Need to Know provides context and resources to help you get a better understanding of recent developments in the world of drones.

By Dan Gettinger, @GettDan

Earlier this week, the National Transportation Safety Board, an independent U.S. government agency responsible for investigating major accidents and incidents, remanded the case of Raphael “Trappy” Pirker back to an administrative law judge. The move overturns an earlier decision in March, in which a judge ruled that the FAA had no authority to fine Pirker $10,000 for his allegedly reckless use of a drone over the University of Virginia campus on October 17, 2011. The decision effectively reaffirms the Federal Aviation Administration’s authority to regulate drones as aircraft. The two main issues at stake are whether drones classify as “aircraft” under the law as it stands now, and whether the FAA has the authority to regulate commercial drones. Here’s what you need to know:

Definitions and Rules

Title 49 U.S. Code § 40102(a)(6) defines “aircraft” as “any contrivance invented, used, or designed to navigate, or fly in, the air.”

The Federal Aviation Regulations (FAR) are the FAA’s rules governing all aircraft activity inside the United States. The FARs are part of the Code of Regulations, also known as administrative law, that set out the rules as established by federal agencies and departments. The FARs are intended to promote safety in the air in order to protect pilots, crew, and passengers from risk.

In 1981, the FAA released Advisory Circular 91-57 (“AC 91-57”). The “Model Aircraft Operating Standards” suggested that pilots not fly above 400 ft., keep the aircraft in sight, and avoid noise sensitive areas like neighborhoods. These standards are not laws or regulations, but rather, voluntary guidelines that the FAA encourages all model aircraft operators to follow.

Interim Operational Approval Guidance 08­01 (Guidance 08­01) was issued in 2008, and offers guidance to Air Traffic Organization officers for how to safely operate and monitor Unmanned Aircraft Systems (UAS). This is an internal document meant as a best practices guide until official federal regulations are established.

Under the FAA Modernization and Reform Act of 2012, the FAA is required to establish comprehensive regulations for the safe integration of drones into U.S. airspace by September 2015. However, drone operators are not waiting until the FAA regulations are established. This means that the FAA must essentially enforce the safe use of drones without clearly established, codified regulations. Many drone users are watching the Pirker case closely, as it has serious implications for the FAA’s ability to regulate and limit aerial drone activities between now and the regulations deadline, which is likely to be delayed beyond the September, 2015 deadline.

The Case

On June 27, 2013, the FAA ordered Raphael Pirker to pay a $10,000 fine after reviewing a video he made with a drone flying over the University of Virginia Campus. The order alleged that Pirker broke a variety of airspace rules: he flew too close to railway tracks, a heliport, campus buildings, a statue, pedestrians, an active roadway, under a crane and through a tunnel. The FAA alleged that Pirker was paid for the photos and video by Lewis Communications, an advertising company hired by the UVA Medical School. Read On: Administrator’s Order of Assessment

Administrator’s Order of Assessment The FAA claimed that Pirker was in violation of Part 91, Section 91.3 of the Federal Aviation Regulations (FAR), which prohibits anyone from operating an aircraft in a careless or reckless manner. The FAA also alleged that Pirker violated the ban on commercial drones, a position that the FAA established in a 2007 policy statement. (Policy statements, which are often issued by federal agencies, are not concrete regulations, but rather guidelines that serve as placeholders until regulations can be enacted through the legislative process.)

Pirker appealed the order, and on September 27, 2013, submitted a motion to dismiss the charges. Pirker and his lawyers contended that the FAA did not have the authority to regulate drones. In the motion, Pirker and Brendan Schulman, his attorney, argue that the FAA “expressly made clear that [the operation of model aircraft] was not subject to its federal aviation regulations (FARs) and was instead governed only by ‘voluntary’ guidelines.” Furthermore, Pirker and Schulman argued, the FAA lacks jurisdiction because he was not flying within navigable airspace, which is defined in U.S. law as “airspace above the minimum altitudes of flight . . . including airspace needed to ensure safety in the takeoff and landing of aircraft.” In the motion, the respondent suggests that the FAA, motivated by an anti-drone sentiment among the public and politicians and falling behind on developing a full set of rules for drones, has “made an effort to delay and curtail civilian “drone” activity by asserting in policy statements that ‘business’ or ‘commercial’ operations are prohibited and that some or all of the FARs apply.” Read On: Motion to Dismiss

NTSB Decisional Order: Huerta v. Pirker (Docket CP-217)

On March 6, 2014, the case went before Patrick Geraghty, an administrative law judge for the National Transportation Safety Board. Before joining the NTSB in 1975, Geraghty worked as a trial lawyer for the Federal Aviation Administration; he was a naval aviator in the Marines and holds an airline transport pilot certificate and a flight instructor certificate. He ruled in favor of Pirker. In his decision Geraghty argued that:

While the term “UAS” [unmanned aerial system] doesn’t appear in the Federal Aviation Regulations, Pirker’s drone is similar to a model aircraft. Yet, there is a difference between “aircraft” and “model aircraft.” Historically, the FAA has recognized this distinction by making the rules for “model aircraft” operators voluntary and separate from those applying to “aircraft.” For example, the FAA exempts model aircraft pilots from many of the rules governing pilots such as the need to obtain an Airworthiness and Registration Certificate for the aircraft.

While the FAA has tried to extend FAR 93.1 to cover the operator of any aircraft, it isn’t logical to extend the same regulatory standards that apply to pilots of manned aircraft to the operators of a small drone that has little in common with a large manned aircraft. The application of such reasoning, the judge argued, “would…result in the risible argument 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 [14 C.F.R. part 91 and] Section 91.13(a).”

Policy guidance 0801—the FAA’s best practices handbook—was intended for internal use only and cannot, writes Geraghty, serve as a “jurisdictional basis for asserting Part 91 FAR enforcement authority on model aircraft operations.”

model aircraft operations.” In conclusion, Geraghty ruled that “at the time of Respondent’s model aircraft operation, as alleged herein, there was no enforceable FAA rule or FAR Regulation, applicable to model aircraft or for classifying model aircraft as an UAS.”

NTSB Opinion and Order: Administrator v. Pirker

The FAA immediately appealed the case, and on November 18, an NTSB board overturned the March 6 ruling. The case was returned to an administrative law judge. The board found that:

The definition in Title 49 U.S. Code § 40102(a)(6) of an aircraft as “any contrivance invented, used, or designed to navigate, or fly in, the air” includes “any aircraft, manned or unmanned, large or small.” According to the NTSB, while “[The FAA] may choose to exclude certain types of aircraft in a practical sense, by refraining from bringing a charge under the FARs against a model aircraft operator,” the definition of the law does not exclude certain types of aircraft. Seeing as the FAR 93.1(a) applies to any “aircraft,” Pirker’s Zephyr drone is covered by these regulations. Therefore, Pirker is liable to be charged with flying an aircraft in a reckless and careless manner and an administrative law judge must now weigh whether he indeed did so.

The NTSB decision effectively means that drone pilots will not be able to challenge FAA enforcement actions (such as fines and cease-and-desist letters) on the basis that drones are not aircraft unless the FAA’s forthcoming regulations on drones recognize there is a difference between the two.

To read our interview with Trappy, click here.

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