Calls FAA Action 'Unprecedented Regulation-By-Policy'

Attorneys for Raphael Pirker have filed a legal brief in response to the FAA's appeal of an NTSB Administrative Law Judge's decision to dismiss a $10,000 fine against the young UAV operator.

The brief calls the FAA's action against Pirker, and by extension its commercial ban on UAV use, "unprecedented regulation-by-policy of a previously unregulated device so as to impose an unprecedented (and unenforceable) ban on "business" use of that technology.

"Out of the likely one billion model aircraft operations in United States history, why did the FAA pursue enforcement only against this one, involving a five-pound styrofoam model which caused no injury or property damage? Why has the FAA bent over backwards to call into question the very meaning of an obvious term it has freely used for decades, "model aircraft"? Because the alleged purpose of Mr. Pirker's model aircraft operation was commercial," the brief states.

"It is undisputed that the FAA has never expressly regulated model aircraft or unmanned aircraft systems. In 1981, the agency confirmed this lack of model aircraft regulation by issuing Advisory Circular AC 91-57, requesting only "voluntary compliance" with safety standards "for model aircraft operators." These standards, such as a request that models be flown below 400 feet AGL, do not specifically align with any actual federal aviation regulations, such as altitude restrictions or airspace classifications," the brief continues. "AC 91-57 makes no distinction between model aircraft flown for commercial purposes and those flown for recreation. Nor does it distinguish between public and civil operators. It applies to any "model aircraft operators." Nowhere does the FAA indicate the possibility of an aviation penalty. Indeed, that notion is "incompatible" with standards that are "voluntary.""

Pirker's attorneys say that the absence of any enforceable regulation concerning model aircraft operation is confirmed by "the complete historical absence of FAA (or NTSB) involvement in those very rare instances where model aircraft caused property damage, injury, or even death.

"For example, neither the FAA nor NTSB investigated when a girl in a park was injured by a model helicopter near McDill Air Force base, nor did they investigate the fatal accident involving a large-scale model helicopter in Brooklyn last September. These incidents were handled by local police.

"Notably, model aircraft have an extraordinary safety record, and such incidents remain extremely rare," the brief states.

What is clear is that neither side is going to give up this fight easily. Stay tuned ...

FMI: Legal Brief