Administrative Procedure Act, Drones, FAA, Federal Aviation Administration, Federal Aviation Regulations, Kramer Levin Naftalis & Frankel, National Transportation Safety Board, New York, Raphael Pirker aka “Trappy”, Team Black Sheep, Trappy vs FAA, University of Virginia, Unmanned aerial vehicle
This is interesting. The man that many have claimed is going to bring an end to drone hobbyist may in fact be the one that made it legal to do commercially.
Law360, New York (October 03, 2013, 2:05 PM ET) — A model airplane operator facing fines from the Federal Aviation Administration for allegedly buzzing Virginia buildings and pedestrians at dangerously low heights to snap photos has asked an administrative judge for exoneration, saying the FAA lacks authority to penalize civilian drone pilots.
Raphael Pirker argued to a National Transportation Safety Board judge that the FAA contrived a case against him for allegedly flying his model aircraft at dangerously low heights around the University of Virginia in response to political pressure over its failure to regulate commercial unmanned aircraft systems.
So-called civilian drones have earned the scorn of civil libertarians for their purported privacy infringements and potential for abuse by law enforcement, and the FAA responded with an “impermissible effort” to expand its Federal Aviation Rules to a 5-pound plastic foam device, according to Pirker’s motion to dismiss.
“The FAA, aware of this change in public perception, has made an effort to delay and curtail civilian ‘drone’ activity by asserting in policy statements that ‘business’ or ‘commercial’ operations are prohibited and that some or all of the (Federal Aviation Regulations) FARs apply,” the motion said. “However, neither the commercial ‘ban’ on drones nor the application of the FARs … is legally enforceable because the FAA has failed to undertake the requisite rulemaking procedures that would be required to put in place such new regulation.”
The motion says there is no existing federal aviation regulation restricting the operation of model aircraft, and that small unmanned aircraft have historically been governed by “voluntary safety guidelines,” with plane operators being kept in check only by state tort laws holding reckless flying activities to account.
Pirker, a Swiss citizen residing overseas, was hit with a $10,000 proposed fine by the FAA in June for allegedly piloting a small gliding aircraft at low heights around the university’s campus to take aerial shots for an advertising agency. According to the complaint, he did not have FAA piloting certification, and flew as low as 10 feet above ground near buildings and pedestrian walkways.
The FAA claimed that the flights violated a single provision of the FARs stating that “that no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another,” the suit said.
The suit was the first-ever enforcement action against an unmanned aircraft system operator, according to Pirker’s attorney Brendan M. Schulman of Kramer Levin Naftalis & Frankel LLP.
In his response, Pirker contended that the FAA has failed to move forward with steps to promulgate new regulations to integrate civil unmanned aircraft safely into the national aerospace system despite a congressional mandate to do so by 2015 in the FAA Modernization and Reform Act of 2012.
Drones vs. Government: Who Owns America’s Skies?
“This inability by the agency to move forward with new proposed regulations in a timely manner accounts for why the FAA has resorted to delay tactics such as cease-and-desist letters and, here, the unprecedented pursuit of a civil penalty against a model airplane operator,” the motion said. “But it has done so by issuing ‘policy statements,’ not by valid rulemaking.”
Instead, the FAA is purportedly relying on a 2007 policy statement articulating two new rules outlawing model aircraft operation for business purposes without a waiver or special airworthiness certificate and subjecting operators to the FARs.
The policy statement formed the basis for the instant complaint, according to Pirker’s motion, but is unenforceable under the Administrative Procedure Act because the FAA never complied with the notice-and-comment requirements for publicly binding rulemakings.
The 2007 statement, which was touted as a de facto ban on commercial drones, could plausibly be viewed as an “interpretative rule” exempt from APA requirements, but in that case its extension of FARs to model aircraft is invalid because such an interpretation conflicts with existing laws and long-standing agency practice, the motion said.
The 1st FAA Prosecution of a Civilian Drone UAV
Schulman told Law360 that the FAA’s approach of sending cease-and-desist letters to drone operators has put the country’s nascent commercial drone industries on hold for over six years and kept beneficial, safe and noncontroversial applications from being developed.
FAA efforts to accommodate drone use took a step forward when the agency approved the first two such aircraft for commercial use. Bills have also been floated in both houses of Congress addressing concerns that current privacy laws do not adequately protect the public against drones’ surveillance capabilities.
Pirker is represented by Brendan M. Schulman of Kramer Levin Naftalis & Frankel LLP.
The case is Administrator v. Raphael Pirker, Docket No. CP-217, before the National Transportation Safety Board.
The FAA’s response to Trappy
5 November 2013
Discussion with Raphael Pirker (aka Trappy) and his counsel Brendan Schulman. Among the topics will be, the motion to dismiss the fine and other general questions about the case and the road ahead.
For the .PDF click here FAA_Response
UNITED STATES OF AMERICA
NATIONAL TRANSPORTATION SAFETY BOARD
MICHAEL P. HUERTA, Administrator
Federal Aviation Administration
Complainant, v. RAPHAEL PIRKER )
ADMINISTRATOR’S RESPONSE TO RESPONDENT’S MOTION TO DISMISS .
The Administrator, of the Federal Aviation Administration pursuant to 49 C.F.R.. § 821.1.7 of the Board’s Rules of Practice in Air Safety Proceedings files this response on opposition to
Respondent’s Motion to Dismiss. The Respondent makes the following assertions in his motion to dismiss:
1) there is no existing Federal Aviation Regulation governing the operation of model
2) the “public record” confirms that model aircraft operation is unregulated;
3) the FAA has expressly declined to regulate “model aircraft;”
4) the FAA lacks jurisdiction to regulate anything outside of the “navigable airspace;”
5) the FAA faces “pressure” due to the public’s concern about “drones;” and the Respondent goes to great length to characterize the aircraft he operated as just a “model.” Whether it is a “model” as Respondent uses the term or not, it is by both statutory and regulatory definition is an aircraft. 49 U.S.C. §40102(a)(6), 14 C.F.R. § 1.1. Specifically 49 U.S.C. §40102(a)(6) defines aircraft as: “any contrivance invented, used, or designed to navigate, or fly in, the air.” 14 C.F.R. § 1.1 defines aircraft as: “a device that is used or intended to be used for flight in the air.”
Docket No. CP217
6) the FAA’s policy statements concerning UAS operations are not binding or enforceable.
Each of Respondent’s assertions is either unfounded, irrelevant for purposes of a motion to dismiss the Complaint, or rely upon unsupported and contested questions of fact that require resolution at a hearing on the merits of the case.
The FAA unquestionably has authority to regulate aircraft in U.S. airspace. Consistent with that authority it long ago promulgated a regulation through notice and comment that prohibits the careless or reckless operation of aircraft in that airspace that could potentially endanger the life or property of another. The Respondent is alleged to have violated that single regulation, 14 C.F.R. § 91.13.
Respondent’s attempt at pages 1213 of its motion to characterize Congress’ direction to the
FAA to develop regulations specifically pertaining to UASs does not imply, as Respondent suggests that no regulations applicable to UASs currently exist. Indeed, section 91.13 clearly and without any ambiguity pertains to the operation of any aircraft by any person and prohibits careless or reckless operation that could potentially endanger the life or property of another. To the extent that Respondent is arguing that the Advisory Circular (AC) 9157 and the 2007 Notice of Policy on unmanned aircraft operations in the National airspace system are inconsistent with the Administrator’s position that section 91.13 pertains to the operation of all aircraft including UASs, that argument is flawed as a matter of law. It is clear from a plain reading of AC 9157 and the 2007 Notice that those policy statements addressed UASs as “aircraft” within both the statutory and regulatory definitions of “aircraft.”
To the extent that the Respondent is arguing that the information contained in the AC 9157
and the 2007 Notice supersede the operational requirements contained in 14 CFR part 91 regulations, it is clear that compliance with the regulations is mandatory, while the policies addressed in AC 9157 and the 2007 Notice are not mandatory. However, insofar as those policies reflect regulatory requirements, those requirements are manadatory. AC 9157 states “this advisory circular outlines, and encourages voluntary compliance with safety standards for model aircraft operators [set out in the AC].” The 2007 Notice sets forth policy to distinguish between different types of UAS operations. Neither policy contains a blanket exemption for any category of UAS that would permitsuch an aircraft to be operated in a careless or reckless manner contrary to the prohibition of section
91.13. Additionally, Respondent’s claim that the FAA’s 2007 UAS Policy Notice improperly
substituted for valid APA rulemaking is groundless and has nothing whatsoever to do with the issue that is pending before the Board in this case. Respondent appears to think that if he vigorously criticizes the FAA’s efforts to address UAS operations over time it will excuse that his operation as alleged in the Complaint was inherently careless or reckless. . . . :
Additionally, the Respondent makes a number of unsupported and contested factual allegations that, for purposes of a motion to dismiss, should disregard as they are issues that, if they are even relevant, can only be resolved by reviewing evidence that will be placed in the record. For example, Respondent asserts that UASs are used safely in the production of motion pictures and television shows and in competitions with reduced proximity to bystanders. See Resp’t’s Mot. at 6, 2426.
The Respondent also alleges that Mr. Pirker used spotters, coordinated with the hospital heliport, and took unspecified “other measures” to ensure the absence of other aircraft during the alleged flight. Id. at He makes these claims without affidavits or other admissible evidence of any kind to support what he is trying to argue. To the extent the Respondent is requesting the Board to consider these, and other, factual assertions, the Respondent’s motion is more properly characterized as one for summary judgment. See C.F.R. §821.17(d). As such, the law judge must view the evidence in the motion “in the light most favorable to the nonmoving party.” See, e.g.,
Administrator v. Gibbs, NTSB Order No. EA5638
(2012) (citing United States v. Diebold, Inc.,369 U.S. 654, 655 (1962)). As the Respondent has submitted no admissible evidence of any kind in support of his motion, when construing the facts in the light most favorable to the Administrator, the Complaint is legally sufficient and the Respondent’s motion to dismiss should be denied.
I. The Complaint is not deficient on its face.
In a motion to dismiss, the allegations of the Complaint must be accepted as true. See Cruz v.
Beto. 405 U.S. 319 (1972). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232 (1974), overruled on other grounds by Davis v. Scherer. 468 U.S. 183 (1984). A Complainant should be given the benefit of every reasonable inference to be drawn from the “wellpleaded” allegations of. the Complaint. See Retail Clerks Intern. Ass’n. Local 1625, AFLCIO v. Schermerhorn. 373 U.S. 746, 754 (1963); see also Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009).
The Complaint clearly references the single regulation allegedly violated, 14 C.F.R. § 91.13,
and places the Respondent on adequate notice of the conduct at issue. The Complaint
unambiguously states the time, location, and activities that contributed to the alleged violation. No evidence or documentation of any kind outside of the Complaint itself must be considered to fully grasp the nature or scope of the allegations.
Furthermore, the Respondent’s assertion that the FAA lacks jurisdiction over the operation of
aircraft below the “navigable airspace” is incorrect. See Resp’t’s Mot. at 10. 49 U.S.C.4 § 40103(b)(1) states that “[t]he Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” Id. (emphasis added). As the legislative history of the Federal Aviation Act of 1958 demonstrates, Congress proposed to “give the Administrator authority to regulate the use of all airspace over the United States by both civil and military aircraft. . . .” United States v. Christenson, 419 F.2d 1401, 1404 (9th Cir. 1969) (citing 1958 U.S. Code Cong. & Admin. News, p. 3745) (emphasis added). . Additionally, 49 U.S.C. § 40103(b)(2) states that the Administrator shall prescribe regulations on the flight of aircraft for “navigating, protecting, and identifying aircraft” and “protecting individuals on the ground.” Id. See also City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 63839(1973).
The Respondent accurately cites the definition of “navigable airspace;”, however, that definition does not in any way, explicitly or implicitly, define the outer limits of the FAA’s authority to regulate airspace. In sum, the FAA’s mandate to regulate the use of all airspace necessary to “ensure the safety” of aircraft, for “protecting, and identifying” those aircraft, and for “protecting individuals on the ground” is not confined solely to the “navigable airspace.”
II. Unmanned Aircraft Systems (UAS) are “aircraft” as defined in 14 C.F.R. § 1.1 and are subject to the FAA’s regulatory authority.
The FAA has broad authority to prescribe regulations and standards to establish “practices,
methods, and procedures the Administrator finds necessary for safety in air commerce and national security.” 49 U.S.C. § 44701(a)(5). In doing so, the Administrator seeks “to reduce or eliminate the possibility or recurrence of accidents in air transportation.” 49 U.S.C. § 44701(c).
The 2007 Notice of Policy clarified the FAA’s policy concerning the operation of unmanned
aircraft systems. See “Unmanned Aircraft Operations in the National Airspace System,” Docket No. FAA200625714, 72 Fed. Reg. 29 at 6689 (Feb. 13, 2007). Prior to the 2007 Notice, the only policy applicable to model aircraft was AC 9157.
However, the Respondent’s assertion that prior to the 2007 Notice the FAA abjured the authority to regulate UASs or model aircraft is inaccurate. As the 2007 Notice recognizes, there has been dramatic growth in the numbers and uses of UASs since the publication of AC 9157 in 1981. But, as already noted above neither of these documents set forth any exemption for UASs that would authorize careless or reckless operations contrary to section 91.13. Indeed the purpose of both policies on their face was to provide some additional guidance to UAS operators to assist them in operating UASs with safety in mind.
Respondent’s argument that the FAA faces “pressure” due to the public’s concern about
“drones” is also unavailing. See Resp’t’s Mot. at 1113. The Respondent seeks to characterize the aircraft at issue in the Complaint as one example of “devices that for decades have been referred to as a (sic) model airplanes or model helicopters [and which],are increasingly referred to as ‘drones.’” Id. at 11. Aside from being another factual assertion for which
Respondent submits no evidence, the Administrator has made no allegation in the Complaint that the aircraft used by the Respondent bears any relation to drones employed by the U.S. military in overseas military operations.
However, the assertion that the aircraft piloted by the Respondent in this case is akin to any type of lineofsight model airplane that was publicly available in 1981, the year the Advisory Circular was published, strains credulity. The sophisticated design and capabilities of Respondent’s aircraft were precisely what allowed him to pilot the aircraft in such a dangerous manner, well beyond his immediate lineofsight.
Only when an evidentiary record on this point is created at a hearing in this matter, will the Board will be able to decide if Respondent’s operation as alleged in the Complaint violated section 91.13.
The FAA has long had the authority to regulate “aircraft” as that term is defined in 14 CFR. §
1.1 and 49 USC §40102(a)(6). Notwithstanding Respondent’s assertion to the contrary, AC 9157 does not state that UASs in general, and model aircraft in particular, are “subject to non-regulation See Resp’t’s Mot. at 28. Respondent’s assertion that the Federal Aviation Regulations do not apply to UASs is groundless. He makes a convoluted argument that the prohibitions on interfering with crewmembers, somehow excludes UASs from the definition of “aircraft,” but that argument does not support his proposition. He seems to think that every regulation in part 91 must apply to UAS operations and if that is not so, then none do. But he overlooks that he must read the plain wording of each regulation to understand the scope of its applicability. For example, some regulations prohibit conduct by any person (like section 91.13), while others prohibit conduct by a pilot in 2 • • ‘ command. He cites no authority in support of his novel argument and he propounds no sound legal theory why section 91.13 does not apply to his operation as alleged in the Complaint.. In sum, every section of part 91 need not apply to UASs in order to make the prohibition on careless and reckless operations applicable to Respondent’s operation of a UAS. UASs are devices used “for flight in the air” and the prohibitions of section 91.13 clearly apply to such operations.
III. 14 C.F.R. § 91.13(a) applies to Unmanned Aircraft Systems (UAS). 14 C.F.R. § 91.13(a) states that “[n]o person may operate an aircraft in a careless or reckless
manner so as to endanger the life or property of another.” As UASs are “aircraft” pursuant to 14 C.F.R. § 1.1, their careless or reckless operation is prohibited. 14 C.F.R. § 91.1 states that “this part prescribes rules governing the operation of aircraft (other than moored balloons, kites, unmanned
Respondent at page 10 of his motion cites FAA Order 2150.3 B and suggests that the FAA is acting contrary to its policy in initiated this action against him because he is a Swiss citizen. FAA order 2150.3B provides general guidance only on how it intends to carry out its statutory and regulatory enforcement responsibilities. It does not act to limit the Administrator’s authority to take any enforcement action when he finds it is in the interest of safety. rockets, and unmanned free balloons, which are governed by part 101 of this chapter, and ultralight vehicles operated inaccordance with part 103 of this chapter ) within the United States .
The fact that “unmanned rockets” and “kites,” among others, are addressed in specific sections of the FARs does not imply that UASs are thereby removed from the definition of “aircraft.”
Respondent’s assertion that UASs should be given specific treatment in the FARs does not result in the conclusion he suggests that they are not “aircraft” as the term is used in the FAA’s regulations.
In fact, the express exclusion of “moored balloons, kites, unmanned rockets, and unmanned free balloons” from Subpart A demonstrates that these devices are also “aircraft” as defined in 14 C.F.R.
Both a plain reading of the definition of “aircraft” and the specific treatment of certain types of aircraft in the regulations indicate that a broad application of the regulations to devices used for flight in the air was intended. Nothing in AC 9157 or in the 2007 Notice demonstrates that FAA policy excluded UASs from the definition of “aircraft” such that their careless or reckless operation is permissible.
WHEREFORE, for the reasons stated above, the Administrator respectfully requests that
Respondent’s Motion to Dismiss be denied.
Alfred R. Johnson, Jr.
- Full details of FAA’s six drone test sites chosen (bizjournals.com)
- Drone enthusiasts, FAA on legal collision course (sfgate.com)
- Challenges The FAA Faces With Unmanned Aircraft Systems (UAS) (lisaleaks.com)