The Evolving Legal Landscape of The Commercial Use of Drones Federal Aviation Administration v. Raphael Pirker

Overview
The commercial use of unmanned aircraft systems (“UAS”) is an evolving area of law. As in most situations, the law trails behind technology. Recently, the tensions behind law and technology manifested in the March 6, 2014 decision in the matter of Michael P. Huerta, Administrator, Federal Aviation Administration v. Raphael Pirker.

Pertinent Facts
Raphael Pirker had been hired by the University of Virginia to take promotional aerial photos of the campus and surrounding area. To do this, he flew a Ritewing Zephyr, a powered glider, mounted with a camera, over areas of Charlottesville, Virgina. The Federal Aviation Administration (“FAA”) alleged Mr. Pirker violated a section of the Federal Aviation Regulations (“FAR”) by operating a UAS in a careless or reckless manner, fining him $10,000.

The Ruling
On March 6, 2014, an administrative law judge set aside the fine assessed against Mr. Pirker based on a close analysis of Federal Regulations pertaining to aircraft. The FAA premised its assessment on FAR part 91, § 91.13(a) which states that “no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” The FAA asserted the Zephyr falls within the definition of “aircraft” and is therefore subject to Federal Aviation Regulations. The court did not agree.

The United States Code defines “aircraft” as “…any contrivance invented, used, or designed to navigate or fly in the air.” This would suggest that the Zephyr was in fact an aircraft for purposes of the assessment levied against Mr. Pirker. However, the court found that the FAA’s prior distinctions between “model aircraft” and “aircraft” meant that they intended the two types of aircraft to be handled separately. The internal inconsistency created by interpreting FAR part 91, § 91.13(a) as extending to all types of aircraft could ultimately lead to the operator of “…a paper aircraft, or a toy balsa wood glider” being subject to the regulations. Additionally, the court relied on an “Advisory Circular” issued by the FAA as further support for its ruling. The advisory urged model airplane operators to voluntarily comply with stated regulations, setting up an undeniable inconsistency. How can model airplane operators be subject to both mandatory and voluntary safety regulations? Finally, the court relied on the existence of regulations specific to “Ultralights” as further evidence of the intent to distinguish unmanned aircraft from aircraft in general.

Potential Impact of Ruling
Unmanned aircraft systems are also known as “drones,” “unmanned aerial vehicles,” “radio controlled aircraft” and model planes and have grown in popularity recently. The convergence between UAS and other technologies has resulted in numerous potential commercial applications. There has been a resulting disconnect between existing regulations and these pilotless vehicles. The ruling in Huerta v. Pirker was a very limited one, but it does bring to light the need for continued clarification of the regulations pertaining to unmanned aircraft systems.

Matthew Kenefick is a partner at Jeffer Mangels Butler & Mitchell LLP in San Francisco. He has significant experience in advising clients on operational compliance with current, pending and developing regulatory schemes. Contact him at MKenefick@jmbm.com or 415.984.9677.