March 7, 2014 Update: WASHINGTON, D.C.–The Federal Aviation Administration today issued a notice appealing a decision by an NTSB Administrative Law Judge in the civil penalty case, Huerta v. Pirker. “The FAA is appealing the decision of an NTSB Administrative Law Judge to the full National Transportation Safety Board, which has the effect of staying the decision until the Board rules. The agency is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.”
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On March 6, 2014, Federal Judge Patrick Geraghty dismissed a case the Federal Aviation Administration (FAA) brought against Raphael Pirker, accusing Pirker of illegally using a drone to make a video of the University of Virginia. The FAA attempted to levy a fine of $10,000 against Pirker, described in an article published in Geospatial Solutions in December 2013.
Brendan Schulman, Pirker’s attorney, told Geospatial Solutions, “The FAA’s position on this is based on a policy statement, not an enforceable regulation.”
Judge Geraghty agreed, stating the following in his finding (download the PDF):
1. Neither the Part 1, Section 1.1, or the 49 U.S.C. Section 40102(a)(6) definitions of “aircraft” are applicable to, or include a model aircraft within their respective definition.
2. Model aircraft operation by Respondent was subject only to the FAA’s requested voluntary compliance with the Safety Guidelines stated in AC 91-57.
3. As Policy Notices 05-01 and 08-01 were issued and intended for internal guidance for FAA personnel, they are not a jurisdictional basis for asserting Part 91 FAR enforcement authority on model aircraft operations.
4. Policy Notice 07-01 does not establish a jurisdictional basis for asserting Part 91, Section 91.13(a) enforcement to Respondent’s model aircraft operation, as the Notice is either (a) as it states, a Policy Notice/Statement and hence non-binding, or (b) an invalid attempt of legislative rulemaking, which fails for non-compliance with the requirement of 5 U.S.C. Section 533, Rulemaking.
5. Specifically, that at the time of Respondent’s model aircraft operation, as alleged herein, there was no enforceable FAA rule or FAR Regulation applicable to model aircraft or for classifying model aircraft as an UAS.
Upon the findings and conclusions reached, I hold that Respondent’s Motion to Dismiss must be AFFIRMED.
IT IS ORDERED THAT:
1. Respondent’s Motion to Dismiss be, and hereby is: GRANTED
2. Complainant’s Order of Assessment be, and hereby is: VACATED AND SET ASIDE
3. This proceeding be, and is: TERMINATED WITH PREJUDICE.
ENTERED this 6th day of March, 2014, at Denver, Colorado.
Patrick G. Geraghty
Judge
