Judge Rules Against FAA in ‘Landmark’ UAV Challenge

 - March 7, 2014, 10:08 AM
An NTSB judge dismissed the $10,000 fine the FAA levied against Raphael Pirker for flying the Ritewing Zephyr for hire. (Photo: Ritewing RC)

An administrative law judge with the National Transportation Safety Board (NTSB) dismissed the $10,000 fine the FAA levied against Raphael Pirker for flying a small unmanned aircraft, casting doubt on the agency’s ability to regulate their commercial use. In a decision dated March 6, NTSB Judge Patrick Geraghty found that the FAA has no regulations that apply to model aircraft or that classify a model aircraft as an unmanned aircraft system.

In response, the FAA said: “We are reviewing the decision.” The NTSB adjudicates appeals of FAA enforcement actions; the FAA can appeal the ruling to the NTSB.

[The FAA issued a statement in the late afternoon on March 7 saying that it will appeal Geraghty’s ruling. “The FAA is appealing the decision of an NTSB administrative law judge to the full National Transportation Safety Board, which has the effect of staying the decision until the board rules,” the statement reads. “The agency is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.” BC]

The FAA fined Pirker, a Swiss citizen, for operating a Ritewing Zephyr at the University of Virginia in Charlottesville, Va., on Oct. 17, 2011. A marketing company had hired Pirker to supply aerial photographs and video of the UVA campus and medical center. Ritewing RC of Apache Junction, Ariz., produces the aircraft, which is described as an “electric flying wing” that weighs less than five pounds.

In an assessment order, the FAA said that Pirker flew the aircraft “in a careless or reckless manner” in violation of federal aviation regulations (FAR) Section 91.13(a). Further, the agency said he operated the flight for compensation. The FAA currently restricts the commercial use of UAVs.

Pirker sought to have the case dismissed “in the absence of a valid rule for application of FAR regulatory authority over model aircraft flight operations,” according to Geraghty’s finding. The law firm representing Pirker—Kramer Levin Naftalis & Frankel—has described the challenge as a landmark case, “the first federal case ever involving the operation of commercial drones in the United States.” In December, Kramer Levin said that it had formed a new unmanned aircraft systems practice group “in light of the increasing use of drones for commercial purposes…Kramer Levin’s new practice will provide sophisticated and creative problem-solving approaches in this uncharted legal territory.”

In his ruling dismissing the FAA’s fine, Geraghty said the FAA had no basis for asserting FAR Part 91 authority over Pirker’s operation, and that only advisory guidance applies to model aircraft. The FAA “has not issued an enforceable FAR regulatory rule governing model aircraft operation; (and) has historically exempted model aircraft from the statutory FAR definitions of ‘aircraft’ by relegating model aircraft operations to voluntary compliance with the guidance expressed in AC 91-57,” states a copy of the ruling provided to AIN.

In response to the judge’s ruling, Michael Toscano, president and CEO of the Association of Unmanned Vehicle Systems International issued the following written statement: “We are reviewing the decision very carefully and we have been in touch with the FAA to discuss its implications and the agency’s response. Our paramount concern is safety. We must ensure the commercial use of UAS takes place in a safe and responsible manner, whenever commercial use occurs. The decision also underscores the immediate need for a regulatory framework for small UAS.”

Once an NTSB administrative law judge issues a decision, either the party that appealed the FAA’s enforcement action, the FAA itself, or both parties may appeal the decision to the five-member NTSB board. The appeal must be filed with the NTSB Office of Administrative Law Judges within 10 days of the date of the written decision. The party filing an appeal then has 30 days from date of the decision to file an appeal brief with the NTSB Office of General Counsel. The opposing party has 30 days from the date of the appeal brief to file a reply brief. “Once both parties have filed briefs, the full NTSB board will consider the case and issue an opinion and order. After the full board issues its decision, either party may appeal that decision to a United States Court of Appeals within 60 days of the board’s decision,” the NTSB said, responding to an AIN query.