Small UAS legality unclear in wake of NTSB move

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A National Transportation Safety Board judge on March 6 threw out the U.S. Federal Aviation Administration’s $10,000 fine against the operator of a small unmanned aircraft, 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 the earlier decision 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.

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.”


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