In March 2014, National Transportation Safety Board (NTSB) Administrative Law Judge (ALJ) Patrick G. Geraghty held that an unmanned aircraft system (UAS) used for commercial purposes to take photographs of the University of Virginia campus was not an “aircraft” under the Federal Aviation Regulations (FAR), but rather a “model aircraft.” Therefore, based on this ruling, the UAS operator could not be found to have violated the FAR’s prohibition against operating an aircraft “in a careless or reckless manner so as to endanger the life or property of another” (91 C.F.R. § 91.13(a)). See FAA v. Pirker, Docket CP-217. Given the potentially far-reaching implications of the ALJ’s decision and his reading of the regulations, the Federal Aviation Administration (FAA) appealed the ALJ’s decision to the full NTSB. Numerous other interested stakeholders submitted amicus curiae briefs to the NTSB regarding the appeal.

On 18 November 2014, the full NTSB issued its opinion in the appeal, ruling that UAS and model aircraft are “aircraft” under the FAR and that the prohibition against careless or reckless operation in section 91.13(a) did apply to UAS and model aircraft operators. See FAA v. Pirker, NTSB Order No. EA-5730. As a result, the NTSB reversed the ALJ’s decisional order and remanded the matter to the ALJ for further proceedings consistent with the NTSB’s opinion. In support of its opinion, the NTSB first concluded that the plain language of the relevant “aircraft” definitions in 49 U.S.C. § 40102(a)(6) (“any contrivance invented, used, or designed to navigate, or fly in, the air”) and 14 C.F.R. § 1.1 (“a device that is used or intended to be used for flight in the air”) were “clear on their face” and encompassed UAS and model aircraft. Second, the NTSB determined that the FAA’s policy guidance on model aircraft did not alter that result or otherwise dispose of the main issue of the case. Third, the NTSB ruled that the FAA’s interpretation of the prohibition in section 91.13(a) and its application to the aircraft used by Mr. Pirker were reasonable. The NTSB’s opinion makes clear that UAS operators cannot avoid the applicability of section 91.13(a) by describing the UAS they operate as “model aircraft” or “non-aircraft.”

The NTSB’s opinion is narrowly focused on the facts of this case and the applicability of section 91.13(a) to UAS. The opinion does not address what, if any, other sections of the FAR apply to UAS.

Once the ALJ issues its decision after further proceedings at the ALJ level, that decision may be appealed to the full NTSB, and any decision of the full NTSB on appeal may itself be appealed to a federal court of appeals.