A National Transportation Safety Board (NTSB) panel has reversed a decision made earlier this year by an NTSB law judge, finding that a man’s remote-controlled model plane was indeed an aircraft. Raphael Pirker could have to pay the $10,000 fine that was originally ordered for violating the provision that prohibits commercial use of an unmanned aircraft.

As we reported in March 2014, Pirker used a RiteWing Zephyr II remote-controlled flying wing to record aerial video of a hospital campus for use in a television advertisement back in 2011. The year before, he posted a video filmed from a drone flying over New York City—including a close shot of the Statue of Liberty. Law enforcement did not interfere with Pirker, and he even gave the New York Police Department and the National Park Service a shout-out for "staying friendly, professional, and positive." But the Federal Aviation Administration (FAA) wasn’t amused and brought the civil case against Pirker.

Writing for the board in the judicial order, Acting Chairman Christopher Hart states:

Respondent [Pirker] points to the legislative history of the Act—as well as a reference in the [Federal Aviation Act of 1958] to policies in furtherance of "air transportation"—as evidence Congress intended the term "aircraft" to mean a manned aircraft. However, the Act did not contain such a distinction, and the definition’s use of the passive voice in describing a device that is "used" for flight does not exclude unmanned aircraft. If the operator of an unmanned aircraft is not "using" the aircraft for flight and some derivative purpose—be it aerial photography or purely recreational pleasure—there would be little point in buying such a device. In summary, the plain language of the statutory and regulatory definitions is clear: an "aircraft" is any device used for flight in the air.

“We are reviewing the options”

Brendan Schulman, an attorney at Kramer Levin Naftalis & Frankel LLP who represented Pirker in the case, told Ars that the result is actually more limited than what it may seem.

"While we disagree with the decision, today’s NTSB ruling in the Pirker case is narrowly limited to whether unmanned aircraft systems are subject to an aviation safety regulation concerning reckless operation, an issue that the NTSB has said requires further factual investigation before a penalty is imposed," he wrote in an e-mail.

"The more significant question of whether the safe operation of drones for business purposes is prohibited by any law was not addressed in the decision, and is currently pending before the District of Columbia Circuit in other cases being handled by Kramer Levin," he said. "We are reviewing the options for our next steps in the Pirker case."

Nevertheless, the (FAA), which appealed the case up to the NTSB panel, lauded the decision.

"The National Transportation Safety Board affirmed the agency's position that unmanned aircraft systems (UAS) meet the legal definition of ‘aircraft,’ and that the agency may take enforcement action against anyone who operates a UAS or model aircraft in a careless or reckless manner," Les Dorr, an FAA spokesman, told Ars.

"The FAA believes Mr. Pirker operated a UAS in a careless or reckless manner, and that the proposed civil penalty should stand. The agency looks forward to a factual determination by the Administrative Law Judge on the ‘careless or reckless’ nature of the operation in question."

Ryan Calo, an expert in drone law at the University of Washington, said that he was not surprised that the decision was reversed. But he thought that Pirker and his lawyers could have sued for a different reason.

"I never thought this was the right argument: the better argument is the First Amendment," he said. "How is it that some people are allowed to fly but not others?"

"If you, the FAA, are going to permit some uses but not others, you need to explain your decisions," added Calo. "Because if you don’t then it looks as though folks with legitimate reasons in the public interest—like, journalists filming protests—but allowing others that are not—like surveying people's land or making a movie—doesn’t make sense."