Drone Update – The NTSB Rules on the Pirker Case

November 2014

On November 18th, the National Transportation Safety Board (the “NTSB”) issued the much-anticipated opinion and order to the FAA’s appeal of the administrative law judge’s decisional order in the Raphael Pirker[i] case (the “Appeal Order”). In the Appeal Order, the NTSB explicitly stated that Mr. Pirker’s Ritewing Zephyr, a 5 pound Styrofoam remotely controlled UAS, was an “aircraft” under 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1 and therefore was subject to FAA regulations.  (Pirker was fined $10,000.00 by the FAA for flying a drone for a commercial purpose over the University of Virginia.)

Now, it has been determined that things such as “unmanned free balloons, kites, rockets, and moored balloons that rise or travel above the surface of the earth,”[ii] including UAS are “aircraft.” The NTSB stated that “… the plain language of the statutory and regulatory definitions is clear: an ‘aircraft’ is any device used for flight in the air,” and continued, “[t]his definition includes any aircraft, manned or unmanned, large or small.”

Where does this now leave a person desiring to utilize UAS commercially?
According to the Appeal Order, it is clear that FAA has the authority to regulate any UAS as an aircraft. Therefore, it is also clear that the FAA’s current blanket prohibition on commercial UAS use is enforceable in court.

However, if you desire to use a UAS commercially, don’t be discouraged. It is important to remember that Congress mandated the FAA to enact regulations integrating commercial UAS use into the national airspace system by September 30, 2015. While it is expected that the FAA will not meet Congress’s deadline, the FAA has recently started to permit limited commercial UAS activity pursuant to properly submitted written exemption requests on a case-by-case basis. In addition, businesses can also apply to the FAA for approval to conduct experimental and research activities with UAS to perfect their eventual commercial activities.

If you or your business is interested in operating UAS commercially or getting a head start on perfecting UAS activities for when the FAA does enact the regulations for commercial UAS use, please contact FMJ for a consultation concerning your proposed activity and an analysis on whether you may qualify to benefit from an experimental certificate or a written exemption from the commercial UAS prohibition.

[i] Michael P. Huerta, Administrator, Federal Aviation Administration v. Raphael Pirker, National Transportation Safety Board Docket CP-217, March 6, 2014 (“Raphael Pirker”).

[ii] Michael P. Huerta, Administrator, Federal Aviation Administration v. Raphael Pirker, NTSB Order No. EA-5730, 10 (November 18, 2014) (“Appeal Order”).

Garrett Caffee is an attorney at FMJ in the Unmanned Aircraft Systems (UAS) and Aviation practice groups where he concentrates in the areas of commercial and private aviation, purchase, sale, finance and leasing, as well as cross-border transactions.