An administrative law judge has considered whether the Federal Aviation Administration (“FAA”) had the power to fine an individual for operating an unmanned commercial aircraft, or drone, in U.S. airspace without authorization.
The FAA fined Raphael Pirker (“Operator”) $10,000 for using a drone to shoot a promotional video. The Operator appealed the fine, arguing that the FAA lacked the authority to impose such fines because there were no rules regulating the use of drones.
In 2012, Congress created legislation directing the FAA to create rules regulating the operation of drones by 2015, and the FAA plans to issue proposed regulations by November 2014.
A judge from the Office of Administrative Law Judges, National Transportation Safety Board (“ALJ”), reversed the FAA, agreeing with the Operator that the FAA did not have the power to impose a fine upon him at this time. The FAA rules define an “aircraft” as a “device intended to be used for flight in the air.” However, the FAA has historically not regulated “model” aircraft, and has issued separate guidance to operators of model aircraft for voluntary safety standards.
The ALJ determined that because the FAA has historically excluded model aircraft from its regulations, it could not now use its rules to impose a fine on the Operator for his use of a drone. Model aircraft is only subject to voluntary compliance by the FAA and the FAA does not regulate all flying devices as aircraft. For example, the FAA has created specific rules for Ultralights, a device used for flying in the air. Even though the Ultralight can fly, its rules are separate from those governing aircraft and the agency does not refer to these devices as aircraft but rather as an “Ultralight Vehicle”, demonstrating that the FAA does not treat all flying devices as aircraft.
The FAA has also issued policies for unmanned aircraft systems (“UAS”) and the FAA claimed that these policies gave it the authority to regulate drones. However, these policies were not directed to the general public but intended as internal guidance for FAA personnel. In addition, these policies did not go through the proper rulemaking process that would have given FAA regulatory authority over drones, such as providing notice of the proposed rules and receiving comments. Because the FAA did not have formal rules regulating the use of drones and UASs, the ALJ reversed the FAA’s fine imposed upon the Operator.
Editor’s Note: Update: The Federal Aviation Administration (“FAA”) appealed the ALJ’s decision to a five-member panel of the National Transportation Safety Board (“NTSB”). On November 18, 2014, the NTSB determined that the FAA’s statutory language defining aircraft was broad enough to include unmanned aircraft, including the type that the Operator flew on the University of Virginia campus, and issued an order reversing the ALJ’s decisional order and remanded the case for further proceedings. The ALJ must now conduct a full factual hearing and issue a finding as to whether the Operator’s operation was in violation of the FAA’s prohibition on the operation of an aircraft “in a careless or reckless manner so as to endanger the life or property of another.”
FAA v. Pirker, No. CP-217 (N.T.S.B. A.L.J. March 6, 2014), rev’d (N.T.S.B November 18, 2014). [Note: This opinion is not published in an official reporter and therefore should not be cited as authority. Please consult counsel before relying on this opinion].