Ruling Confirms FAA Enforcement Authority Over Reckless Unmanned Aircraft Operations

By Tom DeCesar, Ed Fishman, Jim Insco, and Marty Stern

The National Transportation Safety Board (NTSB) ruled earlier this week that small, unmanned aircraft flights are subject to Federal Aviation Administration (FAA) rules prohibiting careless and reckless aircraft operation, potentially subjecting small, unmanned aircraft operators to civil enforcement penalties for such operations.  The FAA appealed the closely watched case to the full NTSB after an administrative law judge (ALJ) reached the opposite conclusion in an earlier proceeding.

The relatively narrow ruling has potentially broad implications for companies across a range of industries, including the telecom, media, and technology sector, which have been considering issues surrounding commercial use of unmanned aircraft in advance of the FAA adopting rules on authorization and regulation of the commercial use of small unmanned aircraft systems (UASs).  The FAA is expected to launch its long-delayed small UAS rulemaking within the upcoming months.

The case, Huerta v. Pirker, arose when the FAA issued a civil penalty assessment against Pirker, a commercial videographer, who used a remote-controlled aircraft to film on the University of Virginia Medical Center campus.  Pirker allegedly flew the small, fixed-wing powered glider, which was similar to model aircraft used by hobbyists, in a reckless and careless manner near pedestrians, buildings, and a heliport.  The FAA sought to impose a civil penalty under FAA rules that prohibit the use of aircraft “in a careless or reckless manner so as to endanger the life or property of another.”  Pirker challenged the FAA’s authority to impose the penalty.  The NTSB ALJ who heard the case assumed that Pirker was using essentially what was a model aircraft and drew a distinction between such model aircraft and the term “aircraft” defined in the FAA’s rules and subject its safety rules.

The NTSB reversed the ALJ and found that even small model aircraft and other small UASs are “aircraft” for purposes of the prohibition on unsafe operations.  The NTSB explained that its holding was supported by the plain language of the relevant statutes and regulations, concluding that the term “aircraft” includes any device used for flight in the air—regardless of the aircraft’s purpose, type, or ability to transport passengers.  The NTSB also found nothing in the FAA’s prior model aircraft guidance suggesting that its authority over safe operations did not extend to these devices.  The NTSB remanded the case to the ALJ for a determination of whether Pirker, in fact, operated his aircraft in a careless or reckless manner that endangered people or property.

The NTSB’s decision was praised by the FAA and bolsters the FAA’s position that it has the authority to regulate small unmanned aircraft used for commercial purposes, whether model aircraft or otherwise, at least as to their safe operation.  While the FAA is currently in the process of launching a rulemaking on the commercial use of small unmanned aircraft that will likely provide clearer rules for the authorization and regulation of these devices, a final rule is not expected until 2016 or later.  The NTSB’s ruling, which may be appealed by Pirker, will be important in the interim before a final rule is adopted, making clear that, at a minimum, the FAA may proceed against unsafe small UAS operations.  For now, it is likely that the FAA will continue to issue cease and desist orders to those performing commercial UAS operations without FAA authorization.  Until a final rule is promulgated, Section 333 exemptions, the first of which was granted in late September, remain the clearest path in the United States for the commercial operation of small unmanned aircraft in a way that complies with FAA