Pirker Decision Fails: Drones Subject to FAA Rules

As predicted, the NTSB reversed an earlier administrative law decision in Pirker and held that drones (UAS) are aircraft according to law and thus subject to FAA regulation.

The FAA accused Pirker of “reckless operation of an aircraft” and imposed a civil fine of $10,000. The FAA alleged that Pirker:

  • “deliberately operat[ed] [] an aircraft at extremely low altitudes over vehicles, building, people, streets, and structures;”
  • operated a drone over active streets,
  • caused a pedestrian on the ground to take evasive maneuvers to avoid the drone,
  • operated a drone near “numerous individuals,”
  • operated a drone near a heliport,
  • flew directly towards a building at less than roof-top level, and
  • operated the drone inside a “tunnel with moving vehicles.”

Pirker moved to dismiss the allegations by claiming that drones were not FAA-type aircraft and not subject to FAA regulations (thus, Pirker claimed there was no violation because he was just allegedly operating a drone, not an aircraft).

In a very puzzling opinion and despite decades of administrative law, the administrative law judge nevertheless dismissed the FAA allegations and claimed that the FAA did not have authority to regulate drones (UAS) because drones were not “aircraft.” Pro-drone advocates trumpeted the questionable opinion. However, as I cautioned at the time, the law plainly gave the FAA regulatory power over drones.

The FAA appealed the dismissal. On November 17, 2014, the NTSB sitting on appeal corrected the administrative law judge and reversed the dismissal. In an opinion largely echoing prior comments and consistent with administrate law procedure, the NTSB Appellate Division clarified that drones, UAS, are aircraft within the statutory definition of aircraft and are thus subject to FAA regulations including prohibitions on “reckless operation.” The court stated:

We must look no further than the clear, unambiguous plain language of 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1: an “aircraft” is any “device” “used for flight in the air.” This definition includes any aircraft, manned or unmanned, large or small. The prohibition on careless and reckless operation in § 91.13(a) applies with respect to the operation of any “aircraft” other than those subject to parts 101 and 103. Pirker II, Page 12

The NTSB Appellate Court did not decide whether Pirker was liable but instead remanded (sent back to the lower court) for additional proceedings.

Pirker II, while disappointing to some drone zealots, illustrates proper administrative law interpretation. With the interplay of statutes, regulations, opinions, definitions, and other factors, interpreting administrative law can be complex. But as Pirker II shows, the law means exactly what it says. It is up to Congress to redefine definitions if they are incorrect or no longer applicable.