You and your staff are the world standard for aviation accident investigation. You have one of the best jobs in the world. You hold Presidential appointments. Pursuant to your enabling legislation, you investigate, analyze and recommend. You have no power to regulate or enforce. Moreover, you have the power to criticize when your recommendations are not followed.
Your constituency is the American public, the media and the Congress. In most respects, since you don’t regulate or enforce, you’re pretty much immune from criticism. What a great job!
The reputation the NTSB has is well deserved and each of you, including former Chairman Hersman, have further enhanced that reputation.
Given the foregoing, there is no conceivable way you can uphold the decision of the Administrative Law Judge in Pirker when he determined the FAA had no authority to levy a civil penalty when Mr. Pirker improperly flew a UAS for commercial purposes in civil airspace.
Note: For the purpose of full disclosure, this law firm filed an amicus brief with the NTSB on behalf of two former FAA safety officials, in the Pirker matter.
To uphold Judge Geraghty will be to tell the FAA that they currently have no power to regulate UASs in civil airspace. Given some of the reaction to Judge Geraghty’s decision, including at least one person indicating he would tell the FAA to “piss off” if he got a cease and desist letter, if you affirm him the navigable airspace could well become the “wild west,” as lots and lots of people decide to use UASs to inspect property, buildings, fields, powerlines and pipelines or shoot TV commercials or movies. After all, the technology is here now.
If this occurs, it is simply a matter of time before an accident happens and a person or people are hurt or die. Maybe, a midair collision with an aircraft, or a UAS hits a car or truck and causes an accident, or a school bus driver is startled and runs off the road.
Imagine what happens then! The NTSB, which is purveyor of safety recommendations and the world standard for accident investigation, will have been responsible for undoing the FAA’s enforcement of regulations meant to prevent just such an accident.
The simple truth is that the decision you have before you has everything to do with aviation safety and insuring that nothing catastrophic happens while a regulatory structure is put in place. Forget about law, process, procedure and precedent. Step back and realize what it means for an accident to happen because you decided Judge Geraghty was right and the FAA can’t regulate UASs as they do currently. The consequences, on many levels, are unacceptable.
Now, don’t get me wrong, there’s ample legal authority to reverse Judge Geraghty. Moreover, there’s ample reason for you to criticize the FAA and strongly encourage them to move more quickly. That being said, the decision you have to make can only come out one way. However, you get there, Judge Geraghty must be reversed and the FAA must be permitted to regulate now. The consequences of saying they can’t are not something that you or those persons who may be hurt or die can live with.
Thank you for reading my letter.
(Originally posted May 23, 2014)