Can I Fly or Can’t I Fly? Drones in the Wake of the NTSB’s Pirker Opinion

by LeClairRyan

One of the fastest-evolving areas of aviation is the use of drones. Although “drone” is the popular term, it is not used in the industry, which initially used “unmanned aerial vehicle,” or UAV.

The Federal Aviation Administration later coined the term “unmanned aircraft system,” or UAS, to better describe the complete system (aircraft and ground station) necessary to operate a UAS. More recently, “remotely piloted vehicle,” or RPV, has been used to better clarify that the aircraft is not unmanned, but rather it is remotely controlled. All of these terms are preferred in the industry over “drone,” a word that suggests the mindless operation of an aircraft.

Whether it is called a drone, a UAS or an RPV, the debate over whether these devices can fly is heating up.

Although UAS technology is developing at an extraordinary pace, the actual use of UAS has been fairly limited.

The Department of Defense has been by far the largest user of UAS; thus, a lot of the focus on technology development and use has been on DOD operations. Over the past 10 years, we have seen a steady increase in interest in the use of UAS for domestic purposes. However, the lack of clear FAA regulations has limited domestic use.

Domestic UAS are divided into two segments: “public” and “civil.” This article will largely focus on “civil” operations, but it is important to have a basic understanding of the difference between the two types of UAS.

A “civil aircraft” is any aircraft except a “public aircraft.” A “public aircraft” includes:

  • An aircraft that is used only for government purposes.
  • An aircraft that is leased or owned by the government and operated by any person for purposes related to crew training, equipment development or demonstration.

Therefore, if you are operating an aircraft in the U.S. National Airspace System, the aircraft is either a “public” aircraft or a “civil” aircraft. The most relevant distinction in this classification is that the FAA regulates the airworthiness and airmen of civil aircraft but not of public aircraft.

This distinction is of particular importance when considering the use of UAS in the National Airspace System.

This leads to the next significant question: Is the UAS an “aircraft” as defined by federal statutes and regulations or is it a model aircraft that is not subjected to FAA regulations?

In 1981, the FAA issued an advisory circular to address the use of model aircraft operations. The advisory circular essentially excluded model aircraft from FAA regulations but recommended compliance with certain operational standards to limit hazards that model aircraft may pose to full-scale aircraft.

Unfortunately, the advisory circular and FAA regulations did not define what a “model aircraft” is. At the time, it was generally thought that a model aircraft was a remote-controlled airplane used by a hobbyist. However, without a definition and with the advances of technology, the term “model aircraft” has become increasingly obscure.

In 2006, the FAA published a “notice of policy” to help define the difference between a UAS and a model aircraft.

In several policy statements, the FAA further provided guidance on how it defines the difference between a UAS and a model aircraft:

  • Unmanned Aircraft Systems (UAS) Operational Approval
    This notice and the processes prescribed do not apply to hobbyists and amateur model aircraft users when operating unmanned systems for sport and recreation. Those individuals should seek policy under the current edition of Advisory Circular (AC) 91-57, Model Aircraft Operating Standards. AC 91-57 is not to be used as a basis of approval for operation of any other aircraft, including by federal, state, and local governments, commercial entities, or law enforcement.
  • Unmanned Aircraft Operations in the National Airspace System
    The FAA recognizes that people and companies other than modelers might be flying UAS with the mistaken understanding that they are legally operating under the authority of AC 91-57. AC 91-57 only applies to modelers, and thus specifically excludes its use by persons or companies for business purposes.

The FAA believes that if a UAS is used for commercial activity such as taking photographs for real estate agencies or surveying commercial farming operations, the UAS is not a “model aircraft” because it is not being used by a hobbyist.

In a question-and-answer section on the FAA website relating to UAS, the FAA states:

All UAS operations for commercial or business purposes are subject to FAA regulation. At a minimum, any such flights require a certified aircraft and a certificated pilot. UAS operations for commercial or business purposes cannot be operated under the special rule for model aircraft found in section 336 of Public Law 112-95.

The FAA’s position on defining whether a UAS is a “model” or an “aircraft” was recently thrust into the spotlight because of a National Transportation Safety Board administrative law judge’s ruling in the case of Huerta v. Pirker on March 6.

The case arises from a $10,000 fine issued by the FAA against Raphael Pirker for flying a Ritewing Zephyr powered glider to take pictures at the University of Virginia. The powered glider is a lightweight, remote-controlled, electric-powered flying wing with a camera. Pirker was being compensated by Lewis Communications to supply aerial photographs and video of the university campus and medical center.

In the FAA’s enforcement letter, it cited a number of actions the FAA deemed careless and reckless. The FAA deemed Pirker’s powered glider to be an “aircraft” and, therefore, fined Pirker for violating 14 C.F.R. § 91.13(a), the regulation regarding careless and reckless actions applicable to operation of an aircraft.

Pirker filed a motion to dismiss the complaint, alleging that he was operating an unregulated model aircraft.

He acknowledged that the FAA has issued numerous policies regarding unmanned aircraft systems but claimed those were not applicable to his operation. Essentially, Pirker argued that there are “model aircraft” and “aircraft.” “Unmanned aircraft” is simply a term used to describe his model aircraft.

Pirker’s argument is not new, but it is the first to be contested. Many manufacturers and users of unmanned aircraft have long argued that the FAA cannot enforce unmanned aircraft operations by policy. At the heart of the argument is whether the FAA has enacted any rules to regulate the use of unmanned aircraft.

The congressional statute giving the FAA authority to regulate the national airspace states:

The administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.

The important words in Section 40103(b) are “by regulation or order.” It is the FAA’s regulations and orders —not policies or guidance — that govern the operation of aircraft in the National Airspace System.

Therefore, any analysis of whether an operation is permitted within the National Airspace System should focus on the regulations and orders of the FAA. The agency’s policies, guidance, notices and advisories are simply documents used to provide guidance on how one might comply with regulations or orders. They are not law, and are, therefore, not a foundation for legal enforcement.

Pirker argued that the FAA fine was based on policies and not on a rule or an order. Unfortunately, the most important question in the case was not answered: Was Pirker’s powered glider a model aircraft or an aircraft?

In reading the FAA’s enforcement letter and Pirker’s motion to dismiss, one cannot help but notice that both parties assume that their description of the powered glider is correct: Pirker assumes he is operating a model aircraft, and the FAA assumes he is operating an aircraft. Neither party explains why they believe the powered glider meets their definition.

Further complicating this issue, the judge’s opinion presumes that Pirker’s powered glider is a model aircraft. There is absolutely no discussion about why Pirker’s powered glider is a model aircraft versus an aircraft.

Although some persons would contend that the Pirker opinion means the skies are open to civil UAS, that is not entirely correct. The Pirker opinion says the sky is open to model aircraft.

Therefore, the question is whether all UAS are “model aircraft.” If that is the case, then a Northrop Grumman Global Hawk, a drone the size of an airliner, would be considered to be a model aircraft that is not subject to any FAA regulations.

Failure to address the definition of Pirker’s powered glider was a significant omission in this case and has led to industry confusion. The case is currently pending on appeal with numerous amicus briefs being filed both in support of the FAA’s position and in support of Pirker.

The Pirker opinion and the appeal largely focus on whether the FAA’s distinction between a model aircraft and a UAS was a rule that required the rule-making process.

Again, the gaping hole in the suit is a technical definition of Pirker’s powered glider. What is it about Pirker’s powered glider that either makes it a model aircraft or an unmanned aircraft?

The FAA would argue that the intended use defines the aircraft. If it is being used by a hobbyist for recreation, it is a model. If it is being used in the furtherance of business, it is an aircraft.

Pirker argues that a flying device that is controlled by people on the ground using radio systems is a “model aircraft.”8 Moreover, he contends that “it is self-evident that a device that can be held by a person, rather than transport one, is a ‘model aircraft’ as that term has been understood by anyone in the world during the past century.”

Unfortunately, this argument would suggest that any remotely controlled aircraft is a model regardless of its size or function. A Global Hawk the size of a Boeing 737 or a Predator used by the military for strategic targeting would be “models.”

While the Pirker appeal is pending, the UAS industry is left flapping in the wind. Fortunately, there are other paths to flying civil UAS in the National Airspace System without walking the Pirker tightrope.

Civil applications have been authorized through the use of restricted airworthiness and experimental airworthiness certificates. Combining an experimental airworthiness certificate with a letter of deviation authority from the FAA could permit a commercial operator to use a UAS for business activities.

The challenge with this course is the time it takes to obtain an experimental certificate. The FAA has been struggling with the significant increase in demand for experimental certificates without the manpower to process them expeditiously.

So where does this leave us? Can I fly or can I not fly?

If you are flying an unmanned aircraft in the furtherance of business, the FAA maintains that such an operation is an aircraft and must comply with current FAA regulations. If you are simply flying for recreational or hobbyist purposes, then the unmanned aircraft is clearly a model.

The FAA’s enforcement authority has been substantially weakened with the Pirker opinion. However, an appeal in favor of the FAA would swing the pendulum considerably in the FAA’s favor, thereby grounding all civil unmanned aircraft operations that are conducted without an airworthiness and airman certificate.

Source: West Law Journal Aviation (July 2014)


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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