by Russell A. Klingaman
On November 18, 2014, in a unanimous decision, the National Transportation Safety Board (NTSB) concluded that an unmanned aerial system (UAS) is an “aircraft” within the Federal Aviation Administration’s (FAA) jurisdiction. Huerta v. Pirker, NTSB Order No. EA-5730 (Nov. 18, 2014). In other words, NTSB concluded that all UAS operators are subject to the FAA regulations — including 14 C.F.R. § 91.13, which prohibits operations of aircraft in a careless or reckless manner.
The Pirker decision represents a significant victory for the FAA in its efforts to regulate UAS operations. If you are (1) an FAA certificate holder, and (2) a UAS operator (or intend to operate a UAS in the future), you should be aware of the Pirker decision and how the FAA may use it to suspend or revoke your certificate.
The Pirker decision firmly establishes the FAA’s legal authority to regulate both manned and unmanned aircraft operations. The decision empowers the FAA to pursue enforcement actions — including civil penalties, suspensions and/or revocations — against any and all UAS operators for violations of FAA regulations. The Pirker decision puts all UAS operators — both private and commercial — on notice that their aircraft and their flights are clearly under the FAA’s jurisdiction.
History of the Pirker Case – The ALJ Decision
The case began in June 2013, when the FAA commenced a civil penalty action against Raphael Pirker, a professional photographer, for operating his UAS in a careless or reckless manner in violation of 14 C.F.R. § 91.13. The FAA sought a penalty of $10,000. In its complaint, the FAA asserted a long list of maneuvers made by Pirker’s UAS deemed unlawful including:
• [O]perated the . . . aircraft at extremely low altitudes over vehicles, buildings, people, streets, and structures.
• [O]perated the . . . aircraft at altitudes of approximately 10 feet to approximately 400 feet over the University of Virginia [UVA] . . . .
• [O]perated the aircraft directly towards an individual standing on a UVA sidewalk causing the individual to take immediate evasive maneuvers so as to avoid being struck by your aircraft.
• [O]perated the aircraft through a UVA tunnel containing moving vehicles.
• [O]perated the aircraft under a crane.
• [O]perated the aircraft below tree top level over a tree lined walkway.
• [O]perated the aircraft within approximately 15 feet of a UVA statue.
• [O]perated the aircraft within approximately 50 feet of railway tracks.
• [O]perated the aircraft within approximately 50 feet of numerous individuals.
• [O]perated the aircraft within approximately 20 feet of a UVA active street containing numerous pedestrians and cars.
• [O]perated the aircraft within approximately 25 feet of numerous UVA buildings.
• [O]perated the aircraft on at least three occasions under an elevated pedestrian walkway and above an active street.
• [O]perated the aircraft directly towards a two story UVA building below rooftop level and made an abrupt climb in order to avoid hitting the building.
• [O]perated the aircraft within approximately 100 feet of an active heliport at UVA.
Pirker refused to pay the penalty, and requested a hearing before an NTSB Administrative Law Judge (ALJ). The case was assigned to Judge Patrick G. Geraghty, who dismissed the FAA’s complaint against Pirker. Judge Geraghty reasoned that the FAA could not penalize Pirker because his UAS, being a “model aircraft” under FAA policy, is not considered an “aircraft” governed by any federal statutes or FAA regulations. Judge Geraghty held that “model aircraft” — including the UAS operated by Pirker — are not governed by FAA regulations.
The FAA’s Appeal To The Full NTSB
The FAA appealed Judge Geraghty’s decision to the full NTSB. The appeal forced the board to decide whether a UAS is an “aircraft,” and whether UAS operations are subject to the FAA’s regulation prohibiting careless or reckless operations. 14 C.F.R. § 91.13(a).
The board concluded that the statutory and regulatory definitions of “aircraft” are broad enough to include UAS operations. See 14 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1. In so doing, NTSB rejected Pirker’s argument that the statutory/regulatory definitions of “aircraft” only apply to manned aircraft.
The board also determined that Congress’ original definition of “aircraft” demonstrated “prescience.” In fact, NTSB lauded the U.S. Congress for defining “aircraft” in the Federal Aviation Act of 1958 to include, “any airborne contrivance now known or hereafter invented, used, or designed for navigation or for flight in the air.” Federal Aviation Act of 1958, Pub.L. No. 85-726, § 101(5), 72 Stat. 731, 737 (1958). In the end, NTSB found no distinction between manned or unmanned aircraft in the statutory or regulatory definitions.
Pirker argued that the FAA’s policy for “model aircraft” applied to his UAS, and protected him from prosecution for an alleged violation of § 91.13. The board reasoned that the FAA’s separate policy for “model aircraft,” did not provide Pirker grounds to escape liability. The board explained that the FAA may exclude certain aircraft from its regulations, but further recognized that the FAA had not done so for UAS operations.
NTSB further held that § 91.13(a) — prohibiting careless or reckless operation of aircraft — applied to Pirker’s operation of his UAS. NTSB pointed out that neither the plain language of § 91.13(a), nor any other applicable definitions of “aircraft,” excluded unmanned aircraft from the scope of 91.13. NTSB specifically rejected Pirker’s argument that the FAA’s Advisory Circular dealing with “model aircraft” (AC-91-57) demonstrated the FAA’s intent to exclude UAS from its regulatory scheme.
The board also reaffirmed its prior rulings, which allow the FAA to use § 91.13(a) as an independent violation where no other FAA regulation explicitly prohibits or deals with the alleged misconduct.
Notably, NTSB refused to address whether Pirker’s actual operation (i.e., directing his UAS toward an individual standing on a sidewalk, “causing the individual to take immediate evasive maneuvers so as to avoid being struck”), was careless or reckless. The board remanded the case to the ALJ for such a determination. The board instructed the ALJ to “convene a full factual hearing to determine whether [Pirker] operated the aircraft in a careless or reckless manner. . . .” The case was subsequently settled out of court in January 2015, when Pirker agreed to pay a fine totaling $1,100.00. NTSB’s Pirker decision firmly establishes that all UAS operators — whether recreational or business — are governed by the FAA regulations and must abide by § 91.13(a).
What Does The Pirker Decision Mean For FAA Certificate Holders?
As an active instrument-rated private pilot, and an attorney who practices and teaches aviation law, I have been following UAS developments — both technological and legal — very closely. I know several people — some of them FAA certificate holders — who are owners and operators of Unmanned Aerial Systems. In fact, I was at a legal seminar earlier this year where an attorney-speaker was talking about his UAS. The equipment was sitting on the conference table in a hotel ballroom occupied by approximately 100 attendees. While listening to the presentation, I thought to myself: “What if the speaker decides to demonstrate his UAS by having it fly around the ballroom?” I also wondered whether or not the presenter was an FAA certificate holder, and whether any of the attendees worked for the FAA.
If the speaker did fly his UAS around the ballroom in the presence of an FAA attorney or inspector, such conduct could be deemed a careless operation of an aircraft in violation of § 91.13. If the speaker was a pilot, such conduct could lead to the suspension or revocation of his pilot certificate.
We are assuming FAA’s authority covers indoor UAS operations, but it is unclear at this time if the FAA will or will not try to exercise its jurisdiction over such operations. However, I am convinced that the FAA would be very satisfied with the opportunity to start an enforcement action against any FAA certificate holder for conduct similar to Pirker’s.
This discussion forces us to consider what type of UAS flying might qualify as “careless or reckless.” So far, my research has not resulted in a clear set of guidelines, but it should be recognized that many of the UAS commercial-use exceptions issued by the FAA prohibit UAS operators within 500 feet of “nonparticipants.” See, i.e., FAA Exemption No. 11062 issued to Astraeus Aerial, Regulatory Docket No. FAA-2014-0352, dated September 25, 2014. (Other guidance might be found in the Safety Code published by the Academy of Model Aeronautics, but most UAS operations will probably fail to qualify as “model aircraft” flights. See FAA Docket No. FAA-2014-0396, “Interpretation of the Special Rule for Model Aircraft.” See also FAA Notice, N8900, 292, “Aviation-Related Videos or Other Electronic Media on the Internet.”)
In conclusion, if you are an FAA certificate holder and the owner/operator of an unmanned aerial system, you should be careful to make sure that you do not operate your UAS in a way that could be deemed by the FAA to be in violation of § 91.13, or any similar FAA regulation.
EDITOR’S NOTE: Russell A. Klingaman is an active pilot, aircraft owner, and a partner in the law firm of Hinshaw & Culbertson LLP in Milwaukee, Wisconsin. He is a panel attorney for the AOPA legal services plan, and is currently serving as the president of the Lawyer-Pilots Bar Association. Additionally, Klingaman is a member of EAA, NBAA, WATA and many other aviation organizations. He also teaches aviation law at Marquette University and UW-Oshkosh.