On March 6, a Denver-based National Transportation Safety Board (NTSB) administrative law judge granted a motion to dismiss a Federal Aviation Administration (FAA) order assessing a fine on an individual for allegedly operating a commercial drone in an unsafe manner.1 The holding may ultimately require the FAA to issue a new rule if the agency intends to regulate the use of drones and model aircraft for commercial purposes.

In the Pirker case, the respondent moved to dismiss on grounds that the Federal Aviation Regulations, which provide that “[n]o person may operate an aircraft in a careless of reckless manner so as to endanger the life or property of another,”2 do not apply to commercial model aircraft flight operations. Mr. Pirker asserted that, because the FAA has never published an applicable regulation using the required notice and public comment procedures, there was no rule violation to support the FAA’s assessment of a fine. The FAA countered that the statutory definition of “aircraft” incorporates within its scope any device intended for flight,3 model aircraft included, and that the respondent was therefore subject to all FAA regulations. Further, the FAA asserted that operators of commercial drones are subject to a number of FAA policy statements that govern model aircraft operations. Most notably, the FAA issued guidance in February 2007 stating that “operators who wish to fly an unmanned aircraft for civil use must obtain an FAA airworthiness certificate the same as any other type aircraft,”4 reversing course from the agency’s long-standing practice of permitting civil unmanned aircraft to operate without a certificate under the safety standards set forth in Advisory Circular (AC) 91-57.5

The administrative law judge held that Mr. Pirker was correct: at the time of the flight in question, there was no enforceable FAA rule applicable to model aircraft under which the FAA could assess the fine. Under the judge’s reasoning, because the agency has historically distinguished unmanned commercial devices from other “aircraft” by modifying that term with the pre-fix “model,” the FAA regulations at issue did not apply to model aircraft. Otherwise, the FAA’s expanded definition of “aircraft” would lead to the unintended consequence “that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider” could be subject to a host of other rules, including airworthiness and registration requirements. In addition, the FAA’s policy statements were found to be non-binding on commercial model aircraft operators because the agency issued the statements as internal agency guidance and never subjected the policies to the notice and comment process required of public rulemaking.

Further, the decision held that, to the extent that AC 91-57 applied to commercial model aircraft operators, the circular was not binding because it employed language that merely encourages voluntary compliance. In any event, the FAA’s reliance on AC 91-57 in Mr. Pirker’s case seemed grounded from the outset, given that agency guidance published earlier this year noted that the FAA clarified in 2007 that AC 91-57 “specifically excludes individuals or companies flying model aircraft for business purposes.”6

The Pirker decision is currently in a holding pattern, as the FAA has announced that it will appeal to the full NTSB.7 Unless successful in that appeal, however, the agency will likely need to draft and issue a new rule, subject to public comments, if it wishes to regulate the operation of commercial model aircraft. Commercial entities with an interest in operating drones or model aircraft for business purposes should keep an eye out for the FAA’s next maneuver. We will continue to cross-check the situation and provide relevant guidance