Here are two recent court cases involving the Federal Aviation Administration (FAA) andusers of unmanned aerial vehicles (UAV). In both cases, the FAA’s position that their 2007 policy memorandum on UAVs, particularly in regard to their being used for commercial purposes, was found to be not legally binding.

Rafael Pirker v. FAA

In this court case, Raphael Pirker appealed a $10,000 fine levied against him by the FAA.

What Happened?

Mr. Pirker was alleged to have piloted a Ritewing Zephyr powered glider aircraft at the University of Virginia (UVA), where he is said to have captured images and photographs during the flight for compensation. In June of 2013, the FAA fined Mr. Pirker $10,000 because the FAA alleged that Mr. Pirker violated their ban on commercial use of UAVs when he was paid by UVO for the images and videos.

The FAA complaint “charged that Respondent acted in violation of the provisions of Part 91, Section 91.13(a), Federal Aviation Regulations (FARs).” As noted in the court decision, “Part 91, Section 91.13(a) provides: No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”

The FAA further argued that:

“1.4 C.F.R. Part 1, Section 1.1 states as the FAR definition of the term “Aircraft” a …device that is used or intended to be used for flight in the air…” And Part 9.1, Section 91.1 states that Part, “ prescribes rules governing operation of aircraft. Premised upon those FAR provisions and those of 49 IJ.S.C. Section
40102(a)(6), Complainant argues that Respondent was operating a device or contrivance designed for flight in the air and, therefore, subject to Complainant’s regulatory authority. The term, “contrivance” is used in the 49 U.S.C Section 40102(a)(6) definition, “aircraft”, whereas Part 1, Section 1,1, defines an “aircraft” as a “device”; however, the terms are basically synonymous, as both refer to an apparatus intended or used for flight.”

Mr. Pirker appealed this FAA decision and filed a Motion to Dismiss, “seeking dismissal upon the assertion that the Complaint is subject to dismissal, as a matter of law, in the absence of a valid rule for application of FAR regulatory authority over model aircraft flight operations.”

The Outcome

First, this is an interesting footnote found within the court’s decision:

Accepting Complainant’s overreaching Interpretation of the definition “aircraft”, would result reductio ad absurdum in assertion of FAR regulatory authority over any device/object used or capable of flight in the air, regardless of method of propulsion or duration of flight.

One absurd outcome if the FAA’s aircraft definition were to hold is that even flying a paper airplane for commercial purposes would be a violation!

In March, National Transportation Safety Board administrative judge Patrick Geraghty ruled in favor of Mr. Pirker, stating the following:

1. Neither the Part 1, Section. 1.1, or the 49 U.S.C. Section 40102(a)(6) definitions of “aircraft” are applicable to, or include a model aircraft within their respective definition. 24
2. Model aircraft operation by Respondent was subject only to the FAA’s requested voluntary compliance with the Safety Guidelines stated in AC 91-57.
3. As Policy Notices 05-01 and 08-01 were issued and intended for internal guidance for FAA personnel, they are not a jurisdictional basis for asserting Part
91 FAR enforcement authority on model aircraft operations.
4. Policy Notice 07-01 does not establish a jurisdictional basis for asserting Part 91, Section 91.13(a) enforcement on Respondent’s model aircraft operation, as the Notice is either (a) as it states, a Policy Notice/Statement and hence non-binding, or (b) an invalid attempt of legislative rulemaking, which fails for non-compliance with the requirement of 5 U.S.C, Section. 553, Rulemaking.
5. Specifically, that at the time of Respondent’s model aircraft operation, as alleged herein, there was no enforceable FAA rule or FAR Regulation, applicable to model aircraft or for classifying model aircraft as an UAS, 2s.

To summarize the court decision: the FAA’s existing definitions of aircraft do not include UAVs; the FAA has not established enforceable rules for UAVs; and existing model aircraft safety guidelines are only voluntary. The FAA has appealed this decision and is (finally) working on creating lawfully established rules for as early as this fall.

Texas EquuSearch v. FAA

In this more recent court case from Texas, the FAA ordered Texas EquuSearch to stop using UAVs in its missing persons searches.

What Happened?

Texas EquuSearch started in August 2000 with volunteer horse-mounted search and recovery for lost persons. The founder’s daughter was tragically murdered in September 1994 and her remains were found 17 months later. According to their website, “Texas EquuSearch has been involved in 1,350+ searches in approximately 42 states in the United States, Aruba, Sri Lanka, Mexico, Jamaica, Dominican Republic and Nicaragua.

As part of their search tools they recently started using UAVs. In February of this year they stopped using UAVs after the FAA issued an emailed order for them to stop using UAVs. Interestingly, Texas EquuSearch website says that they are a volunteer organization and they do not charge for searches. Texas EquuSearch then sued the FAA.

The Outcome

To quickly sum up the main outcome of the case, the appeals court hearing this case ruled in July that the FAA’s warning to Texas EquuSearch by email had no legal consequences. Here are a few other interesting points to be taken from reading the appeals court’s decision:

•  The FAA has never issued a regulation concerning model aircraft.
•  Over three decades ago the FAA confirmed that these devices were not subject to any regulation when it issued “voluntary” guidance.
•  The FAA rules do not indicate that there are any regulations relating to pilot certification or airworthiness that are applicable to radio-controlled model aircraft, like UAVs.
•  The FAAs 2007 policy memorandum is not binding.
•  The FAAs 2007 policy memorandum declaring that model aircraft may not be operated “by persons or companies for business purposes” is not legally binding on the public.

One other interesting and plainly obvious determination by the court is that Texas EquuSearch, being a non-profit corporation, falls outside of any commercial use restrictions in the FAA’s 2007 memorandum even if they were binding, which the court said they are not. Texas EquuSearch has resumed using UAVs in their search and rescue operations.