Friday, March 7, 2014

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.

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 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 is 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.”

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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