LeClairRyan Attorneys: Court Ruling Highlights Need for Clearer FAA Regulations on Drones

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Veteran aviation attorneys applaud dismissal of glider operator’s $10,000 fine, but cite need for clearer regulations on model aircraft vs. unmanned aircraft systems.

On the positive side, this may expedite the rulemaking process the FAA has been muddling with for several years

A March 6 court ruling highlights the need for greater clarity on the difference between unregulated model aircraft and regulated drones, said members of a LeClairRyan practice group focused on unmanned aircraft systems (UAS).The ruling in Michael P. Huerta, Administrator, Federal Aviation Administration, v. Raphael Pirker (Docket CP-217) was issued by Judge Patrick G. Geraghty of the National Transportation Safety Board’s Office of Administrative Law Judges

“In throwing out a $10,000 fine levied by the FAA against the operator of a small glider, an administrative law judge with the National Transportation Safety Board has essentially declared that model aircraft can fly freely in U.S. skies,” said Tim Adelman, a shareholder in the national law firm’s Annapolis, Md., office and leader of its new UAS practice group. “Nonetheless, the world of UAS is abuzz about a broader and more significant question: namely, whether all drones should be considered ‘model aircraft.’ If this is the case, then a Global Hawk—a drone the size of an airliner—would not be subject to any FAA regulations.”

According to the FAA enforcement letter, the case arose out of a $10,000 fine issued by the FAA (Docket 2012EA210009)against Raphael Pirker for using a Ritewing Zephyr to take pictures and video at the University of Virginia. Small and lightweight, Pirker’s remote-controlled craft was essentially an electric flying wing outfitted with a camera, Adelman explained.

That might sound like a clear example of model aircraft. But in the absence of clear legal distinctions, Adelman noted, the difference between conventional and model aircraft is in the eye of the beholder. “The FAA considered Pirker’s vehicle an unmanned ‘aircraft,’ and regulators slapped him with a $10,000 fine for violating the regulation on ‘careless and reckless’ aircraft operation,” said Adelman, an instrument-rated, certified flight instructor with broad experience representing UAS manufacturers and users.

Pirker filed a motion to dismiss the complaint, according to court documents. “The FAA has a longstanding Advisory Circular, issued in June 1981, that states model aircraft do not need to comply with FAA regulations,” Adelman noted. “Pirker argued that his Ritewing Zephyr was, in fact, a model aircraft.”

While Pirker acknowledged that the FAA has issued numerous policies regarding UAS, he claimed those were not applicable to his case, according to Pirker's motion to dismiss. “The judge found that no part of the relevant sections on definitions of ‘aircraft’ were applicable to, or included model aircraft within their respective definitions,” noted veteran aviation attorney Douglas McQueen, who is based in LeClairRyan’s Newark, N.J., office and is an experienced commercial airline pilot and trained airline accident investigator and aircraft dispatcher.

“The judge felt the FAA overreached with its interpretation of the definition of ‘aircraft,’” McQueen continued. “In the ruling, he wrote it would be absurd to assert FAA regulatory authority over any device or object used or capable of flight in the air, regardless of method of propulsion or duration of flight.”

Pirker also argued the FAA had never enacted any specific rules regulating the use of unmanned aircraft and said the agency’s fine was based merely on policies, Adelman noted. “This was not a new argument—indeed, many manufacturers and users of unmanned aircraft have long argued the FAA cannot enforce unmanned aircraft operations by policy—but it was the first to be contested,” he said.

Moving forward, it is likely the FAA will be forced to clarify its position on what constitutes a regulated UAS vs. an unregulated model, Adelman said. “I would not be surprised to see the FAA issue an emergency rule or order to address when a drone is considered an aircraft for enforcement purposes,” he said. “On the positive side, this may expedite the rulemaking process the FAA has been muddling with for several years. For the time being, the ambiguity from the judge’s ruling will inhibit the FAA’s ability to enforce regulations dealing with drone flights.”

But even an emergency order will likely be inadequate without detailed, full-fledged regulations, added McQueen. “The FAA should have drawn the line at those aircraft that are truly capable of interfering with navigable airspace, which would therefore have a nexus in interstate commerce,” he said. “A new, all-encompassing emergency rule will leave the FAA exactly where it was yesterday—with inadequate resources to cover all of the encompassed operations, and on questionable constitutional grounds.”

LeClairRyan’s aviation attorneys have represented UAS manufacturers and other entities employing these systems, including state and federal governments, since 2006. A member of the team is credited with obtaining the first jurisdiction-wide certificate of authorization for UAS ever issued by the FAA, which paved the way for public entities across the nation. Members of the team regularly present at UAS-related conferences organized by a wide range of federal government agencies, trade groups and professional associations.

About LeClairRyan
As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses. With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 350 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit http://www.leclairryan.com.

Press Contacts: At Parness & Associates Public Relations, Marty Gitlin, (631) 765-8519, mgitlin(at)parnesspr(dot)com, or Bill Parness, (732) 290-0121, bparness(at)parnesspr(dot)com.

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