Analysis of FAA appeal in the Trappy case: Agency created its own problems

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

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.

Views: 1996

Comment by Gary McCray on April 13, 2014 at 9:20pm

That is precisely what I have been saying since the very beginning.

Basically that the FAA could be legally regulating this, but they just haven't bothered to get any actual legislation enacted to do so and are simply trying to bully everybody into doing what they want them to with absolutely no legal basis for doing so.

As such they should be subject to very sizable harassment counter suits.

Unfortunately, being the government, they may be either immune or at the very least like trying to get blood from a stone.

In any case I would really like to see this backfire appropriately on them.

In the long run we all need reasonable rules to make this work, unfortunately all the actions of the FAA just make it seem less and less likely that that will ever be achieved.

Comment by ikrase on April 13, 2014 at 11:01pm
While I have seen some cringeworthy opinions on the FAA and it's goals, I really doubt that good regulations that allow both amateur use and light commercial use are going to get passed without a lot of work, and the AMA is not going to be in our side, not for FPV and definitely not for commercial or experimentals.


Incidentally, is there any basis for considering RC planes or drones as ultralight aircraft?

Moderator
Comment by Gary Mortimer on April 13, 2014 at 11:10pm

Other countries are already on versions 3 and 4 of their rules. 

Comment by Euan Ramsay on April 14, 2014 at 1:01am

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.

 

Unfortunately, the FAA appears to like being the bully more than being the enabler.

Comment by Not Sure on April 14, 2014 at 1:14am

what part of "aircraft" is unclear?  ...seriously

Comment by Pedals2Paddles on April 14, 2014 at 4:31am

Our government has never once passed logical regulation that wasn't designed to benefit whoever contributed the most to the re-election campaigns. I have no faith in the the FAA miraculously passing the first ever logical piece of legislation in the history of the United States.

I guarantee whatever half-assed regulation they put into effect will:

1) Force people to join the AMA for recreational use, lining their pockets with tons of money.  If you don't want to fly in circles with a bunch of elderly grumps that hate technology at the local AMA field, face fines for flying in your own backyard.

2) Force people to pay absurd and pointless permitting or certification fees for non recreational use.  Hunt down and prosecute people who don't pay the absurd fees since they apparently have nothing better to do.  After all, using a UAV to take pictures of real estate from 40ft AGL is extremely dangerous and a much higher priority than, for example, airport security.

Comment by R. D. Starwalt on April 14, 2014 at 6:47am

To plow over this ground again...

Congress and the President essentially put the FAA on a timeline with P.L. 112-95.

The M.O.U. between the FAA and the AMA was another aspect of P.L. 112-95 in that the AMA is a organization recognised by the FAA as a "nationwide community based organization."

That's it. That's all there is to it. The proverbial ball is on the FAA's side of the net.

Announcements about UAV testing areas, selected vendors and all the other 'news' regarding this subject is part of the bureaucratic process to study and codify regulations regarding commercial use of 'drones' and similar aircraft.

It is government in action... like watching grass grow...but government in action.

This bit about Trappy is a side-show.

We should be paying attention to what is going on with that man behind the curtain.

-=Doug

Comment by Pedals2Paddles on April 14, 2014 at 7:23am

Yes, of course it all is worded as "A nationwide community based organization".  That sounds so sweet.  Except there is only only one.  The AMA is the only nationwide community based organization.  Of course the AMA thinks it is a great idea too.  They're writing this in a manner that requires you to pay to join the AMA in order participate in a hobby on your own time, on your own property, using your own equipment.  Requiring you to pay to follow their rules which may or may not make any sense for what you're doing.  Requiring you to pay to be told what to do by a bunch grumpy old men at a field where you can fly around in circles.

No thanks.

Comment by ikrase on April 14, 2014 at 7:39am

How hard is it to create another nationwide community-based organization? What is the boundary of that? DiyDrones doesn't have rules or dues, but it is world-wide?

Comment by Pedals2Paddles on April 14, 2014 at 7:45am

You an bet the regulation will define minimum requirements for a "nationwide community organization", which I bet will coincidentally match exactly what the AMA does.  And you can bet it will be impractical to start a new one. A discussion forum on the internet certainly will not qualify.

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