Judge Smacks Down FAA Authority Over UAS Operations (UPDATED)

The friendly skies may finally be opening up for small UAVs in precision agriculture (as longs as they remain below 400 feet).

Yesterday, National Transportation Safety Board (NTSB) administrative judge Patrick G. Geraghty granted a motion to dismiss in a case that will likely set a new legal precedent, striking down current FAA regulatory authority over UAS operations by ruling against two FAA Memoranda (2005’s Memorandum AFS-400 UAS Policy 05-01 and a 2008 revision) and a 2007 FAA Notice OF Policy (07-01) as “not meeting the criteria for valid legislative rule making.”

Geraghty states in his ruling: “Significantly, both Memoranda specifically eschew any regulatory authority…stating respectively that ‘this policy is not meant as a substitute for any regulatory process’…As policy statements of an agency are not binding upon the general public these policy Memoranda cannot be, and are not, found as establishing a valid rule for classifying a model aircraft as a UAS.”

By arguing that the fixed wing UAV he piloted on Oct. 17, 2011, falls under the FAA definition of a “model aircraft” and that there is “absence of a valid rule for application of authority over model aircraft flight operations,” Raphael Pirker and his legal team exploited a longstanding loophole that allows model aircraft hobbyists to evade the FAA’s regulatory reach.

“Complainant (FAA) has historically, in their policy notices, modified the term ‘aircraft’ by prefixing the word ‘model’ to distinguish the device/contrivance being considered…FAA has distinguished model aircraft as a class excluded from the regulatory and statutory definitions (of aircraft),” ruled Geraghty.

As a result of his finding, Geraghty ordered Pirker’s Motion to Dismiss hereby granted and the FAA’s order of a $10,000 assessment against Pirker vacated.

AUVSI Responds

Today, Michael Toscano, president & CEO of the Association for Unmanned Vehicle Systems International (AUVSI), released the following statement on the National Transportation Safety Board’s Pirker Decision:

“We are reviewing the decision very carefully and we have also been in touch with the FAA to discuss its implications and the agency’s response. Our paramount concern is safety. We must ensure the commercial use of UAS takes place in a safe and responsible manner, whenever commercial use occurs. The decision also underscores the immediate need for a regulatory framework for small UAS.”

Steve Hogan, a Tallahassee, FL-based attorney well-versed in FAA regulations and an instructor of “Drone Law” at the Unmanned Vehicle University, responded to an email seeking comment on the implications of the decision. “I have read the opinion, and there is still a lot to think about. The best I can say is that this is a step in the right direction. The FAA has a variety of options now, including an appeal and emergency rulemaking. I would expect that the FAA will do something soon.”

If appealed, the case will reportedly be heard before the U.S. Court of Appeals for the District of Columbia.

UPDATE: FAA Responds, Appeal Grounds All Commercial Flights For Now

From an FAA news release dated March 7, 2014: The Federal Aviation Administration today issued a notice appealing a decision by an NTSB Administrative Law Judge in the civil penalty case, Huerta v. Pirker.

“The FAA is appealing the decision of an NTSB Administrative Law Judge to the full National Transportation Safety Board, which has the effect of staying the decision until the Board rules. The agency is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.”

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