Plane-ly Spoken has long predicted that the Administrative Law Judge’s Opinion dismissing the FAA’s civil penalty action against Raphael Pirker would be reversed on appeal. Today, that prediction came true. Bad news for Mr. Pirker! Good news for air safety!
For those of you new to Plane-ly Spoken, the FAA had fined Mr. Pirker $10,000 for carelessly and recklessly flying his UAS while filming a promotional video for a university. The ALJ dismissed the fine, ruling that there were no enforceable regulations governing either UASs or model aircraft, and as a result, the FAA had no legal authority to pursue the matter. Needless to say, this ruling threw the FAA’s efforts to regulate commercial UAS operations into complete disarray. The FAA promptly appealed the decision to the full National Transportation Safety Board.
In its decision reversing the ALJ, the NTSB looked back to the original language of the Federal Aviation Act of 1958, and found that the definition of the word “aircraft” is intentionally broad, encompassing all devices used for flight, including UAS and model aircraft. To the extent the FAA has chosen in the past to refrain from bringing charges against operators of model aircraft, the NTSB found that this was a policy choice for the Administrator, and did not represent a change to the broad definition of “aircraft.” As a result, the FAA was free to alter that policy choice if the safety of the national airspace required it to do so.
Once the NTSB ruled that UASs and “model aircraft” were, in fact, aircraft, the Board turned to whether 14 CFR 91.13, which prohibits the careless or reckless operation of an aircraft, applied to Mr. Pirker’s flight. The Board found that the FAA’s extension of this section to UASs and model aircraft was reasonable, providing the legal basis for the $10,000 fine.
The next step is, upon remand to the ALJ, a full factual hearing to determine whether Mr. Pirker’s operation of his aircraft was “in a careless and reckless manner so as to endanger the life or property of another,” contrary to § 91.13(a).
While there are many who were hoping that the NTSB would affirm the ALJ’s decision and open the skies to commercial UAS with the stroke of a pen, that result would not have been in anyone’s long term interests. Once the inevitable accident had occurred, the Congressional finger pointing and second guessing would have caused the rulemaking process to grind to a halt, and, no doubt, all UASs would have been grounded until the situation could be dealt with.
With the Pirker matter reversed, hopefully everyone can turn their attention back to the real issue, namely the issuance of the Notice of Proposed Rulemaking for small UAS before the end of the year.
(Originally posted November 18, 2014)