Drone photographers … rejoice? Judge rules FAA has no authority over model aircraft. FAA appeals.

by Peter Sachs

posted Monday, March 10, 2014 at 2:45 PM EDT


While the FAA has traditionally avoided regulating model aircraft, growing use of drones for paid photo and video work has piqued the agency's interest. The FAA has never taken action againt "commercial" use of model aircraft, but it has long claimed that the activity is illegal. Some drone photographers even attempt to sidestep the issue by providing 'free' drone photography services, charging only for the editing.

On July 18, 2013, the FAA filed a complaint (known as an "Order of Assessment"), in Administrator v. Raphael Pirker, NTSB Docket CP-217 alleging that the model aircraft’s operator, Raphael Pirker, operated his four pound foam model aircraft in a "careless or reckless manner," in violation of Federal Aviation Regulation 91.13(a). The case has since been followed closely by model aircraft and drone photography enthusiasts.

On March 6, 2014, National Transportation Safety Board Administrative Law Judge Patrick Geraghty summarily dismissed the first and only complaint ever pursued by the FAA against a remote-controlled model aircraft operator. While model aircraft operators nationwide were elated by the ruling, they will now have to await the decision in the appeal, which the FAA announced it intended to file on March 7, 2014.

The FAA's original complaint proposed a civil penalty of $10,000.00 for Pirker's violation of Regulation 91.13(a). Interestingly, although the FAA has long claimed that "commercial use" of model aircraft is illegal, the complaint mentioned but did not invoke Piker’s commercial use as a basis for its proposed fine. Instead it relied solely upon Pirker’s alleged "recklessness."

Harmless hobby or harbinger of death?

Pirker’s attorney, Brendan Schulman of Kramer Levin Naftalis & Frankel, LLP argued that there are no enforceable FAA regulations concerning model aircraft, and therefore model aircraft are not subject to them; that the FAA has historically eschewed any attempt to regulate model aircraft; that the FAA’s "policy statements" claiming authority over model aircraft are neither binding nor enforceable; and that model aircraft are not "aircraft" as defined under current federal law.

Judge Geraghty agreed wholehearted with Schulman, and dismissed with prejudice the FAA’s complaint. In his scathing decision, Geraghty concluded that the FAA:

. . . has not issued an enforceable FAR regulatory rule governing model aircraft operation; has historically exempted model aircraft from the statutory FAR definitions of "aircraft" by relegating model aircraft operations to voluntary compliance with the guidance expressed in AC 91-57, Respondent's model, aircraft operation was not subject to FAR regulation, and enforcement . . . 


. . . As policy statements of an agency are not - aside from the fact that the guidance policy therein, expressed is stated, as for internal FAA use -binding upon the general public, and as any regulatory effect is disclaimed, these Policy Memoranda cannot be, and are not, found as establishing a valid rule for classifying a model aircraft, as an UAS, or as finishing basis for assertion of FAR regulatory authority vis & vis model aircraft operations.

Not surprisingly, the FAA quickly announced that it had filed a Notice of Appeal to the landmark decision because of it’s purported ". . . concern that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground." The full, five member panel of the NTSB will now hear the FAA’s appeal.

Peter Sachs, Esq.

Peter Sachs is an attorney, private investigator, commercial helicopter pilot and  advanced ground instructor, volunteer fire  department member, amateur photographer and drone enthusiast.  ­

First photo courtesty iStockphoto. Second photo courtesy Anders Vindegg CC BY-NC-SA 2.0.