Wednesday, 19 November 2014

FAA vs Pirker: NTSB finds model aircraft are “aircraft”

The US National Transportation Safety Board (NTSB) has delivered its order in the appeal against the decisional order of the Administrative Law Judge, who terminated the FAA enforcement process against Raphael Pirker, an individual fined for violating FAA regulations during the flight of an Unmanned Aerial System (UAS). The NTSB reversed the decisional order and remanded the case for further findings.

As we had mentioned in a previous post, the FAA had imposed a fine of 10.000 USD on Raphael Pirker, on the basis that in October 2011 he was flying his remotely piloted aircraft, a Ritewing Zephyr, around the University of Virginia campus reckless and dangerous manner. Mr. Pirker filed a complaint against the FAA, claiming that he was operating a “model aircraft”, which was excluded from the FAA’s regulatory competency. The Administrative Law Judge Patrick Geraghy in his order issued on 6 March 2014, accepted the complaint and annulled the fine. The Judge based his order on an FAA’s 1981 advisory circular, which sets forth “safety standards” for “model aircraft” operations, and on a 2007 policy notice. The FAA appealed the order before the full five-member NTSB.

The NTSB found that model aircraft clearly fall under the definition of “aircraft” foreseen in 49 USC § 40102 (a)(6) (any contrivance invented, used, or designed to navigate, or fly in, the air) and 14 CFR §1.1 (a device that is used or intended to be used for flight in the air). The definitions are broadly formulated and do not distinguish between manned and unmanned aircraft. Neither the wording nor the legislative history of the definitions contain any indices that model aircraft were to be excluded from their scope. The same is valid for the scope of 14 CFR 91.13(a), which Mr Pirker allegedly violated (reckless operation of an aircraft in a manner that could cause damage or injury). As to Advisory Circular 91-57, it reflects the FAA’s clear intention to regulate model aircraft that pose a safety hazard. As a result, the FAA has the right to take enforcement action against violations of safety rules by model aircraft.

The FAA stated that it “looks forward to a factual determination by the Administrative Law Judge on the “careless or reckless” nature of the operation in question”.

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