and reckless, the FAA seems to be saying in exasperation?

And, why did the administrative law judge not conduct a hearing to receive and weigh evidence related to the “method of propulsion” or Pirker’s aircraft and the “duration of [its] flight” – two factors the administrative law judge seemed to see as relevant to the definition of “aircraft.”

Stakeholders on both sides of the commercial UAV operations have predictions about how the NTSB might rule.  My March Madness bracket is busted and it is not a useful exercise to predict such things in any event.  That said, there is one comment in UAV circles that is worth thinking more about: Why is the FAA fighting over definitions instead of just expediting the design and implementation of sensible and and responsible and predictable policies and regulations for commercial UAVs?

Everything else is just academic otherwise.

The FAA’s appeal brief is reproduced fully here: