United States: UAS: An Aircraft By Any Other Name Is Still An Aircraft

Last Updated: June 17 2016
Article by Mark McKinnon

When is an aircraft not an aircraft? At first glance, this would seem to be the type of question that Lewis Carrol would ask, as it seems to answer itself. An "aircraft," by definition, is always an "aircraft," in much the same way that a "duck" is always a "duck," particularly when it both walks and quacks like one. Of course, if you are facing potential criminal and civil penalties, even self-evident questions become worthy of extensive litigation and briefing.

Last year, Austin Haughwout posted two videos on YouTube demonstrating his modifications of a UAS to carry a gun and a flamethrower. In both videos, the UAS are shown firing its weapons. Needless to say, the FAA was not particularly pleased with the weaponization of these UAS, and began an investigation. The FAA issued a number of administrative subpoenas to Mr. Haughwout seeking documents and information about his modifications of the aircraft, the flights, and whether he generated any income from the videos.

According to news reports, Mr. Haughwout believes that the FAA does not have enough evidence to prosecute him, and he does not intend to voluntarily give the FAA any evidence. As a result, the FAA has filed an action in the United States District Court for the District of Connecticut to obtain a court order compelling a response to several subpoenas. Mr. Haughwout's primary argument is that, in this case, his aircraft is not an aircraft, the FAA has no regulatory authority over him, and the statute making it a crime to arm an aircraft does not apply.

Mr. Haughwout is pressing the same arguments made and rejected in the Pirker appeal before the NTSB two years ago. He argues that the FAA's definition of an "aircraft" is "unreasonable, patently absurd, obviously wrong, [and] clearly incorrect . . ." because, under this same definition, anything that flies would be an aircraft including a paper airplane, baseball, or hand tossed pizza dough. Since calling a ball of pizza dough an aircraft is "absurd," Mr. Haughwout claims that calling his electrically powered remote controlled machine whose only purpose is to fly under its own power from place to place is similarly absurd.

The FAA, on the other hand, counters by relying heavily on the NTSB's Pirker decision, which held that UAS are aircraft and that the FAA has the ability to pursue persons who operate them carelessly and recklessly. In addition, the FAA also relies on the FAA Modernization and Reform Act of 2012, which was not at issue in Pirker, as strengthening its position. The FAA points out that both Unmanned Aircraft System and Model Aircraft are defined in the Act as types of aircraft.

At the end of the day, Mr. Haughwout's opposition to the subpoena faces an enormous obstacle, namely, the standard of review. The Court must give strong deference to the FAA's interpretation of its own regulations. Essentially, the Court would have to find that both that FAA, and the NTSB, which has appellate authority over NTSB enforcement actions, have no idea what their regulations mean, and have adopted interpretations that have no basis in the law. It will not be enough for the Court to simply disagree with the definitions supplied by the FAA. Even if Mr. Haughwout does prevail before the district court, he will face the even more difficult task of persuading a three judge panel in the Second Circuit that the FAA's arguments are frivolous.

This will definitely be a case that is worth watching as it travels through the legal system.

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