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In Forbes, aviation expert John Goglia (at right) analyzes the FAA's appeal in the the "Trappy" case. 

In an indication that the FAA is not going to give up on its test case against Raphael Pirker for operating a small drone in the vicinity of the University of Virginia, the FAA filed its brief specifying the legal bases for its appeal of the National Transportation Safety Board judge’s decision dismissing the FAA’s $10,000 civil penalty.  The appeal will be decided by the Board’s Members who are charged with reviewing appeals of FAA cases. 

The FAA raises two issues in its brief: 1. that the judge erred in determining that Pirker’s small drone was not an “aircraft”, as defined by the Federal Aviation Regulations (FARs) and 2. that the judge erred in determining that the small drone’s operation was not subject to the FARs.

The FAA’s arguments are familiar to many who have been following this case.  The FAA believes that drones or unmanned aircraft systems (its preferred term) are aircraft and that as aircraft are subject to the requirements of federal regulations, including the requirement that aircraft not be “operated in a careless or reckless manner so as to endanger the life or property of another.”  The FAA contends in its brief that the NTSB judge was wrong to conclude that Mr. Pirker’s drone was a model aircraft and that the FAA had effectively waived any right to enforce its rules against model aircraft operators, regardless of whether they are operated as a hobby or for commercial purposes.

While the FAA claims that Mr. Pirker’s drone was an aircraft and that he acted as pilot-in-command when he was not licensed, the FAA does not charge him with violations related to the drone’s lack of certification or his lack of a pilot’s license.  The FAA’s sole charge against Mr. Pirker is careless or reckless operation of an aircraft.

As a Board Member for almost ten years, I reviewed hundreds of appeals of FAA cases against pilots and mechanics.  Most often, the FAA’s cases were properly brought and the legal and factual bases were appropriate and I would vote to sustain the FAA’s position.  On occasion, the FAA’s legal arguments defied logic and I would vote to reverse the action.  This case appears to me to be one that defies logic.  How can the FAA suddenly claim that a small unmanned aerial vehicle is an aircraft when for decades it has allowed them to be operated – albeit under the term “model aircraft” – without complying with any of the regulatory requirements for aircraft, such as type certificates, airworthiness certificates, maintenance requirements, pilot licenses and so on? 

The distinction the FAA has made between commercial and non-commercial when it comes to the operation of model aircraft doesn’t make sense to me, when the issue is really whether they are aircraft at all. That being said, I am concerned with the manner in which this drone was allegedly operated, especially if it was operated too close to people or property.  But even if the drone’s operation was unsafe, unless that operation is covered by a rule, FAA enforcement would be inappropriate.

Since I’m not a lawyer, I checked with Loretta Alkalay, former top attorney for the FAA in New York and an adjunct professor at Vaughn College of Aeronautics (where we co-teach) what she thought of the FAA’s legal arguments.  This is her response:

“The FAA clearly has the statutory authority to regulate commercial unmanned aerial vehicles of any size. (Congress recently took away the FAA’s authority to regulate model aircraft operated for hobby or recreational purposes.)  The question is whether it has properly promulgated regulations to do so.  I do not believe it has when it comes to small UAVs to the extent that they can be considered model aircraft, as in the case of Mr. Pirker’s.  Although I am sympathetic to the FAA wanting to prohibit unsafe operation of these aerial vehicles that may endanger persons or property – as it clearly believes was the case here- it has to do so via properly enacted regulations. 

Unfortunately, the FAA created its own legal confusion by relying on advisory (as opposed to regulatory) methods for distinguishing model aircraft (which could include the small drone operated by Mr. Pirker) from other aircraft beginning in 1981.  Its attempt to retroactively distinguish model aircraft based on the nature of their operations (commercial vs. non-commercial) is unenforceable as that distinction has only been made via public notices (first starting in 2007) and not by  rulemaking.  Since notices are not rules, they are legally unenforceable.

Fortunately, the remedy for the problem created by the FAA also lies with the FAA.  And that is to issue legally promulgated rules to cover small, commercially-operated drones.”

It seems to me that it would be a better expenditure of FAA time and resources to focus on issuing regulations allowing the safe operation of small commercial drones than continuing this case against Mr. Pirker.