HIGHLIGHTS:

  • The NTSB has overturned an administrative ruling in favor of an aerial photographer, upholding the FAA's determination that unmanned aerial systems (UAS), commonly referred to as drones, are "aircraft" subject to federal regulation.
  • This decision applying the regulations to UAS, regardless of size, is troubling for businesses and news media companies.

The National Transportation Safety Board (NTSB) has overturned an administrative ruling in favor of an aerial photographer, upholding the Federal Aviation Administration's (FAA) determination that unmanned aerial systems (UAS), commonly referred to as drones, are "aircraft" subject to federal regulation.

In remanding the case to an administrative law judge for further proceedings, the NTSB sidestepped all other issues, including First Amendment considerations.

The NTSB decision came in the case Huerta v. Pirker, in which photographer Raphael Pirker challenged a $10,000 fine levied against him for flying a camera-equipped model aircraft around the University of Virginia. Mr. Pirker had successfully challenged this fine before the administrative law judge, who ruled that Pirker's Zephyr fixed-wing aircraft was a "model aircraft" and that models were not subject to general aviation regulations.

In its decision released earlier today, the full NTSB reversed the administrative law judge and held that the FAA could apply its generally applicable federal aviation regulations to small UAS because they fit within the regulations' broad definition of "aircraft." The regulations define aircraft as "a device that is used or intended to be used for flight in the air."

The NTSB, in sweeping deference to the FAA, said:

[T]he plain language of the statutory and regulatory definitions is clear: an "aircraft" is any device used for flight in the air ... . The [FAA] Administrator’s interpretation of this text – that it applies to respondent’s operation of his Zephyr to prohibit careless or reckless operations – is reasonable, given the broad language of the section. - See more at: http://www.hklaw.com/publications/NTSB-Says-Drones-Subject-to-Federal-Aviation-Regulations-11-18-2014/#sthash.QsQKxQKt.dpuf

The NTSB remanded the decision to the administrative law judge to review evidence and determine whether Pirker's October 2011 flights around the University of Virginia campus were "careless or reckless" under FAA regulations.

This decision applying the regulations to UAS, regardless of size, is troubling for businesses in the U.S. that hope to spur innovation through safe commercial use of the technology. It is also troubling to news media companies hoping to safely and legally gather news and information in the public interest.

The ruling further underscores the need for new, sensible regulations specifically applicable to small UAS. Proposed regulations are expected to be released for comment later this year.