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In a blow to drone operators, today the National Transportation Safety Board announced its opinion and order in the Pirker case finding FAA regulations apply to drones and other model aircraft and further declaring that the FAA may pursue enforcement actions against drone operators for reckless operation.
The case made its way to the NTSB after an administrative law jude dismissed the FAA's order requiring Mr. Pirker to pay a civil penalty of $10,000 for allegedly operating an unmanned aircraft in a careless or reckless manner. In the earlier decision, the judge compared Pirker's unmanned aircraft to a model aircraft, and found the FAA had not enacted an enforceable regulation regarding such aircraft. Today, the NTSB remanded the case to the administrative law judge to collect evidence and issue a finding concerning whether Pirker's operation of his unmanned aircraft over the campus of the University of Virginia in 2011 was careless or reckless.
The NTSB specifically rejected the administrative law judge's characterization of Mr. Pirker's aircraft, stating that the FAA's
"definitions are clear on their face. Even if we were to accept the law judge’s characterization of respondent’s aircraft, allegedly used at altitudes up to 1,500 feet AGL for commercial purposes, as a “model aircraft,” the definitions on their face do not exclude even a “model aircraft” from the meaning of “aircraft.” Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. An aircraft is “any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless."
In a subsequent paragraph, the NTSB wrote "In summary, the plain language of the statutory and regulatory definitions is clear: an “aircraft” is any device used for flight in the air."
The NTSB further determined that it was reasonable for the FAA to apply their regulations to unmanned aircraft operations. Specifically, the FAA has the authority to enforce the reckless operation rules against drone operators. The NTSB wrote:
the Administrator’s application of § 91.13(a) to respondent’s aircraft is reasonable. Section 91.13(a) states, “Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” As discussed above, neither the plain language of § 91.13(a) nor the definitions of “aircraft” applicable to regulations in 14 C.F.R. part 91 exclude unmanned aircraft. The Administrator’s interpretation of this text—that it applies to respondent’s operation of his Zephyr to prohibit careless or reckless operations—is reasonable, given the broad language of the section. In addition, the Administrator’s preamble text in its Notices of Proposed Rulemaking, published in the Federal Register under the Administrative Procedure Act for promulgation of § 91.13(a), do not contain any language indicating its application of § 91.13(a) to respondent’s aircraft is an unreasonable reading of the regulation’s text and purpose. The Board has affirmed the Administrator’s application of § 91.13(a) as an alleged independent violation in other cases in which, presumably, no other regulation would have explicitly prohibited the alleged conduct.
In summary, those drone operators who believe FAA regulations do not apply to them are now, as a matter of law, wrong Drone operators can be fined for reckless operation, and they are now on notice of that fact. In the words of the NTSB "Nothing in Advisory Circular 91-57, on its face, reflects any intent on the part of the FAA to exempt operators of unmanned or “model aircraft” from the prohibition on careless or reckless operation in § 91.13(a). At most, we discern in the advisory circular a recognition on the Administrator’s part that certain provisions of the FARs may not be logically applicable to model aircraft flown for recreational purposes. But nothing in the text of the document disclaims, implicitly or explicitly, the Administrator’s interest in regulating operations of model aircraft that pose a safety hazard. More importantly, the advisory circular puts the reasonable reader on notice of the Administrator’s intent to ensure the safe operation of model aircraft by appropriate means."
Brendan Schulman, Pirker's lawyer and an attorney at Kramer, Levin, Naftalis & Frankel says that he is reviewing the options for the next step in the Pirker case. "While we disagree with the decision, today’s NTSB ruling in the Pirker case is narrowly limited to whether unmanned aircraft systems are subject to an aviation safety regulation concerning reckless operation, an issue that the NTSB has said requires further factual investigation before a penalty is imposed." Schulman said, "The more significant question of whether the safe operation of drones for business purposes is prohibited by any law was not addressed in the decision, and is currently pending before the D.C. Circuit in other cases being handled by Kramer Levin."
