Pirker UAS decision is remanded by NTSB; FAA has jurisdiction to Regulate these Aircraft

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On March 6, 2014 NTSB Administrative Law Judge Patrick G. Geraghty became a hero to the global UAS/UAV/RPAS/drone community. For on that day, he issued FAA v. Pirker which found that the Administrator could not regulate UAS aircraft, because a 1981 Advisory Circular “relegated model aircraft to voluntary compliance”. His opinion was quoted on the internet by myriad experts on the subject of regulation of this emerging form of flight. They opined that it was THE definitive statement that the FAA has no basis to regulate any flight of these aircraft.

On November 18, 2014 the full NTSB Board reversed that legal interpretation and remanded the case to determine whether the pilot, Mr. Pirker, flew his Ritewing Zephyr in “a careless and reckless” manner. The blogosphere must be exploding!!!

There is no doubt that the FAA is taking its time for issuing the UAS regulations. Unfortunately its normal rulemaking processes are slow for good and bad reasons. The potential for commercial and recreational uses of these aircraft are both exciting and infinite. This caution by the FAA is the result of the wide range of potential business uses, the negative consequences of one of these vehicles’ incursion into controlled airspace and the quickly evolving technologies which will improve safety (“sense and avoid”) and increase the volume of their operations.

The NTSB opinion (Order EA 57-30, docket CP-217 ) immediately addressed the underlying legal issue, the FAA’s jurisdiction to regulate this flight. It reviewed the statutory definition of “aircraft”, 49 USC § 40102(a) (6) and found that a UAS meets the test of “any contrivance invented, used, or designed to navigate, or fly in, the air.” The Board found under a “plain language” test that the definition was met and determined that the ALJ’s characterization of the Ritewing Zephyr as a “model aircraft” and not an “aircraft” failed. The remaining 12 pages dismiss the arguments based on the applicability of 14 CFR §91.13(a), the 1981 Advisory Circular, and subsequent FAA notices.

Finally, it is notable that all four Members concurred in the opinion and order.

Be sure to include ALG Geraghty’s subsequent determination on your follow-up list. He will then decide whether Mr. Pirker violated §91.13 when he

· “operated the unmanned aircraft at altitudes ranging from the ‘extremely low’—10 feet above ground level (AGL)—up to 1,500 feet AGL.

· operated the aircraft, inter alia , “directly towards an individual standing on a . . . sidewalk causing the individual to take immediate evasive maneuvers so as to avoid being struck by [the] aircraft”;

o “through a . . . tunnel containing moving vehicles”; “under a crane”;

o “below tree top level over a tree lined walkway”;

o “under an elevated pedestrian walkway”; and

o “within approximately 100 feet of an active heliport.”

· “allegedly conducted these maneuvers as part of flights for compensation, as the aircraft was equipped with a camera and respondent was “being paid by [a third party] to supply aerial

photographs and video of the UVA campus and medical center.”

Inclusion of UAS within the NAS and under the FAA’s rules might require the FAA to rethink/reconsider some of its regulatory premises. An ALJ’s interpretation of the basic FAA jurisdictional bases would have created havoc if it was upheld. If the Pirker rule had prevailed, there chaos, which would have resulted, would lead to accidents or incidents which would have harmed the development of this promising UAS technology.

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