The NTSB issued a decision on November 17, holding that drones are aircraft and subject to the code of federal regulations that govern aircraft. In Michael P. Huerta, Administrator, Federal Aviation Administration v. Raphael Pirker, the NTSB ruled that the facts of the case required it to ascertain a clear, reasonable definition of aircraft for purposes of prohibiting their careless and reckless operation under 14 C.F.R. § 91.13(a). In holding that a drone is an aircraft, the NTSB relied on the definition of aircraft in 49 U.S.C. § 40102(6) and 14 C.F.R. § 1.1: an “aircraft” is any “device” “used for flight in the air.” The NTSB ruled that “[t]his definition includes any aircraft, manned or unmanned, large or small.”

The FAA’s assessment order stated that Pirker operated a Ritewing Zephyr drone in a series of maneuvers around the University of Virginia (UVA) campus in Charlottesville, Virginia. With the guidance that a drone is an aircraft, the NTSB sent the case back for a hearing to determine whether Pirker had operated his drone in a careless or reckless manner so as to endanger the life or property of another contrary to 14 C.F.R. § 91.13(a). According to the FAA, Pirker operated his drone at an altitude of about 10 feet above the ground up to 1,500 feet at and near persons on the UVA campus.

The NTSB’s holding that drones are aircraft will have the following far-reaching consequences.

It is more likely that FAA pilot certification for commercial drone operators will be required.

If a drone is an aircraft, must its operator have a pilot’s license? Rumors and news reports suggest the FAA will head that way with new regulations it is expected to announce in the near future. Those who operate drones for personal pleasure and within limits set by the FAA (perhaps below 400 feet in altitude and away from airports) probably won’t be required to obtain a pilot’s license. But those who operate drones for compensation or hire likely will be required to obtain one from the FAA. It is also quite possible that the FAA may require commercial drone operators to log some time in an aircraft before operating a drone. The number of hours, course of study, and flight requirements remain to be seen.  

Drone operation can have criminal consequences under state law.

Many state statutes make it a felony to operate an aircraft in a careless or reckless manner. California, New York, and Florida statutes, for example, provide penalties. Under Florida Statute 860.13(1)(b), it is a third degree felony “[t]o operate an aircraft in the air or on the ground or water in a careless or reckless manner so as to endanger the life or property of another.” Moreover, under Florida Statute 860.13(2), in a prosecution for careless or reckless operation of an aircraft, the court “… in determining whether the operation was careless or reckless, shall consider the standards for safe operation of aircraft prescribed by federal statutes or regulations governing aeronautics.” Now that the NTSB has ruled that a drone is an aircraft, states interpreting their respective statutes that proscribe the reckless or careless operation of aircraft may be more likely to conclude that drones are aircraft. If they do, it may be possible to criminally prosecute an operator of a drone if there is probable cause to believe that the drone operator operated the drone in a careless or reckless manner so as to endanger the life or property of another.

Drone operation will require consideration of the many CFR sections that may now apply. 

Pirker did not illegalize drone operation for noncommercial purposes. It simply ruled that a drone is an aircraft. But because a drone is an aircraft, its operation—and its operator—will be subject to the CFR pertaining to aircraft. This means that some provisions in Part 91 of the CFR apply to both commercial and non-commercial drone operators. For example, the prohibition against careless or reckless operation of aircraft in 14 CFR § 91.13(a) now applies to both commercial and noncommercial operations of drones because 91.13(a) makes no distinction between the two. Rather, the linchpin of 14 CFR § 91.13(a) and many other federal regulations is whether an aircraft is involved. After Pirker, there are many other regulations in Part 91 that now apply to any drone operator. For example, under 14 CFR § 91.17, it is a violation of the CFR to operate an aircraft as a crewmember within eight hours of consuming any alcohol beverage, while under the influence of alcohol, or with a blood alcohol level (BAL) of .04 or greater. It now appears that it is a violation of 14 CFR § 91.17 to operate a drone within eight hours of consuming alcohol, while under the influence of alcohol,  or with a BAL of .04 or above.

Conclusion

Pirker is a win for the FAA, which seems to be moving toward making many rules that will govern drone operators. But for now, until the FAA announces its drone regulations,Pirker confirms that a drone is an aircraft subject to the same federal regulations that apply to all aircraft. The trend toward regulating drones as aircraft (and drone operators as pilots) will likely continue as the FAA seeks to adopt rules and regulations regarding drone operations.