AIN Blog: Drone Case May Signal FAA Power Grab

 - January 7, 2014, 10:28 AM
RC Super Cub
Does the FAA need to regulate this foamy Super Cub? Photo by Matt Thurber

An FAA enforcement case against the operator of a UAS (unmanned aircraft system) may force a determination of whether the FAA has regulatory jurisdiction over model radio-control aircraft and whether the agency can prohibit the commercial operation of such aircraft. This is believed to be the first FAA enforcement action against the operator of a radio-controlled model aircraft.

UAS have been used for commercial purposes for a long time; many operators are using UAS equipped with cameras to shoot low-cost aerial photography, often for commercial purposes, including for real estate developers, movie-makers and property owners. Some UAS are far less expensive than helicopters and generally much quieter, too.

The FAA asserts that it has sole regulatory power in the U.S. national airspace system (NAS) over any type of aircraft. And the definition of aircraft is so broad that it covers any type of vehicle that can fly, including radio-control models. According to 14 CFR 1.1, “Aircraft means a device that is used or intended to be used for flight in the air.”

In this case, Raphael Pirker was assessed a civil penalty of $10,000 by the FAA last June, for violation of a single regulation, 91.13(a), which states that “no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” The FAA alleges that on Oct. 17, 2011, Pirker flew a Ritewing Zephyr radio-control model aircraft (or as the FAA put it, “an Unmanned Aircraft System (UAS),” in Charlottesville, Va. “for the purpose of supplying aerial video and photographs of the University of Virginia [UVA] campus to an advertising agency, and that he was compensated by that firm for the video and photographs.”

According to a motion to dismiss the FAA’s case filed by the law firm representing Pirker (and quoting the FAA complaint), Pirker flew his 4.5-pound styrofoam, camera-equipped model airplane “‘at extremely low altitudes over vehicles, buildings, people, streets and structures.’ More specifically, it alleges, inter alia, that he operated the model airplane ‘through a UVA tunnel containing moving vehicles,’ ‘below tree-top level over a tree-lined walkway,’ ‘within approximately 15 feet of a UVA statue,’ ‘within approximately 50 feet of railway tracks,’ ‘within approximately 25 feet of numerous UVA buildings,’ and ‘directly towards a two-story UVA building below rooftop level and made an abrupt climb in order to avoid hitting the building.’ There is no allegation that Mr. Pirker actually caused any property damage or injury, nor that any full-scale manned aircraft were in the vicinity.”

Pirker’s motion addresses six key assertions, summarized in the FAA’s response to the motion:

* There is no existing Federal Aviation Regulation governing the operation of model aircraft;

* the “public record” confirms that model aircraft operation is unregulated;

* the FAA has expressly declined to regulate “model aircraft;”

* the FAA lacks jurisdiction to regulate anything outside of the “navigable airspace;”

* the FAA faces “pressure” due to the public’s concern about drones; and

* the FAA’s policy statement concerning UAS operations is not binding or enforceable.

In its response, the FAA argues: “Each of Respondent’s assertions is either unfounded, irrelevant for purposes of a motion to dismiss the Complaint, or relies upon unsupported and contested questions of fact that require resolution at a hearing on the merits of the case.”

Space doesn’t permit analyzing each of the Pirker motion’s assertions, but it is interesting to see the FAA’s reasoning for its claim that it has full jurisdiction over the operation of any type of aircraft in the NAS and that it can prohibit commercial operation of any kind of UAS. As the Pirker motion states, “There is no existing Federal Aviation Regulation governing the operation of model aircraft.” The sole FAA guidance regarding model aircraft operations is Advisory Circular 91-57 (issued in 1981) and a policy statement issued in 2005: “AFS-400 UAS POLICY 05-01— Unmanned Aircraft Systems Operations in the U.S. National Airspace System—Interim Operational Approval Guidance.” Neither is regulatory by itself, although these types of document are used to clarify existing regulations (of which there is only one: 91.13). Interestingly, the policy specifically excludes model aircraft from its applicability: “Model Aircraft. Advisory Circular (AC) 91-57, Model Aircraft Operating Standards, published in 1981, applies to model aircraft. UA that comply with the guidance in AC 91-57 are considered model aircraft and are not evaluated by the UA [unmanned aircraft] criteria in this policy.”

The FAA points out that no matter what Pirker’s lawyers think about the applicability of AC 91-57 or the UAS policy, no one is allowed to operate any aircraft in a careless or reckless manner, according to 91.13(a).

The FAA has also publicly stated that UAS can’t be flown commercially. According to the Pirker motion, FAA spokesman Les Dorr said, “You can’t use an unmanned aircraft for commercial operations.” A film company, MI6 Films, according to the motion, “received a letter from R. Lance Nuckolls of the [FAA] Unmanned Aircraft Program Office that reads in pertinent part, ‘I would like to discuss the existing prohibition of commercial operations of unmanned aircraft systems (UAS) in the U.S. national airspace.’”

The motion goes on to explain the reasoning behind the claim that there are no regulations governing model aircraft operations in the NAS: “The interpretation seemingly proposed in the 2007 Notice (if it even is an interpretation) is completely unpersuasive. No distinction between commercial and recreational model aircraft use has been drawn in AC 91-57, or in the FARs, nor has it ever been articulated in the 90 years that model aircraft have been flown in the United States. No regulatory text is identified in support of this distinction. Moreover, it is beyond dispute that countless individuals and corporations have used model airplanes for ‘business’ purposes in a variety of contexts without even a hint that the FAA regulations apply, thus refuting any such interpretation.”

Of course, the FAA does not agree and argues that the motion’s claims are groundless and that “The FAA has broad authority to prescribe regulations and standards to establish ‘practices, methods and procedures the Administrator finds necessary for safety in air commerce and national security.’”

There is a reason I’m raising this topic: it seems that the FAA is essentially claiming regulatory jurisdiction over every type of aircraft, including tiny so-called Park Flyers that are so light they would bounce off if they hit something.

What this means is that if you are flying your little Park Flyer or foamy Super Cub, don’t be surprised if an FAA inspector decides to cite you for careless and reckless operation if, for example, you fly too close to a building or person. Or if you use your camera-equipped model helicopter to shoot photos for a real estate agent and you charge for your services, be prepared to face a hefty civil penalty if you get caught.

The UAS regulatory climate is still developing, and the FAA, as directed by Congress, is writing new regulations to cover UAS. But the problems highlighted by this case show that the FAA is preparing to make a power grab of epic proportions in the aerospace industry. We should carefully watch not only this case but also the proposed new UAS regulations.

I’m not suggesting that many types of UAS don’t need regulation and oversight; if I’m going to share airspace with UAS while flying a general aviation aircraft, I want to know they are as compliant with the applicable regulations as I must be. And I do want there to be some kind of rules prohibiting any kind of UAS—whether civil- or government-operated—from spying on me in my backyard. But to give the FAA blanket authority over all UAS, including model aircraft, just doesn’t fly.