The FAA Should Pull Back

Responding to this week’s NTSB ruling, the author of this op-ed in today’s L.A. Times suggests that the FAA should pull back from its regulation over “hundreds of types of flying devices that are not even capable of reaching the minimal safe altitude of manned airplanes.”

Small drones are not built for lengthy interstate flights at altitudes where conventional airplanes fly, so why should a federal agency be the chief regulator of these devices? Rather than seeking to expand its regulatory jurisdiction all the way down to the ground, the FAA should advocate for itself a more limited role in a collaborative federal, state and local regulatory scheme tailored to the unique attributes of drone technologies.

The author suggests that the FAA limit itself to “aspects of drone regulation that are most appropriately implemented at the federal government level.” For example, FAA safety standards could require the incorporation of geo-fence technology “to prevent operators from flying their drones into the airspace surrounding hundreds of airports around the world.”

This calls to mind two points we have made on this blog. As we noted yesterday, Congress appears to have expressed an intent to limit the FAA’s jurisdiction to risks to the National Airspace. We think that any risk posed by small drones can be adequately addressed by regulating them as consumer products rather than as traditional aircraft. Geo-fencing and built-in height and radius limitations are among the features that could be required to be incorporated in over-the-counter drone technology.

The Meaning of Yesterday’s NTSB Ruling

All Is Not Lost

Yesterday’s ruling from the NTSB, overturning Judge Geraghty’s order in the Pirker case, caused quite the twitter storm, and practically crashed our Google news feed. So, a lot of virtual ink has already been spilled on this. But much of it has been either poorly written or flat-out wrong.

We stand by our initial take, which is that the scope of this ruling is ultimately quite narrow. We also think it stands on shaky ground, and could be vulnerable on review by an Article III court.* Here’s why.

First, the opinion was narrowly tailored to the question of whether a model aircraft falls within the FAA’s enforcement authority under 14 C.F.R. § 91.13(a), which provides that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” The key finding was that a model aircraft is an “aircraft” under 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1. Section 40102(a)(6), the NTSB concluded:

defines “aircraft” as “any contrivance invented, used, or designed to navigate, or fly in, the air.” Similarly, 14 C.F.R. § 1.1 defines “aircraft” for purposes of the FARs, including § 91.13, as “a device that is used or intended to be used for flight in the air.” The definitions are clear on their face. Even if we were to accept the law judge’s characterization of respondent’s aircraft, allegedly used at altitudes up to 1,500 feet AGL for commercial purposes, as a “model aircraft,” the definitions on their face do not exclude even a “model aircraft” from the meaning of “aircraft.” Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. An aircraft is “any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless.

That sounds like a broad conclusion. It is, and it isn’t. The NTSB points out that, at the time of the original Federal Aviation Act:

so-called “drones” were largely the currency of science fiction. Congress demonstrated prescience, however, in the early definition of “aircraft”; it expressly defined the term as any airborne contrivance “now known or hereafter invented, used, or designed for navigation of or flight in the air.”

… [The FAA] may choose to exclude certain types of aircraft in a practical sense, by refraining from bringing a charge under the FARs against a model aircraft operator; Advisory Circular 91-57 implies such a practice, and the processes outlined in 14 C.F.R. §§ 11.81 – 11.103 provide a more formal means of seeking exemption. However, for the case sub judice, the plain language of § 91.13(a), as well as the definitions quoted above, does not exclude certain categories of aircraft.

Turning to whether the FAA correctly applied Section 91.13(a) to Pirker’s model aircraft, the NTSB points to the doctrine of judicial deference to agency interpretations of the statutes they are charged with enforcing. Agency interpretations will generally be accorded deference if the agency can point to a reasonable basis in the underlying statute. The NTSB concludes that, since nothing in the history of the statute or the FAA’s enforcement actions indicate a clear intent to categorically exclude model aircraft from the definition of “aircraft,” the FAA’s interpretation should be upheld as reasonable.

But the NTSB also hints that the scope of this conclusion will be constrained by practical limits on the FAA’s prosecutorial discretion. Simply put, the FAA cannot prosecute every operator of a model aircraft who does something dangerous or foolish. The decision also does not grant the FAA license to enact a wholesale prohibition on the operation of model aircraft, or even require licensing for hobbyists.

In summary, if you are an amateur hobbyist who operates a model aircraft within traditional parameters – less than 400 feet, within line of sight (precise definitions are being sorted out in the courts), and you refrain from doing anything stupid, the chances of getting a citation from the FAA are exceedingly remote.

Pirker might be able to argue that the NTSB’s ruling is inconsistent with the scope of the FMRA’s Special Rule for Model Aircraft, which we discussed here. The Special Rule contains a statutory construction provision:

Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

FMRA, Sec. 336(b) (emphasis added).

Although FMRA was enacted after Pirker’s “offending” flight, he could argue that this statutory provision shows that the FAA’s interpretation is directly at odds with Congressional intent, vis a vis model aircraft. A threat to individuals and their property, he might contend, is not a threat to the “safety of the national airspace system.” In other words, unless a model aircraft has somehow threatened the safety of the national airspace, as that has been traditionally defined, its unsafe operation should be a matter for local police authorities, not the FAA.

Such an argument would have sound Constitutional underpinnings. Congress derives its authority to regulate airspace from the Commerce Clause of Article I, which gives Congress the power to regulate interstate commerce. Granted, the courts have construed this power so broadly that it is by now practically meaningless as an enumerated limitation on the federal government. But it is generally recognized that the power extends to regulation of anything that has a material impact on interstate commerce.

What constitutes an effect on interstate commerce is typically a fact-sensitive question. Hypothetically, prosecuting a model aircraft operator who buzzes old ladies on a sidewalk is not something that even remotely affects interstate commerce, whereas an operator who flies his Phantom II into the air intake of a commercial jet does affect interstate commerce.

It will be interesting to see whether Mr. Pirker takes up these questions on appeal to an Article III court.

* An Article III court is a court established by Congress under Article III of the U.S. Constitution. The NTSB court is an administrative court and is therefor part of the Executive Branch under Article II. Article III courts have jurisdiction to hear appeals from the decisions of administrative courts.

The NTSB Remands the Pirker Case [Updated]

The NTSB has spoken. Short version: The NTSB concludes that the FAA has jurisdiction to regulate the safe operation of model aircraft, and has remanded the Pirker case for findings of fact on whether Pirker operated his RITEWING Zephyr drone in a reckless manner. The full decision is here.

The NTSB begins by defining the scope of its opinion:

At this stage of the proceeding … we decline to address issues beyond the threshold question that produced the decisional order on appeal: Is respondent’s unmanned aircraft system (UAS) an “aircraft” for purposes of § 91.13(a), which prohibits any “person” from “operat[ing] an aircraft in a careless or reckless manner so as to endanger the life or property of another”? We answer that question in the affirmative.

The law judge’s ruling in Pirker’s favor turned on the conclusion that the FAA had never asserted jurisdiction over model aircraft, and that the FAA’s position now would lead to the “risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the ‘operator’ to the regulatory provisions of [14 C.F.R. part 91 and] Section 91.13(a).” The NTSB unequivocally rejects that conclusion:

Even if we were to accept the law judge’s characterization of respondent’s aircraft, allegedly used at altitudes up to 1,500 feet AGL for commercial purposes, as a “model aircraft,” the definitions on their face do not exclude even a “model aircraft” from the meaning of “aircraft.” Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. An aircraft is “any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless.

From there, the NTSB concludes that the FAA’s interpretation of its jurisdiction as allowing it to prohibit the “reckless” operation of small, unmanned aircraft under Section 91.13(a) is reasonable. The NTSB is not swayed by the voluntary guidelines found in Circular 91-57:

Nothing in Advisory Circular 91-57, on its face, reflects any intent on the part of the FAA to exempt operators of unmanned or “model aircraft” from the prohibition on careless or reckless operation in § 91.13(a). At most, we discern in the advisory circular a recognition on the Administrator’s part that certain provisions of the FARs may not be logically applicable to model aircraft flown for recreational purposes. But nothing in the text of the document disclaims, implicitly or explicitly, the Administrator’s interest in regulating operations of model aircraft that pose a safety hazard. More importantly, the advisory circular puts the reasonable reader on notice of the Administrator’s intent to ensure the safe operation of model aircraft by appropriate means.

Writing at Forbes, Gregory S. McNeal emphasizes that small drone operators are now on notice that they can be fined for reckless operation of any unmanned aircraft.

Asked for comment, Pirker’s attorney, Brendan Schulman, kindly responded:

While we disagree with the decision, today’s NTSB ruling in the Pirker case is narrowly limited to whether unmanned aircraft systems are subject to an aviation safety regulation concerning reckless operation, an issue that the NTSB has said requires further factual investigation before a penalty is imposed. The more significant question of whether the safe operation of drones for business purposes is prohibited by any law was not addressed in the decision, and is currently pending before the D.C. Circuit in other cases being handled by Kramer Levin. We are reviewing the options for our next steps in the Pirker case.

We agree with Mr. Schulman’s assessment. This decision only goes so far as to say that the FAA can prohibit the reckless operation of model aircraft, the FMRA’s Special Rule for Model Aircraft notwithstanding (apparently). It reaches no conclusions on whether Mr. Pirker should be fined. However, if the law judge finds that Pirker operated his aircraft in a reckless manner, he might have no choice but to sustain a fine.

As a practical matter, we would guess that the NTSB was influenced in its thinking by a growing number of press reports – some of which could be taken more seriously than others – about reckless conduct by amateur drone operators. Perhaps the NTSB even read a recent article in which an amateur operator begged for someone to stop him before he hurt somebody. For now, we can only speculate.

UPDATE: Read this for our follow up thoughts.

Litigation Pushback Against the FAA: A Brief History

The Volokh Conspiracy guest-bloggers Michael Berry and Nabiha Syed have written a lengthy post about the recent history of litigation between the FAA and small drone operators. It’s an excellent and detailed review of everything from the Pirker case, to Texas Equusearch, to the FAA’s Notice of Interpretation of the special provision governing model aircraft, which led to the recent Petitions for Review filed by Brendan Schulman on behalf of persons such as our friend Peter Sachs.

Indeed, for those who would like to quickly educate themselves on the current state of play vis a vis small drones, or sUAS (also called microdrones), this would be a good place to start.

More drone law-blogging at the WaPo

Michael Berry and Nabiha Sayed have a new guest post on developments in drone law at The Volokh Conspiracy blog. Today, they provide a pretty solid overview of the FAA’s slow start at promulgating UAS regulations. Recommended reading for anyone who might be new to the topic.

They promise to review the various lawsuits that have been filed, tomorrow.

A week of drone law blogging at the Washington Post!

Michael Berry and Nabiha Syed are guest-blogging at The Volokh Conspiracy this week in a series dedicated to the regulation of private drone use. Their first post, on “journo-drones,” is here. Today, they write about philosophical approaches to drone regulation:

As policymakers consider drone regulation – particularly with respect to privacy and safety – the possible fields of regulation fall into five principal realms: operators, flight, purpose, property and surreptitious use. Some of these categories face practical difficulties, while others present constitutional issues. Nevertheless, these five fields offer a framework to help make sense of the legislation and regulation emerging around the use of drones.

The authors intend to visit the history of the FAA’s piecemeal approach, tomorrow.

In the meantime, we would suggest that they consider the consumer product approach to sUAS regulations for one of their posts.