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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