Danielle Furneaux–On October 17th, 2011, commercial drone pilot Raphael Pirker raised a previously unimagined issue: whether an unmanned aircraft system, classified as a model aircraft, is regulated by FAA-manned aircraft guidelines where such flight is for commercial purposes. After being fined $10,000 for reckless flying by the Federal Aviation Administration, he took his novel case to court.
Pirker used his drone to film a promotional video advertisement of the University of Virginia Medical Center for Lewis Communications. During this flight, labeled reckless by the FAA, Pirker piloted a RiteWing Zephyr II aircraft. It is 56-inch drone weighing less than five pounds, carried by foam wings, and costing $130. The FAA alleges that Pirker flew within fifty feet of people on the ground, twenty feet of a busy street, and one hundred feet of an active heliport.
The civilian uses for and capabilities of drones are rapidly changing as technology evolves. Current FAA regulations do not specifically bar the commercial use of drones in the U.S. However, in 2007, the FAA released a policy statement banning the commercial use of drones. The policy statement is not based on any new regulations or codifications and has no real authority, but the FAA attempted to use it to assert authority based on its pre-existing regulations.
The policy statement sought to clarify FAA regulations by differentiating between drones normally regulated by Model Aircraft Guidelines and those fitting into the Model Aircraft category, but used for commercial purposes. The traditional Model Aircraft Guidelines only require that this category of unmanned aircraft systems be operated below 400 feet, away from populated areas, and at least 3 miles away from any airport. Model aircrafts fall within the category of unmanned aircraft systems, but unmanned aircraft systems also include two additional categories of public and civil unmanned aircraft systems, which have stricter regulations. But, when those same model aircrafts are used for commercial purposes, the FAA policy statement set forth requirements to include a certified aircraft, a licensed pilot, and operating approval, just as from any commercial operation.
Even though Pirker’s flight did not comply with the regulations set forth by the FAA in its 2007 policy statement, the only charge against Pirker was for reckless operation of an aircraft. The FAA-imposed fine was not based on his lack of certification, pilot’s license, or operating approval. Pirker contested this penalty on the basis that what he piloted for commercial purposes was not an “aircraft,” but rather a model aircraft, and therefore implicated no Federal Aviation Regulations.
Pirker won on appeal before National Transportation Security Board Administrative Law Judge Patrick Geraghty. The judge dismissed the fine, finding that no FAA rule applied to his remote-controlled flight, as rules on manned aircraft do not apply to model aircraft. This holding, in effect, renders ineffective the FAA’s 2007 policy release, which attempted to regulate model aircraft under the same regulations as any commercial flight.
The unmanned aircraft systems community considers this a big win for their side. But, the FAA has filed an appeal to the full National Transportation Safety Board, which temporarily stays Judge Geraghty’s decision. In its appellate brief, the FAA asserts two issues. First, that the judge erred by refusing to classify Pirker’s small drone as an “aircraft,” meaning that it was not categorized as an aircraft under the Federal Aviation Regulations. And, second, that the judge erred by holding the drone and its operation as not subject to the Federal Aviation Regulations.
Separate from Pirker’s case, Congress has put the FAA on a timetable to determine the status of unmanned aircraft systems. When Congress reauthorized and modernized the FAA in 2012, part of the legislation was a September 30, 2015, deadline to create a regulatory system for commercial flights of unmanned aircraft systems. Judge Geraghty’s decision is in direct opposition with the direction in which the FAA is moving. Pending the FAA appeal of Pirker’s case, Judge Geraghty’s opinion could heavily alter and shape the regulations due next year.
