UPDATE ON 3/7 : Not surprisingly, the FAA has appealed, and of course taking the position that this appeal “stays” the ALJ’s decision on the “ban” and that the “ban” is still in effect. This is of course the view that the FAA should take. An alternate view is that there never was a valid “ban” at all – so the ALJ’s decision solely relating to Pirker’s fine is stayed (e.g. the Motion to Dismiss).
The FAA attempted to fine Raphael Pirker $10,000 for “illegally” flying his plane at the University of Virginia, gathering film for a commercial.
His defense? Quite simple. Pirker argued that the FAA had no basis for fining him because the FAA had never gone through the rulemaking process and attempted to regulate model aircraft. In other words, his activity wasn’t illegal, and a 2007 FAA policy notice wasn’t binding.
On March 6th, 2014, Patrick Geraghty, an Administrative Law Judge with the National Transportation Safety Board, ruled in favor of Piker, and dismissed the FAA’s fine. In reviewing the applicable law, he held that while the FAA certainly had valid regulations pertaining to “aircraft”, they did not extend to “model aircraft” – that the FAA had historically (themselves) distinguished between those devices, and couldn’t now argue that regulations relating to aircraft encompassed models as well.
It is concluded that, as [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.
Decisional Order, Page 3.
Judge Geraghy also concluded that Congress, at least in 2012, must not have believed that there were any rules in place relating to the commercial use of unmanned aerial systems. Why? Because when they passed the FAA Modernization Re-authorization and Reform Act of 2012, specifically Subtitle B, Unmanned Aircraft Systems, Congress directed the FAA to define acceptable standards for operation and certification of civil UAS. Why do that it rules already existed?
Because the FAA had never completed the rulemaking process for “model aircraft” or “unmanned aerial systems” and because his model was not covered by FAR rules governing “aircraft” then Pirker’s actions (flying his plane for commercial use) were not prohibited by law.
The entire Decisional Order can be found here ALJ Pirker Decision (3.7.14).