Unpacking Pirker: Setback or Sideshow?

Written by Joshua Turner and Katy Ross
on December 09, 2014 No Comments
Categories : Policy & Regulations

Six months ago, an administrative law judge hearing a challenge to the Federal Aviation Administration's (FAA) high-profile enforcement action against Raphael Pirker dropped a bomb – he found that the FAA's rules did not apply to unmanned aerial systems (UAS), more commonly known as drones.

The decision captured the public imagination, and a wide variety of media outlets reported that it would clear the way for unregulated commercial drone use. More recently, the U.S. National Transportation Safety Board (NTSB) reversed the administrative law judge’s decision, holding definitively that the FAA’s definition of “aircraft” does include UAS, and that as a result, the FAA’s rules governing aircraft can also be enforced against drones.

The media coverage of this more recent decision has been more limited, but no less stark – many outlets have suggested that the NTSB’s determination is a major setback for the drone industry.

The reality is more complex. There is no question that the NTSB ruling will have a negative impact on commercial drone use in the short term. But in the longer term, as the FAA develops new rules pursuant to clear Congressional authorization, its effects are likely to be minimal. Indeed, by keeping the FAA’s existing regulations in place, the NTSB may have avoided a series of unintended consequences with unpredictable negative effects.

The FAA originally brought an enforcement action, including a $10,000 fine, against Pirker for flying a remotely piloted UAS over the campus of the University of Virginia in June 2013. The FAA charged Pirker with violating federal aviation regulations (14 C.F.R. § 91.13(a)), which prohibit operating an aircraft in a careless or reckless manner.

Pirker moved to dismiss the action, contesting – among other things – the FAA’s premise that UAS are “aircraft” as defined in the FAA’s rules. Pirker also raised a number of broader arguments with far-reaching implications, including that the FAA lacked the authority to regulate UAS at all.

The administrative law judge assigned to the case agreed with Pirker, holding that Pirker’s aircraft was a “model aircraft” and that, therefore, it was excluded from the definition of “aircraft” subject to regulation under FAA rules. Having dismissed the case on relatively narrow grounds, the judge did not express an opinion on Pirker’s other theories.

In November of this year, the NTSB reversed that ruling. The NTSB held, first, that unmanned aircraft meet the plain language definition of “aircraft” contained in the relevant statute and regulation. The NTSB noted that, “an aircraft is ‘any’ ‘device’ that is ‘used for flight.’ We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless.” Second, the NTSB held that because an unmanned aircraft is encompassed in the definition of “aircraft,” FAA regulations pertaining to aircraft – including Section 91.13(a) – apply to unmanned aircraft.

The NTSB’s ruling should not come as a surprise. As a practical matter, accepting the administrative law judge’s decision would arguably have removed all unmanned aircraft from the definition of “aircraft,” including large UAS operating at high altitudes – UAS that would pose an obvious danger to other, manned aircraft. Indeed, the most extreme version of the argument advanced by Pirker was that the FAA did not even have statutory authority to include UAS in the definition of “aircraft.” It thus seemed unlikely that the NTSB would uphold the decision and allow a potential aerial free-for-all.

Expected or not, the decision is a disappointment for those who hoped to be able to begin commercial operations with a minimum of regulatory red tape. But when placed into context, the NTSB’s decision is not the death knell for the commercial drone industry that some media outlets have made it out to be.

First, Pirker was always likely to be a sideshow. In the short term, the Pirker decision can be seen as a setback to the growth of commercial operations in that it places UAS squarely under the FAA’s jurisdiction over aircraft.

In the longer term, though, even if the NTSB had upheld the administrative law judge’s dismissal, doing so would have been unlikely to give more than a temporary boost to the industry. The FAA has long-standing plans to initiate a rulemaking for small UAS before the end of 2014, pursuant to a statutory directive passed by Congress in 2012. Had the NTSB agreed with Pirker and the administrative law judge about the limited scope of the FAA’s authority, the FAA would have had the opportunity to address those arguments in its rulemaking process.

Indeed, because the 2012 statute clearly does give the FAA authority to regulate UAS, adoption of new rules would likely negate even Pirker’s broad statutory arguments (which were not endorsed by the administrative law judge). Thus, a decision in Pirker’s favor was likely to be a temporary victory under any circumstances.

Second, despite the short-term consequences, the NTSB decision keeping existing rules in place may (ironically) prove to be a net positive to the overall development of the industry. Limiting the FAA’s jurisdiction in the manner proposed by Pirker could have come at a significant cost to public safety, particularly if UAS operators pushed the envelope of what was permissible under the judge’s decision. This may have led to a backlash, either in terms of public relations or in terms of even more restrictive regulations and legislation. And because the federal regulatory reprieve would have been temporary, it may have caused more pro737_resizedturnerjosh-53465-4806.jpgblems than it solved by first allowing rapid growth and then disrupting people’s expectations and business plans when the eventual FAA rules did come out.

Further, the NTSB ruling avoids another set of unintended consequences. If the NTSB had accepted Pirker’s arguments, it could have resulted in a vacuum of regulation. One issue that many commentators reviewing the original Pirker decision overlooked was that in the absence of federal law and the preemption that often comes with it, state and local governments are free to take matters into their own hands. Some state and local jurisdictions have already acted to ban or regulate drone operations, and a decision clipping FAA authority would certainly have brought additional urgency to these efforts. A patchwork of conflicting state and local regulations could actually be more detrimental to commercial operations than e737_rosskatym-48817-5049.jpgven stringent federal regulations.

In the end, then, the NTSB’s decision in the Pirker case is not the roadblock to the deployment of commercial UAS that some have called it. Far more important is the outcome of the FAA’s upcoming rulemaking, which will likely set the parameters for small UAS operations for years to come – and would have done so whichever way the NTSB ruled.

Turner is a partner at Wiley Rein LLP, where his practice involves federal litigation, administrative enforcement and federal preemption. He can be reached at (202) 719-4807 or jturner@wileyrein.com. Ross is an associate at Wiley Rein LLP, where she focuses on telecommunications and unmanned aircraft systems legal, regulatory and policy issues. She can be reached at (202) 719-7410 or kmross@wileyrein.com.

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