3D Robotics


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.

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  • I would like to thank Austin Suhler, RD Starwalt, Dave Smith and everyone else that brought some positive thoughts into this conversation and helped to set the record straight.

    Pedals, I respect your right to speak your thoughts but I respectively ask that you re-consider your comments..

    First the AMA organization is run by a group who SERVE us modelers for a few years then pass the baton to others. This runs contrary to a power structure. Their SERVICE and time away from their regular lives and family is very much appreciated.

    Second there is not enough money left over in this hobby to line anyone's pockets. 

    Third, we do not have any other organization that could lobby for our interests in the face of this regulatory threat. Without AMA's efforts we will surely loose this regulatory battle. Pedals, if you know of any other organization doing this please let me know. They might be worthy of our support or you should feel free to start your own group to lobby for our hobby. Please be sure to write to your Congressman and Representatives when AMA needs your support.

    Pedals would you please consider your position and lend support for AMA

  • Moderator

    Don't forget that Michael P. Huerta administrator of the FAA is a political appointee.  His job before the FAA was Managing Director of the 2002 Olympic Winter Games, and before that commissioner of New York City's Department of Ports.  While his experience in transportation qualifies him as administrator, he really has no aviation experience in his background. Not that other FAA members don't.  

    His appointment is from 2013 for 5 years, but because he's a political appointee, he can be replaced by a new administration.  

  • I would be fine with joining the AMA if we could carve out a place for FPV.
  • Moderator

    Hi P2P,

    Just so you know there are a lot of persons active here in DIYD who come from the "Grumpy old Men" group of very experienced and knowledgeable fliers without which you would not have modern RC, UAV's or any of the other great products developed over the last 50 yrs. 

    For one I am VERY proud to belong to that group. 


  • David, you have an misconception.  The AMA is not lobbying for you or us.  The AMA is lobbying for the AMA.  And the FAA and politicians will do whatever the most well funded lobbying group does to further their re-election campaigns.

  • I think we all should be hopeful that the FAA gets some regs down on the books regarding this. If they don't, it will be left up to the states and you all have seen what kind of nightmare that will bring.

    If they do require a license, you will also probably have to get a restricted radio permit for yourself as well so that you can communicate with ATC if needed.

  • I'm a ham as well, and also not a member of the ARRL.  I have no desire to be. I do my own thing and they can do theirs.  Although the ARRL could definitely give the AMA a run for their money in the the grumpy old men department!

    The difference however is extreme.  You don't need to be a member of the ARRL or any other organization to operate your ham radio for personal hobby use.  But as written, they absolutely will require you to be a member of a national organization to operate your own personal hobby UAV.  And the only national organization is the AMA.  So yes, you will be required to join the AMA if you want to use a UAV for personal hobby non-commercial purposes.  This would be as if ARRL membership was required to operate a ham radio from your house.

  • No one is going to be required to join the AMA just like no amateur radio operators are required to join the ARRL.

    The ARRL is recognized as a community based organization by the FCC. They lobbied for that just like the AMA did with the FAA.

    Some of the editorials from the 1970's and early 80's in the model aircraft mags, regarding similar fears and overs FAA actions, have nearly the exact same phrases and over-reacting comments.

    Those grumpy old men at those flying fields operate they way they do because of the insurance liability that is required (and yes, some of them truly are grumpy). The AMA got the insurance coverage because, as a group, clubs agree to operate under rules to protect people and property.

    You think US clubs can be difficult? Check out the by-laws and requirements of other countries -- which is completely out of topic for this FAA discussion anyway.


    The American Radio Relay League (ARRL) is the national association for amateur radio, connecting hams around the U.S. with news, information and reso…
  • Hoestly, I'm going to spend as much time flying my aircraft before September 2015 as I can. I've been talking to a few ATC buddies of mine who have been making inquiries as to what the future holds for them and UAS's in the airspace, because they control airspace in a very military and commercial developmental area, and they will legitimately have to interact with these systems on a daily basis. They've heard things about requiring pilot's licenses to operate them, new classifications of aircraft, COA's, etc... While I hope none of these options are actually selected as legislation, I would not, in any extent, be surprised to find the need to get a $3000 license to fly a 1 pound quadcopter.

    I agree whole-heartedly that regulations and groundrules need to be in place to prevent incidents, like the phantom crashing in New York, from even existing. I even agree 100% that we should have some system of testing, training, and assessing pilots before they are allowed to fly in populated areas with aircraft that weigh enough to actually cause damage. But the reality is that the FAA will most likely place restrictions so stringent that the average flyer will not be able to meet the requirements needed to fly. That would be a very sad day for the future of American based technology. I sincerely hope the FAA cannot meet their deadline and that the regulating power for UAS's falls to a group of people who have some sense.

  • 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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