Battle Lines Drawn in NTSB Review of Pirker Case

 - May 20, 2014, 10:23 PM
The FAA fined Raphael Pirker for flying the Ritewing Zephyr to take aerial video. (Photo: Ritewing RC)

Battle lines have formed in the National Transportation Safety Board (NTSB) review of the $10,000 fine the FAA charged Raphael Pirker for operating a small unmanned aircraft. Six parties filed “friend of the court” amicus briefs by the NTSB’s May 16 deadline, including a coalition of major news media organizations supporting Pirker’s position.

Last June, the FAA fined Pirker, known as “Trappy” in the radio-controlled, “first-person view” world of aerial videographers, for allegedly recklessly flying a Ritewing Zephyr power glider at the University of Virginia in Charlottesville, Va., on October 17, 2011. A marketing company had hired him to supply aerial photographs and video of the UVA campus and medical center. Already known for flying a Zephyr around the Statue of Liberty, Pirker sought to have the civil penalty dismissed.

On March 6, NTSB Administrative Law Judge Patrick Geraghty dismissed the penalty, finding that the FAA has issued guidance but no regulations that apply to model aircraft or that classify a model aircraft as an unmanned aircraft system. The FAA appealed the decision to the NTSB board, where the case now stands.

Four of the six parties filing amicus briefs support Pirker’s position in arguing that Geraghty’s decision should be upheld. They include: Angel Eyes UAV, of Naples, Fla., which consults on the commercial use of unmanned aircraft; the Curran & Curran law firm of Encinitas, Calif., representing 20 parties that have received cease-and-desist orders from the FAA and “who have asked not to be specifically identified…for fear of additional and future retaliation,” by the agency; and Attorney Debbie Weecks, of Sun City, Ariz., whose brief seeks “to protect the interests of an undisclosed young entrepreneur’s worthwhile photographic and videographic endeavors to express himself artistically, creatively and freely, in a responsible manner.”

The Washington, D.C., law firm of Holland & Knight filed a brief on behalf of the news media “amici,” a group of major newspaper and magazine publishers, broadcast and cable television companies, wire services, websites and journalists’ associations. Among them are the Associated Press, The Washington Post, The New York Times, Cox Media Group, Hearst Corporation and Gannett. The parties contend that the FAA’s regulation of unmanned aircraft restricts free speech. “This overly broad policy, implemented through a patchwork of regulatory and policy statements and an ad hoc cease-and-desist enforcement process, has an impermissible chilling effect on the First Amendment newsgathering rights of journalists, including News Media Amici,” the brief states.

Supporting the FAA’s position in asking that Geraghty’s order be reversed are two parties: the National Agricultural Aviation Association and former FAA officials John McGraw and Nicholas Sabatini. The FAA officials’ brief, filed by the Washington, D.C., firm McKenna, Long & Aldridge, argues that the 2012 FAA Modernization and Reform Act specifically defined both unmanned aircraft systems and model aircraft, and supported the agency’s authority to fine hobbyists who endanger safety. McGraw formerly oversaw unmanned aircraft issues as deputy director of the agency’s Flight Standards Service. As the FAA’s associate administrator for Aviation Safety, Sabatini signed a seminal February 2007 policy notice that prohibits flying unmanned aircraft systems for commercial purposes.