UAS: The Administrative Law Judge Got It Wrong!

The FAA took a major step forward in its efforts to reclaim its authority to regulate commercial operation of Unmanned Aircraft Systems (UAS) in the United States.

As readers of this blog are aware, the FAA has been increasingly aggressive in sending out cease and desist letters to UAS operators and issuing substantial fines.  The first of these fines went before an Administrative Law Judge (ALJ) in the FAA v. Pirker case and on March 6, 2014, the ALJ took the extraordinary step of invalidating any attempt by the FAA to regulate commercial UAS operation in the absence of a formal rulemaking.

This decision spawned immediate confusion, with many people assuming that it was now open season for all drone use in the United States.  The FAA, however, immediately appealed the ALJ, and has now set out its arguments as to why the ALJ was wrong to overturn the $10,000 fine it issued to Mr. Pirker.  The FAA’s brief sets out three main arguments.

First, the FAA claims that it has the authority to regulate the operation of all aircraft, and that the ALJ erred by defining aircraft as excluding “model aircraft.”  The FAA claims that as a matter of law, the ALJ failed to give proper deference to the FAA’s interpretation of its own regulations.

Second, the FAA argues that, while the ALJ summarily decided that Mr. Pirker’s UAS was a “model aircraft,” the ALJ did not give any definition of what constitutes a model aircraft or conduct any fact finding into what characteristics and capabilities separate a model aircraft from aircraft generally.  As a result, there is no basis for finding Mr. Pirker’s UAS was anything other than an aircraft that must be safely operated pursuant to Section 91.13.

Third, the FAA argues that while it passed voluntary guidelines for the operation of model aircraft in 1981, those guidelines do not permit a person to operate a UAS in a careless or reckless manner so as to endanger the persons or property of another.  Since the FAA’s fine specifically charged that Mr. Pirker’s conduct was inherently reckless or careless and placed persons or property in peril, it was wrong to dismiss the action.

The FAA is clearly right about one thing.  Simply placing the modifier “model” in front of “aircraft” tells us nothing about the capabilities, and potential hazards, of any given UAS. For example, just this week, a “videographer” operating a UAS at the scene of a major accident in Ohio was arrested and charged with interfering with efforts to land a medevac helicopter at the scene.  As the size and complexity of commercially available UAS’s expands, there will be a parallel rise in incidents involving amateur and semi-professional operators.

Clearly, we have reached a point where formal rulemaking addressing all of these issues is needed.  This is why Congress urged the FAA to engage in an expedited process when it passed the FAA Modernization Re-authorization and Reform Act of 2012.  The public interest is not served if the court plunges the country into a chaos of conflicting state regulations and ambiguities as to what is permissible and what is not.

(Originally posted April 16, 2014)

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