United States: Administrator v. Pirker: NTSB Holds That Existing Regulations Can Apply To Unmanned Aerial Systems (Drones)

On November 18, 2014, the National Transportation Safety Board ("NTSB") issued its long-awaited decision in Administrator v. Pirker. The NTSB reversed the holding of the Administrative Law Judge ("ALJ") and found that 14 C.F.R. § 91.13(a), which forbids careless or reckless operation of aircraft, applies to remote operation of unmanned aerial systems ("UAS").¹

Background

In 2013, the Federal Aviation Administration ("FAA") ordered the assessment of a $10,000 civil penalty against Raphael Pirker for the alleged 2011 operation of a Ritewing Zephyr II—a remotely controlled five-pound powered glider—over the University of Virginia campus in Charlottesville, Virginia. The FAA's Order of Assessment alleged that the Zephyr was a UAS flown in dangerous proximity to individuals, vehicles, buildings, and a heliport, and that the operator was compensated for images recorded by the UAS's onboard camera. Pirker appealed the penalty, arguing that the FAA lacked the authority to regulate the use of UAS as model aircraft.

 On March 6, 2014, the ALJ agreed with Pirker. The ALJ initially found that the FAA intended to distinguish and exclude "model aircraft" from the 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1 definitions of "aircraft." Administrator v. Pirker, Docket No. CP-217 (FAA March 6, 2014) at 3. The ALJ cited FAA policy statements and internal memoranda in support of this historical distinction, and it specifically rejected published FAA policy limiting the application of the existing model aircraft policy to operations conducted for purely noncommercial purposes. Id. at 3-7. Accordingly, the ALJ dismissed the assessment order, holding that the Zephyr was a model aircraft and Pirker's use of the Zephyr was not governed at the time by any enforceable FAA rule or Federal Aviation Regulation ("FAR"). Id. at 8.

The FAA appealed the ALJ's decision to the NTSB.

NTSB: "Model Aircraft" Are "Aircraft"

The NTSB reversed the ALJ's decision and held that the Zephyr is an "aircraft" subject to regulation even though it is also a "model aircraft." Administrator v. Pirker, NTSB Order No. EA-5730 (2014) at 7. The NTSB did not address the FAA's underlying contention that only aircraft used for noncommercial purposes could be considered model aircraft. Rather, the NTSB held that, under the plain language of 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1, "an 'aircraft' is any 'device' 'used for flight in the air.'" Id. at 12. Although the NTSB acknowledged the necessarily broad scope of its holding, it reasoned that the "definitions are as broad as they are clear, but they are clear nonetheless." Id. at 6.

Additionally, the NTSB found that the Zephyr does not belong to any of the categories of aircraft specifically excluded from the requirements of § 91.13(a). Id. at 10. Therefore, § 91.13(a)'s prohibition on "careless or reckless operation" of aircraft applied. Id. at 12. Having concluded that the Zephyr was an aircraft with no regulatory exclusion, the NTSB remanded the case for the ALJ to determine whether Pirker's use of the Zephyr was careless or reckless in violation of § 91.13.

Either party may appeal the NTSB's decision to the appropriate United States Court of Appeals or District Court by filing a notice of appeal within 60 days of the entry of the NTSB's order. A stay of the NTSB's order may also be requested pending judicial review.

FAA Rulemaking

On June 18, 2014, before the NTSB's decision in Pirker, the FAA published a Notice of Interpretation with Request for Comment on its Interpretation of the Special Rule for Model Aircraft, established by Congress in the FAA Modernization and Reform Act of 2012 (the "Act"), 79 Fed. Reg. 36172. Citing 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1, the FAA reiterated its position that "model aircraft" fell "within the statutory and regulatory definitions of an aircraft" and were consequently "subject to FAA oversight and enforcement." Id.

However, the FAA indicated that model aircraft meeting requirements outlined in § 336(a) "would be exempt from future FAA rulemaking action specifically regarding model aircraft." Id. at 36173. In addition to requiring that an exempted device weigh not more than 55 pounds and adhere to certain safety guidelines, the FAA emphasized that exempt aircraft must be flown strictly for hobby or recreational purposes. Id. Importantly, flights incidental to or in furtherance of a person's business will not be exempted. Id. at 36173-74.

Implications

The decision in Pirker is narrow and focuses on the NTSB's determination that unmanned aerial systems, including model aircraft, meet the statutory definition of an aircraft. However, it is noteworthy that the NTSB refused to limit the FAA's authority to impose its existing regulations on these aircraft. Rather than issuing a sweeping decision, the NTSB confined itself to the narrow issue of the definition of "aircraft" under 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1. The NTSB's decision neither endorsed nor rejected the FAA's position that all FAA regulations applicable to aircraft generally apply to UAS. Had the NTSB questioned whether that existing regulatory framework—which clearly does not contemplate or accommodate UAS—was applicable to UAS operations, the FAA would have faced a much more daunting task in incorporating UAS into the National Airspace System through exemptions.

Additionally, as the proposed Special Rule for Model Aircraft indicates, the FAA seems ready to regulate UAS operation by looking well beyond the type of operations conducted and the dangers associated with them, and into the intent of the UAS operator in conducting those operations. It will be interesting to analyze the reach of future UAS regulations, particularly to commercial operations.

Footnote

1 The FAA defines "UAS" as any "device used or intended to be used for flight in the air that has no onboard pilot" along with the attendant elements required for safe operations, including a control station and data link. FAA, U.S. Dep't. of Transp., Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap 8 (1st ed. 2013). The FAA's definition excludes missiles, weapons, exploding warheads, balloons, rockets, and unpowered gliders. Id.

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