FAA vs. Pirker: An Examination of the NTSB Opinion and Order

TL;DR: In the case of the Federal Aviation Administration (FAA) vs. Raphael Pirker, the National Transportation Safety Board (NTSB) says that “model aircraft” are aircraft, and thus subject to regulation by the Federal Aviation Administration.  This contradicts the decision by an administrative law judge (ALJ) who decided that the FAA’s claim was invalid because (among other reasons) Mr. Pirker’s model aircraft did not meet the definition of aircraft as Congress and the FAA had been defining it.  The case is returned to the ALJ to adjudicate strictly on the question of whether Mr. Pirker’s conduct was “careless and reckless so as to endanger the life or property of another”. Though the news media has generally been pointing this decision as a victory for the FAA, this case is not closed and it is certainly not the last word on the matter. NTSB were narrowly focused upon the definition of the word “aircraft,” and made no statement at all about the FAA’s ban on commercial UAV operations, nor First Amendment rights.

Many, many headlines have come out making it seem like the NTSB ruled totally against Raphael Pirker, and now he has to pay up the fine.  That’s not entirely accurate, and this case isn’t yet shut and could still affect the UAS regulatory landscape.  To be a little more complete, I am going to summarize what I believe to be the whole story then take a guess as to what will happen next.

Mr. Pirker with his airplane.

What the FAA said to Raphael Pirker

  • In October of 2011, the University of Virginia hired Raphael Pirker to capture video and stills of the campus and medical center using his foam, 4-ft wingspan UAS.
  • In April of 2012, the FAA sent him a letter telling him he was fined because of illegal and reckless operation of a UAV, which included a twelve examples of flying too close to buildings, people, streets, etc., the fact that he didn’t have a pilot certificate, and the fact that he was operating the aircraft for compensation. At the end of the letter was a notification that he was being assessed a $10,000 fine.
  • Mr. Pirker appealed to the National Transportation Safety Board Office of Administrative Law Judges on the basis that the FAA did not have regulatory authority over his actions.

What the ALJ said

  • The ALJ ruled that Mr. Pirker’s foam airplane was a “model aircraft” rather than an “aircraft.” His rationale was that the FAA’s definition of “aircraft” is overly broad, and strictly speaking would give the FAA authority over balsa gliders and paper airplanes. This obviously absurd example would lead a reasonable person would assume that the FAA’s broad definition to be practically limited.  Considering Congress’s 2012 FAA Modernization Re-authorization and Reform Act, and FAA Advisory Circular 91-57, “model aircraft” have been considered as something different from “aircraft” when applying FAR 91.
  • Further, Policy Notices 05-01, 07-01, and 08-01, and this policy memo were non-binding, and any attempt construe them as binding regulation was circumventing laws about proper rulemaking procedure.

What the FAA’s appeal said

  • The FAA said that Mr. Pirker’s foam airplane was an aircraft, and that “model aircraft” are subject to FAA regulation. That AC 91-57 was not relieving model aircraft operators of following regulations, but a tacit agreement that if they followed the voluntary guidelines, they would be left alone.  Additionally, they asserted that the law and AC 91-57 says that model aircraft are defined by “sport or recreational use,” (as opposed to business or commercial purposes), thus this was not a model aircraft.

Summary of the amicus curae briefs submitted to the panel

  • Three amicus briefs (here, here, and here) supported the Pirker decision, claiming that a) the FAA’s prior policy statements, statements that their policy memos are not publicly binding, and admission that UAS operators cannot comply with Federal Aviation Regulations (FARs) add up to a lack of authority to levy civil fines; b) regulatory uncertainty is inhibiting growth of a legitimate UAS business market; c) that attempting to comply with the FARs would cost thousands of dollars, even to fly small, simple aircraft costing only hundreds of dollars, is pricing small entrepreneurs out of the market unnecessarily; d) Mr. Pirker’s aircraft never entered the FAA’s definition of navigable airspace (greater than 1000 feet above ground in this case) and thus is not subject to their regulation; e) the FAA has been engaged in governmental overreach and bullying of UAS operators on a broad scale, and this action falls in that category.
  • News media organizations also filed a brief furthering the argument in support of Pirker. They claim that a) a complete ban on commercial UAS is hindering First Amendment press rights; b) UAS flight could substantially improve news coverage; c) that privacy concerns are addressed by state oversight and do not need federal attention; and d) that the ad-hoc cease-and-desist letters from the FAA have been circumventing notice-and-comment rulemaking procedures.
  • The National Agricultural Aviation Association filed a brief in support of the FAA, saying that Mr. Pirker did not follow the safety guidelines outlined in AC 91-57, and thus was subject to penalty by the FAA.
  • Four former FAA officials filed a brief that asserted that the FAA has authority to protect air safety regardless of whether an aircraft is model or not, and that the FAA has consistently treated UAS as aircraft. Mr. Pirker filed a brief in response to this one, claiming that these officials were not impartial and had a vested personal interest in supporting the FAA’s position.

What the NTSB panel said

  • So now, to the ruling: the NTSB supported the FAA’s assertion that Mr. Pirker’s foam airplane was indeed an “aircraft.” They specifically declined “to address issues beyond the threshold question that produced the decisional order on appeal…” In other words, they refused to rule on constitutional issues or on the propriety of the FAA’s rulemaking.
  •  They sent the case back to the ALJ with specific instructions to determine solely whether Mr. Pirker’s flight was “careless and reckless so as to endanger the life or property of another.”

What now?

  • This is strictly non-expert opinion and observation, but it appears that this is a very narrowly defined decision. The NTSB is a safety panel, not judges, and they are primarily concerned with aviation safety rather than law or constitutionality.  They said nothing at all about commercial operation or rule-making or privacy or the First Amendment, meaning that these are still open questions (though not likely to be decided in this case.)
  • It remains to be seen if the ALJ deems the operation of the aircraft to be “careless and reckless so as to endanger the life or property of another.” This ruling is not a given one way or the other since the damage and injury which could potentially be caused by a 4-ft foam airplane is very limited, despite the apparently footloose mode of operation (for example, causing a person on the sidewalk to have to dodge to avoid the airplane).
  • Three more lawsuits have been filed against the FAA, and unlike this one, they directly address the FAA’s rulemaking procedures and limitations on free press, and will be decided in federal court, whose decisions will the be the law of the land which the FAA will be required to comply with.

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