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How Does Pirker Decision Affect UAS Flight

May 22, 2014
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To fly or not to fly … That is the question. Or at least that’s the question for those in the United States who are engaged in developing their businesses with an unmanned aircraft system (UAS) component. The Federal Aviation Administration (FAA) has made it clear, it seemed, that nobody was going to fly a UAS legally unless it was a public agency that had obtained in advance a certificate of authorization (COA) or a private organization that was in possession of a special airworthiness certificate (SAC).

Many have tried to pursue UAS operation for their businesses by claiming to fall under the group of users covered by a voluntary FAA advisory for model aircraft. Model aircraft operators are encouraged in the interest of safety to comply with “safety standards.”  But the FAA has been emphatic that any aircraft used for non-hobbyist purposes is subject to their more stringent regulations.

Many farsighted individuals and businesses in the geospatial industry see a wide variety of UAS applications that would improve the products or that can be delivered to clients, or timeliness of the delivery. There are applications that may be impossible or close to impossible to achieve without UAS. Others would be enhanced because safer or faster or more frequent data updates are possible.

The availability of UAS is not hindered in the United States in spite of the FAA’s regulations. There are a few notorious cases where the FAA has publicly issued cease-and-desist orders to people and organizations conducting UAS flights for journalism, agriculture, mapping and other commercial activities. Most interested people are probably aware of many more fliers and flights being conducted that aren’t known to the FAA, or which the FAA is choosing to ignore or overlook.

In this environment, the recent case of Huerta v. Pirker has attracted a lot of attention. People are looking for answers, and they are hoping that there are some in the decision.

Background

In October 2011, Raphael Pirker operated a ‘powered glider’ constructed primarily of foam, over the campus of the University of Virginia for the purpose of obtaining aerial photography of the campus in a paid assignment.  Described as an UAS (or drone) rebel, the Swiss-born Pirker has specialized in sensational flights with fixed and rotary wing aircraft. There are lots of Team Black Sheep (his organization) videos that one can find on the web.

The FAA, in 2013, levied a $10,000 fine on Pirker, claiming he had operated an UAS for commercial purposes. This is an activity that the FAA says is not permitted under the current regulations for operating flying objects in U.S. airspace. Pirker shot back that the FAA did not have the authority, under its current Congressional mandate, and within the reams of existing FAA regulations to limit his activity, and thus the fine was without basis. This meant that the case was assigned to an administrative law judge (ALJ) to read the briefs of the FAA and Pirker and make a decision.

In its brief, the FAA alleged that Pirker conducted the flight as “pilot-in-command” of a UAS for compensation, and thus commercial purposes. It also alleged that he had operated the UAS in an unsafe manner (for example, in a tunnel with vehicles operating in it, and at altitudes up to 1,500 ft. above ground level, among a long list of infractions).  In response, Pirker moved to dismiss the fine because the FAA had no regulatory authority over the operation of “model aircraft” operations.

That decision issued March 6, 2014, by Patrick G. Geraghty, granted Pirker’s motion and set aside the fine. The judge’s reasoning included (though was not limited to):

(a)      The aircraft Pirker flew is more likely a model aircraft, and by its own advisory circulars, the FAA excludes model aircraft from the more generic term of aircraft. Thus many of the allegations about improper and unsafe operation of the aircraft that the FAA made in its complaint don’t apply.

(b)     Geraghty further noted that the FAA doesn’t actually define or even talk about UAS in any of its regulatory documents. All mention of UAS is only in advisories, primarily written for internal FAA guidance, and as the documents themselves state, not intended to be regulatory. Thus his decision reflects his observation that the FAA can’t take an action against an operator of a type of vehicle that the FAA hasn’t even officially recognized.

(c)      The judge also emphasized that had there been rules or regulations in place (that required mandatory compliance) regarding model aircraft or UAS or where UAS were defined as “aircraft,” then the FAA didn’t follow its required course (as required in the U.S. Code) of issuing a notice of proposed rulemaking (NPRM), soliciting public comment for 30 days, and then issuing the proper rule or regulation.

When the FAA received the decision it immediately filed notice to appeal it to the National Transportation Safety Board (NTSB), the next appropriate level of administrative appeal. If either party is dissatisfied with the NTSB’s ruling, it can then be taken to either a U.S. District Court or the U.S. Court of Appeals.

Comments on the Decision

Proponents of using UAS have seen the administrative law judge’s decision as permission to fly without any need for FAA oversight. However this is a simplification. First, the appeals process has not been exhausted. A close reading of the decision will show those in the “know” many places to legitimately criticize the judge’s decision. That doesn’t mean that the FAA will prevail, but the issues are not black and white, and views on them are thus subject to change.  The stamina of the parties to follow through in the avenues of appeal available to them is not a trivial factor as well.

Those who wish to fly UAS in the U.S. for commercial purposes are still at risk of facing disciplinary action. They can appeal those actions just as Pirker did. But that means being prepared to find a lawyer willing to serve as “guardian angel,” or committing resources and time to a defensive or offensive legal strategy to get out from underneath an official government sanction. The sanction, if applied to your business, must be clearly understood. It could possibly jeopardize the business (at least from an insurability point of view…but there are other points of view as well).

Much of this is occurring because the FAA hasn’t thought through its management of model aircraft fliers (a strong lobby which clearly has the ear of Congress) as well as foot-dragging in the process of legally acknowledging and regulating the existence and operation of UAS and recognizing how use of airspace is changing with the advent of UAS, long before the term UAS was even coined. Many agencies around the world charged with managing airspace are years ahead, maybe even a decade or more, ahead of where the FAA is. The foot dragging is well recognized by those who know the FAA. Many will state that this is common FAA mode. There probably are many reasons for this, some of them even good.

Timelines and mandates set by Congress seem to be translated by this agency into a “when we’ll get around to it” approach. Transparency is mostly missing. The FAA could have instead immediately reported to Congress and the public that the timelines set by Congress are technically or humanly infeasible, but such conversations don’t appear to be deemed necessary. That approach breeds a variety responses by the public including contempt, derision and lack of respect for an agency that I would consider an important element in the introduction and management of unmanned airborne systems in the national airspace.

Until the courts hold as a final conclusion that the FAA has no authority to regulate UAS operation, or Congress decides that a new agency has that responsibility, we must continue to look to the FAA for the rules on how to operate UAS. Not doing so can solve a lot of headaches in navigating a current bureaucratic process, but it has the appearance of taking the law into your own hands. Furthermore, those who professionally operate aircraft, whether manned, model or UAS will mostly agree, undisciplined use of the airspace, with no “rules of the road” that all agree to will lead to chaos at best and tragedy at worst. 

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