In the ever shifting landscape of drone law, there has been another seismic shift. In a November 18, 2014 ruling, the NTSB held that the FAA does have the authority to enforce its regulations against certain model aircraft operations.
The Pirker Case
Pirker, who was taking pictures for compensation on the University of Virginia campus in October 2011, was fined $10,000 for careless and reckless operations of his remote controlled aircraft by the FAA. He challenged the fine and an administrative law judge (ALJ) issued an opinion on March 6, 2014. In the opinion, the ALJ ruled that the FAA did not have the authority to regulate Pirker’s “model aircraft.” The FAA appealed the decision, and the NTSB ruled that the FAA did have authority to regulate Pirker’s device as an aircraft.
The ALJ’s opinion was troubling in that he made a significant leap to claim Pirker’s device was a “model aircraft” and, therefore, excluded from regulations because of a 1981 Advisory Circular issued by the FAA regarding the safe operations of model aircraft. The NTSB, however, applied the unambiguous clear meaning of the definition of “aircraft.” Section 40102(a)(6) defines “aircraft” as “any contrivance invented, used, or designed to navigate, or fly in, the air.” The definition did not limit the contrivance to a “manned” contrivance. Moreover, the model aircraft Advisory Circular did not say that a model aircraft was not an aircraft. The Advisory Circular simply encouraged “voluntary compliance with safety standards for model aircraft operators.”
The NTSB notably states that the model aircraft Advisory Circular does not exclude model aircraft from 14 C.F.R. Sec. 91.13(a) “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” Therefore, regardless of whether you are operating a model aircraft, manned aircraft or drone, you must adhere to the 91.13(a).
The NTSB’s ruling has significant implications for domestic drone operations. Currently, there are countless commercial, off-the-shelf, drones that anyone can buy and operate. Many in the industry felt the initial Pirker decision opened the skies to anyone that wanted to fly a drone. The NTSB has clearly said that regardless of how you describe your device, if you are operating in the National Airspace, the FAA has the authority to enforce its regulations that apply to aircraft.
The NTSB’s decision does not shut down drone use; it simply closes down the open frontier. Operators can still use drones through certificate of authorizations (COAs), Section 333 petitions and experimental airworthiness certificates. Moreover, the small unmanned aircraft rule is expected to be published this December. Therefore, operations are still permitted and are still occurring. However, those wanting to use a drone for their business, need to be mindful that the FAA has enforcement authority.
By S. Allan Adelman of LeClairRyan