FAA Can Make All Drone Flights Illegal, Federal Court Rules

Any drone flight under 500 feet can be considered 'reckless.' Any drone flight over 400 feet is 'unsafe.' Good luck reconciling that.

by Jason Koebler
Nov 18 2014, 2:52pm

Pirker with his drone in the American desert. ​Image: Team Blacksheep

​ Some very bad news for drone pilots this morning: An appeals board has ruled that the Federal Aviation Administration has wide latitude to make all drone flights illegal in the United States.

​The decision, by the National Transportation Safety Board, determined that the FAA's existing "aircraft" regulations can apply to model aircraft, drones, and remote controlled aircraft, which is perhaps the most restrictive possible outcome for drone pilots in a legal saga that has dragged on for more than a year.

The case,  ​which we have covered extensively, concerns Raphael "Trappy" Pirker, a Swiss pilot who was fined $10,000 by the FAA for a "reckless flight" at the University of Virginia in 2011. There was nothing overly interesting about Pirker's flight, other than the fact that he was paid for his work—something that the FAA has been trying to say is illegal for quite some time now. Pirker originally won his court case, in which a federal judge ruled that model aircraft aren't technically "aircraft" subject to the FAA's existing regulations.

Pirker's original flight​.

The appeals board disagreed, saying that the federal "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," the board wrote. " ​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."

The decision is close to what the FAA originally pushed for,  ​which is so broad that perhaps frisbees and baseballs could be considered "aircraft."

And that's the devastating part of this decision for drone enthusiasts: The FAA's existing aircraft regulations cannot be reconciled with its guidelines for model aircraft flights.  ​The statute that the FAA used to fine Pirker suggests that any flight by an "aircraft" below 500 feet can be considered reckless. The FAA's model aircraft guidelines, meanwhile, suggest that any flight over 400 feet by a drone is unsafe and potentially illegal.

" With this decision, the NTSB has declared model aircraft, paper airplanes and even children's toys to be 'aircraft,' subject to the same regulations as 747s, which ignores entirely the fact that for decades none has ever been treated as such," Peter Sachs, a Connecticut-based lawyer and founder of the Drone Pilots Association told me. "I don't think that's what Congress ever intended or that common sense and logic support today's NTSB's decision."

Brendan Schulman, Pirker's lawyer, told me that the court failed to address "whether the safe operation of drones for business purposes is prohibited by any law" and said that he is "reviewing options for our next steps in the Pirker case."

In this particular instance, the case was sent back down to a lower court for more evidence gathering and a discussion of whether Pirker's flight was actually "reckless." But, considering the FAA's definition that any flight under 500 feet by an aircraft is reckless, that seems like a mere formality.

"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," Schulman said, which is "an issue that the NTSB has said requires further factual investigation before a penalty is imposed."

So, for the time being, any drone flight by anyone in the country can be considered "reckless" by the FAA under the NTSB's latest ruling, meaning that the FAA can fine you $10,000 for flying one anywhere, for any purpose. And the fact that "any device that is used for flight" can be considered an aircraft seems to suggest that even tiny toy aircraft are subject to the FAA's whim.

Whether that's likely is another question altogether, but it's sure to have a chilling effect on the industry until the FAA releases clear drone regulations—something that it says it will do before the end of the year. It has missed multiple deadlines for that, so I wouldn't hold your breath. The state of drone regulations were already a mess—things just got a bit messier.

NTSB ruling