NTSB Overturns Administrative Law Judge Decision And Holds That Federal Aviation Regulation 91.13 (Careless Or Reckless Operation) Applies To Unmanned Aircraft Systems

The Federal Aviation Association (FAA) is feverishly working on a Notice of Proposed Rulemaking (NPRM) governing commercial use of unmanned aircraft systems (UAS), which it intends to have ready by the end of 2014. Details about the NPRM have begun to spread, including the FAA's apparent intention to require a private pilot certificate for commercial UAS pilots. Those in the industry also fear that the NPRM will cover even those UAS that weigh less than 55 pounds, including tiny handheld models that potentially could have commercial applications.

A recent Wall Street Journal article opined that the NPRM will receive so much backlash that it could take years to enact. The impact of any potential delay was lessened on November 17, 2014, however, when the National Transportation Safety Board reversed the administrative law judge's decision in Huerta v. Pirker, and held that 14 C.F.R. §91.13 applies to unmanned aircraft. The NTSB remanded the matter to the law judge for a determination as to whether Pirker's operation of the Zephyr on October 17, 2011 was reckless under §91.13, which states that "*n+o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another."

Background

On June 27, 2013, the Administrator of the FAA issued an assessment of $10,000 against Raphael Pirker for violating 14 C.F.R. §91.13 by operating an unmanned aircraft—a Ritewing Zephyr—in a reckless manner around the University of Virginia campus in Charlottesville, Virginia, on October 17, 2011. Pirker was taking aerial photographs and video of the UVA campus and medical center for compensation.

On March 6, 2014, Administrative Law Judge Patrick G. Geraghty vacated the FAA's order of assessment, finding that §91.13 does not apply to Pirker's unmanned aircraft because the device was not an "aircraft" for purposes of the regulation. The law judge concluded that the Zephyr was a "model aircraft" to which §91.13 did not apply, basing his conclusion on a 1981 FAA Advisory Circular setting forth safety standards for model aircraft and a 2007 policy notice that he claimed excluded model aircraft from the regulatory and statutory definitions of the term aircraft.

The Administrator appealed the law judge's decision, arguing that the law judge erred in determining that (1) respondent's Zephyr was not an aircraft under 49 U.S.C. §40102(a)(6) and 14 C.F.R. §1.1, and (2) respondent's aircraft was not subject to 14 C.F.R. §91.13.

The...