The Federal Aviation Administration posted a win this week when the National Transportation Safety Board (NTSB) issued its decision reversing and remanding the decisional order issued by an administrative law judge (ALJ) in the case of Michael Huerta, Administrator, Federal Aviation Administration v. Raphael Pirker.


In July 2013, the FAA issued an order of assessment proposing a civil penalty in the amount of $10,000 against Mr. Pirker. The FAA alleged that Mr. Pirker violated 14 C.F.R §91.13, which prohibits operating an aircraft in a careless or reckless manner so as to endanger the life or property of another. Mr. Pirker allegedly operated a Ritewig Zephyr powered glider (a small unmanned aircraft that weighs less than 5 pounds) over the University of Virginia, Charlottesville campus. The FAA alleged several instances of reckless operation including operation at extremely low altitudes, through a tunnel that contained moving vehicles, and under an elevated pedestrian walkway. Mr. Pirker appealed the order of assessment to an ALJ. The ALJ found that small unmanned aircraft was not and “aircraft” and that Part 91 of the Federal Aviation Regulations do not apply to small unmanned Aircraft.

In reversing the ALJ’s decision the NTSB found that both 49 U.S.C. § 40102(a)(6) and 14 C.F.R §1.1 are clear (albeit broad) that aircraft means any device used for flight, manned or unmanned. Additionally, the NTSB found that 14 C.F.R. § 91.13 prohibition applies to any “aircraft” other than those that are excluded by other parts of the Federal Aviation Regulations (parts 101 and 103 exclude unmanned free balloons, kites, rockets, and moored balloons and ultralights). With these findings the NTSB remanded the case back to an ALJ for a full factually hearing to determine whether Mr. Pirker operated his unmanned aircraft in a reckless manner.

Mr. Pirker can appeal the NTSB’s decision to federal court, but we will need to wait to see if that happens. In the meantime, the NTSB’s decision is a victory for the FAA but for everyone else that is trying to break into this emerging industry, this decision is not likely to be a game changer. Since the FAA has been advancing the position confirmed by the NTSB, in many ways the regulatory landscape for the operation of unmanned aircraft is relatively unchanged.

For additional information, please contact Amanda Tummons, David Agee, or Joe Orlet.