UPDATED: Small UAS Legality Unclear in Wake of NTSB Move



By Brett Davis



A National Transportation Safety Board judge threw out the U.S. Federal Aviation Administration’s $10,000 fine against the operator of a small unmanned aircraft on 6 March, prompting a fresh look at the FAA’s authority to regulate small UAS as well as some celebratory flights around the country.



However, the FAA announced the next day that it will appeal the decision, which stays it until the NTSB rules again.

“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,” the FAA said in a statement announcing the appeal.



Testifying at a budget request hearing before the Senate Appropriations Committee on 13 March, Secretary of Transportation Anthony Foxx said the DOT, parent agency of the FAA, will enforce the FAA’s prohibition on commercial use of UAS “to the greatest extent the law allows. …”



He was responding to a question from Sen. Dianne Feinstein (D-Calif.), who said the NTSB administrative judge’s ruling against the FAA “effectively lifts the FAA’s prohibition on commercial use of small model drones, even though we passed legislation to safely integrate them over several years, assuming the FAA’s prohibition would remain in place.”



Foxx went on to tell Feinstein that “we are absolutely going to appeal all the way through every process there is” to reverse the judge’s ruling.



The case is Huerta v. Pirker, and it revolves around a 2011 action by Raphael Pirker, who flew a RiteWing Zephyr aircraft to collect images for the University of Virginia for pay, which the FAA said was illegal.



NTSB judge Patrick Geraghty ruled that the FAA has historically not treated model aircraft as regular aircraft. He also noted that the flight took place before the 2012 FAA reauthorization, which requires the agency to integrate UAS, including small ones. Because of that language, he concluded that at the time of Pirker’s flight, “The legislators were of the view there were no effective rules or regulations regulating model aircraft operation.”



Brendan M. Schulman, a lawyer from Kramer Levin Naftalis & Frankel LLP, who represented Pirker, heralded what the ruling meant for the technology. 



“This decision is a victory for technology," he said. "It establishes that the federal government must engage in the proper rulemaking process, including consultation with the public and interested constituents, before placing burdensome rules and restrictions on emerging new technologies.”



While some UAS enthusiasts declared the skies to be open for small UAS based on the ruling, AUVSI also urged a focus on safety, while noting that FAA delays have contributed to an urgent desire for commercial use.



“Our paramount concern is safety,” AUVSI President and CEO Michael Toscano said. “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.”