NTSB: UAS And Model Aircraft Are Aircraft

[jnmeade]

http://www.ntsb.gov/legal/pirker/5730.pdf

The NTSB has reversed the decision by Geraghty to vacate the FAA fine of Pirker in the U VA case.

NTSB discusses at length what constitutes an "aircraft" and determines as quoted below. This means don't fly your paper airplane at a NFL football game.

"C. Conclusion
This case calls upon us to ascertain a clear, reasonable definition of “aircraft” for
purposes of the prohibition on careless and reckless operation in 14 C.F.R. § 91.13(a). We must
look no further than the clear, unambiguous plain language of 49 U.S.C. § 40102(a)(6) and 14
C.F.R. § 1.1: an “aircraft” is any “device” “used for flight in the air.” This definition includes
any aircraft, manned or unmanned, large or small. The prohibition on careless and reckless
operation in § 91.13(a) applies with respect to the operation of any “aircraft” other than those
subject to parts 101 and 103. We therefore remand to the law judge for a full factual hearing to
determine whether respondent operated the aircraft “in a careless or reckless manner so as to
endanger the life or property of another,” contrary to § 91.13(a)."

 

[steingar]

This means don't fly your paper airplane at a NFL football game.

Better had not. Those things could put someone's eye out.

 

[docmirror]

That's bullspit. After-the-fact rule re-interpretation. Sounds like something you would find in Panama, or maybe Namibia. What a joke.

I strategically balled up a large piece of paper and flew it to the trash can. It was under 254Lbs empty, so I'm going to log that as UL flight in my logbook as I was the operator.

Stupid, stupid, stupid. I guess one of those 'depends on the meaning of 'is' is' things.

 

[ClimbnSink]

Did I read that right, I'm exempt from 91.13 flying an ultralight, but not if I toss a football? Yeah BananaMurica.

 

[Matthew]

Better had not. Those things could put someone's eye out.

Yeah - they'll result in letters that get passed around for decades:

http://deadspin.com/5716038/the-greatest-letter-ever-printed-on-nfl-team-letterhead

 

[docmirror]

They tossed into the 'careless and reckless' catch-all which is a double example of 'hey what the fluck do we do with this? We want to prohibit it, but we really have no way. I know, we will re-interpret a rule, then toss it in the giant bin of careless and reckless'.

I hope the guy litigates it to the end, and I hope he does it with a bench trial. Prolly won't happen, shyte.

 

[wsuffa]

Regulatory law can sometimes be like "Double Secret Probation".

 

[Henning]

Did I read that right, I'm exempt from 91.13 flying an ultralight, but not if I toss a football? Yeah BananaMurica.

No, you did not read that right. You are exempt, as an aircraft being operated privately, from Pt 91.13 while flying an Ultralight because you do not operate under Pt. 91, you operate under Pt 103, which contains the same language.

With a football you are liable for your actions under other laws, a football does not enter into this equation as it does not count as an aircraft, it does not fly, it follows a simple ballistic trajectory.

They tossed into the 'careless and reckless' catch-all which is a double example of 'hey what the fluck do we do with this? We want to prohibit it, but we really have no way. I know, we will re-interpret a rule, then toss it in the giant bin of careless and reckless'.

I hope the guy litigates it to the end, and I hope he does it with a bench trial. Prolly won't happen, shyte.

It's not the "Careless and Reckless" part that is the issue, the issue is setting jurisdiction with regard to dealing with the careless and reckless operation of these remote vehicles and the inevitable conflicts and consequences there of.

By defining these as 'Aircraft, the NTSB has squarely placed this burden in the FAA's domain, rightly so may I add. Now if you look at how the rules are structured, any flight of an aircraft that takes place for personal reasons takes place under PT.91 unless covered by another section. The person who is in control of that flight is the operator and pilot. In the past RC aircraft operated under an exemption that had altitude and sight restrictions. These were relatively difficult to operate, and the operators mostly aware of their restrictions and obeyed them so there was no real reason to ever bring this issue to bear.

The current market trend of the highly capable multi rotor platforms proliferating at the current rate with operators having little or now knowledge of the rules and restrictions though is growing extremely rapidly. These craft are very easy to operate very well, and in the hands of an irresponsible person can create the same fatal consequences as could a C-150, some of these things are heavy and powerful with titanium rotors.

This is part of the process of society coming to terms with a new technology.

 

[SkyHog]

No, you did not read that right. You are exempt, as an aircraft being operated privately, from Pt 91.13 while flying an Ultralight because you do not operate under Pt. 91, you operate under Pt 103, which contains the same language.

With a football you are liable for your actions under other laws, a football does not enter into this equation as it does not count as an aircraft, it does not fly, it follows a simple ballistic trajectory.



It's not the "Careless and Reckless" part that is the issue, the issue is setting jurisdiction with regard to dealing with the careless and reckless operation of these remote vehicles and the inevitable conflicts and consequences there of.

By defining these as 'Aircraft, the NTSB has squarely placed this burden in the FAA's domain, rightly so may I add. Now if you look at how the rules are structured, any flight of an aircraft that takes place for personal reasons takes place under PT.91 unless covered by another section. The person who is in control of that flight is the operator and pilot. In the past RC aircraft operated under an exemption that had altitude and sight restrictions. These were relatively difficult to operate, and the operators mostly aware of their restrictions and obeyed them so there was no real reason to ever bring this issue to bear.

The current market trend of the highly capable multi rotor platforms proliferating at the current rate with operators having little or now knowledge of the rules and restrictions though is growing extremely rapidly. These craft are very easy to operate very well, and in the hands of an irresponsible person can create the same fatal consequences as could a C-150, some of these things are heavy and powerful with titanium rotors.

This is part of the process of society coming to terms with a new technology.

Yeah, man. Government oversight fixes everything!

 

[Silvaire]

These regulations are not coming because someone in a cubicle somewhere is just dying to hamstring UAV operators. They are coming because of stuff like this where some guys GoPro toting Quadcopter takes off on it's own, with nobody in control and flys around at 3,000 feet.

I know that it's being said that commercial UAV use is being permitted and developed in many other countries and that they are getting the upper hand but this is America. I can sit out on my back porch on any given afternoon and see a dozen or more private aircraft transit directly over my property between 1,000 and 5,000 feet. Compare this to most of these "other" countries where you could sit out there all week and NEVER see a private aircraft fly over.

On top of that, what is a GoPro (with attached Quadcopter) going to do to someone if dropped on them from 3,000 feet? This is what would have happened to this thing if the batteries had died before it decided to come back home.

These regulations are coming because they are going to be needed, at least here in the US where there are actually people up there flying around. It's only a matter of time before someone hits one of these things.

 

[Henning]

Yeah, man. Government oversight fixes everything!

Well, that's just it, people act irresponsibly as individuals as is evidenced by this case. Do we as a society just allow irresponsible individuals to endanger us? I personally wouldn't be particularly fond of being hit by some of these more capable rigs, even the not so sophisticated one can still injure, maim, and kill, so how should we deal with it? How should we deal with irresponsible behavior in general? There are basically only two options, the 'natural' method, when you create a loss, the person sustaining the loss exacts their toll, whatever that may be.

Or you can have the 'man made' system where a governing authority acts evenly across the entire society.

 

[MauleSkinner]

Yeah, man. Government oversight fixes everything!

I doubt that anyone here actually believes that any more than you do, but government oversight is a fact of life, and having this clearly defined makes it easier to be legal going forward. While I'd much prefer to not have to deal with government oversight myself, given that everyone in the country doesn't have identical moral & ethical values, a documented regulatory environment is necessary.

 

[JeffDG]

That's bullspit. After-the-fact rule re-interpretation. Sounds like something you would find in Panama, or maybe Namibia. What a joke.

OK...here's the actual law, you tell me what it means then:
http://www.law.cornell.edu/uscode/text/49/40102
(6) “aircraft” means any contrivance invented, used, or designed to navigate, or fly in, the air.

What about UASs does not meet that definition? Twisting that rather clear definition into a pretzel is why there's a problem. The NTSB seems to have simply read the words as written.

 

[Jim Logajan]

By statute the FAA only has authority over navigable airspace. I've posted before on what the Supreme Court found this to be - pretty much coincides with the distance aircraft are supposed to stay from populated areas (500 ft alt. seemed to be the common number.) It doesn't matter what the definition of aircraft is, if the FAA has, by its own regulations and definitions, limited its scope.

If there were no limits on the FAA's authority then they could claim jurisdiction over flying UAVs in your living room -even if your mom said it was OK.

 

[MauleSkinner]

By statute the FAA only has authority over navigable airspace. I've posted before on what the Supreme Court found this to be - pretty much coincides with the distance aircraft are supposed to stay from populated areas (500 ft alt. seemed to be the common number.) It doesn't matter what the definition of aircraft is, if the FAA has, by its own regulations and definitions, limited its scope.

If there were no limits on the FAA's authority then they could claim jurisdiction over flying UAVs in your living room -even if your mom said it was OK.

So you're saying that buzzing isn't illegal, because the FAA doesn't have jurisdiction over the airspace?

 

[Matthew]

By statute the FAA only has authority over navigable airspace. I've posted before on what the Supreme Court found this to be - pretty much coincides with the distance aircraft are supposed to stay from populated areas (500 ft alt. seemed to be the common number.) It doesn't matter what the definition of aircraft is, if the FAA has, by its own regulations and definitions, limited its scope.

If there were no limits on the FAA's authority then they could claim jurisdiction over flying UAVs in your living room -even if your mom said it was OK.

Doesn't B/C/D/E/G go to the surface? I know G is uncontrolled, but still falls under FAA purview, doesn't it?

(Don't know about living room airspace.)

What's considered "navigable"? Your post mentioned 500ft, but that could still be controlled airspace?

 

[Jim Logajan]

http://www.ntsb.gov/legal/pirker/5730.pdf

The NTSB has reversed the decision by Geraghty to vacate the FAA fine of Pirker in the U VA case.

NTSB discusses at length what constitutes an "aircraft" and determines as quoted below. This means don't fly your paper airplane at a NFL football game.

It means more than that - it means that all of Title 49 statute applies to any and everything that you make that is intended to fly in the air. They must get an N number, even for your lowly paper airplane.

 

[Jim Logajan]

So you're saying that buzzing isn't illegal, because the FAA doesn't have jurisdiction over the airspace?

If you can manage to stay within the bounds of your property and never exceed 500 ft, then why should it be any more illegal than, or a hazard to the public, for example, to race private vehicles on private property?

Doesn't B/C/D/E/G go to the surface? I know G is uncontrolled, but still falls under FAA purview, doesn't it?

(Don't know about living room airspace.)

What's considered "navigable"? Your post mentioned 500ft, but that could still be controlled airspace?

I'll need to locate the post I made that had all the appropriate court references and post a followup on that. Title 49 does not define classes of airspace, that is a regulatory invention of the FAA, so it would be a mistake to think in terms of those. Title 49 defines the scope of the FAA's authority and contains the pertinent definition of navigable airspace. Title 49 says the Federal government, not local governments, shall have authority over all airspace. It then says that authority over navigable airspace shall be delegated to the FAA.

The FAA can and does have the authority to deny access to navigable airspace, so it could act against someone who entered and then exited that airspace in a manner not approved because it is considered unsafe (i.e. dropping below 500 ft to buzz something.) But if you were just moving about your own yard on your hovercraft, never flying more than a foot off the ground, the FAA would not seem to have any case to claim you were a hazard to aircraft in navigable airspace, don't you think?

 

[ClimbnSink]

Any limits on the gov't reach are imaginary. And exist because they haven't bothered to bust on you. If the FAA decided your backyard hovercraft was a hazard the courts would back them. It is not limits on power that grant freedom. It is that those in power don't care at the moment, don't know, or best case are too incompetent to get anything done.

 

[docmirror]

What I find hilarious in this decision that the judges find that a small drone is an "aircraft" IAW the definition that the FAA has used which is very broad. But, then in later sections they declaim that a manned ultralight is NOT an aircraft because it is bound by part 103 which is separate from part 91, and it's defined as an "ultralight vehicle".

Despicable how torturous the rulemakers have to bend a regulation to get a guy. I really hope he takes it in front of a bench for a trial. I don't think a judge is going to like all the exceptions, exclusions, and interpretations needed to find that this thing is an aircraft. Particularly when the first go around, they decided it was NOT an aircraft. What complete crap.

 

[JeffDG]

What I find hilarious in this decision that the judges find that a small drone is an "aircraft" IAW the definition that the FAA has used which is very broad. But, then in later sections they declaim that a manned ultralight is NOT an aircraft because it is bound by part 103 which is separate from part 91, and it's defined as an "ultralight vehicle".

Despicable how torturous the rulemakers have to bend a regulation to get a guy. I really hope he takes it in front of a bench for a trial. I don't think a judge is going to like all the exceptions, exclusions, and interpretations needed to find that this thing is an aircraft. Particularly when the first go around, they decided it was NOT an aircraft. What complete crap.

Based solely on the statutory definition above, how is it NOT an aircraft? You're the one bending a pretty clear definition into a pretzel to get your favoured result.

 

[Henning]

What I find hilarious in this decision that the judges find that a small drone is an "aircraft" IAW the definition that the FAA has used which is very broad. But, then in later sections they declaim that a manned ultralight is NOT an aircraft because it is bound by part 103 which is separate from part 91, and it's defined as an "ultralight vehicle".

Despicable how torturous the rulemakers have to bend a regulation to get a guy. I really hope he takes it in front of a bench for a trial. I don't think a judge is going to like all the exceptions, exclusions, and interpretations needed to find that this thing is an aircraft. Particularly when the first go around, they decided it was NOT an aircraft. What complete crap.

Crap or not, the judge will have no problem with it because this is no different from any other treatment of the law. This is how it works. You don't find many judges at this level looking to overthrow the legal process.

 

[Jim Logajan]

I'll need to locate the post I made that had all the appropriate court references and post a followup on that.

The post in question with references to limits of navigable airspace:

http://www.pilotsofamerica.com/forum/showpost.php?p=1378618&postcount=48

And a post referencing what I believe are the appropriate portions of Title 49 and the FAA regulations:

http://www.pilotsofamerica.com/forum/showpost.php?p=1377396&postcount=40

My own opinion based on the principles outlined by the courts was that, since the courts had found that owners of land have an unfettered access to the superadjacent non-navigable airspace, they should be compensated when anyone impedes their access and use of that airspace, and therefore based on the fate of similar regulations, any regulations prohibiting flying of aircraft in such space would be the taking of private property without compensation. This is not allowed by the constitution.

 

[ClimbnSink]

Based solely on the statutory definition above, how is it NOT an aircraft? You're the one bending a pretty clear definition into a pretzel to get your favoured result.

Based on that definition how the heck are ultralights not aircraft? If they threw ultralights into the fire as well they would have more intellectual honesty.

 

[MauleSkinner]

The post in question with references to limits of navigable airspace:

http://www.pilotsofamerica.com/forum/showpost.php?p=1378618&postcount=48

And a post referencing what I believe are the appropriate portions of Title 49 and the FAA regulations:

http://www.pilotsofamerica.com/forum/showpost.php?p=1377396&postcount=40

My own opinion based on the principles outlined by the courts was that, since the courts had found that owners of land have an unfettered access to the superadjacent non-navigable airspace, they should be compensated when anyone impedes their access and use of that airspace, and therefore based on the fate of similar regulations, any regulations prohibiting flying of aircraft in such space would be the taking of private property without compensation. This is not allowed by the constitution.

But who has jurisdiction over the aircraft that impedes the landowner's access and use of airspace? The FAA.

 

[Henning]

Based on that definition how the heck are ultralights not aircraft? If they threw ultralights into the fire as well they would have more intellectual honesty.

Because they have their own definition under Pt 103, they are a separately regulated entity, and all these rules are created to apply specifically to them. It's not like Pt 103 does not have Careless and Reckless prohibition wording. There is no other regulatory entity for it to fall into, so it falls back to the most basic set of rules, Pt 91. If UAVS and RCs fell under Pt 103, they would be even more restricted.

As for airspace, the example in the OP was talking about climbing to 1500', this puts it clearly into the FAA's airspace, and then he was diving it at people, which is highly irresponsible and against all the rules from anyone.

 

[Jim Logajan]

But who has jurisdiction over the aircraft that impedes the landowner's access and use of airspace? The FAA.

Title 49 states "The 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." "Navigable airspace" ... "means airspace above the minimum altitudes of flight prescribed by regulations under this subpart and subpart III of this part, including airspace needed to ensure safety in the takeoff and landing of aircraft."

Depending on the nature of the incursion, such aircraft in non-navigable airspace would be engaging in either civil or criminal trespass and it would be up to the owner to seek redress in the courts or seek police help.

 

[Henning]

Title 49 states "The 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." "Navigable airspace" ... "means airspace above the minimum altitudes of flight prescribed by regulations under this subpart and subpart III of this part, including airspace needed to ensure safety in the takeoff and landing of aircraft."

Depending on the nature of the incursion, such aircraft in non-navigable airspace would be engaging in either civil or criminal trespass and it would be up to the owner to seek redress in the courts or seek police help.

I don't see where that takes the unnavigable airspace out of the FAA's complete jurisdiction, just that where it is navigable, the FAA must meet those burdens. Just because the FAA doesn't need to meet those burdens outside navigable airspace does not impeded them from being assigned other burdens like dealing with irresponsible people operating new airborn technology.

We have out populated our ability to have hazardous fun without considering who else we may injure in the process. Unless you live out in the country, population densities are such that it just isn't viable anymore.

 

[Jim Logajan]

I don't see where that takes the unnavigable airspace out of the FAA's complete jurisdiction, just that where it is navigable, the FAA must meet those burdens. Just because the FAA doesn't need to meet those burdens outside navigable airspace does not impeded them from being assigned other burdens like dealing with irresponsible people operating new airborn technology.

I think my read of the law is reasonable - it does depend on an appropriate case (i.e. not the case in the OP) and what arguments the court is presented with. The courts can be pretty good about setting hard limits on the jurisdiction of an agency. For example, recently the Supreme Court ruled the EPA had overstepped the authority delegated to it when it attempted to include vehicle green house emissions under the laws written for fixed sources. As in the case of the OP, the courts are pretty literal when interpreting unambiguous statutes.

We have out populated our ability to have hazardous fun without considering who else we may injure in the process. Unless you live out in the country, population densities are such that it just isn't viable anymore.

That's interesting, but "hazardous fun" is already covered by non-FAA laws. If the guy had driven a RC car (instead of flying a UAV) all over the place (say in a public park, or maybe on someone else's property) that caused people to dive out of its way, among other dangerous stunts, what laws do you think would apply? You think just the local DMV would or should be involved? You think no other local laws would cover such situations?

 

[Henning]

The difference here is that the NTSB just had the courts put it into the hands of the FAA in the interest of public safety citing a case where demonstrable and egregious violations of safety endangered a crowd of people at a public event.

In the face of developing technology, liberty always loses to public safety as soon as the technology is adopted by idiots.

The law is changing to keep up with technology and social demand. The law is evolving, technology is evolving, the only thing in this picture that isn't evolving to meet requirements is people. We are the weak link.

 

[Jim Logajan]

The difference here is that the NTSB just had the courts put it into the hands of the FAA in the interest of public safety citing a case where demonstrable and egregious violations of safety endangered a crowd of people at a public event.

Not what I read in the case; they remanded due to the use of the word "aircraft," not over careless or reckless. The defendant didn't attempt any argument on the issue of airspace jurisdiction; but the courts would have to consider such an argument if it is ever presented.

 

[mcmanigle]

Not what I read in the case; they remanded due to the use of the word "aircraft," not over careless or reckless. The defendant didn't attempt any argument on the issue of airspace jurisdiction; but the courts would have to consider such an argument if it is ever presented.

Yes, legally what happened in the loosest terms is:

1. The FAA said to Pirker, "You were operating an aircraft recklessly. Pay up $10,000."

2. Pirker said, "That's ridiculous; I'm appealing to an administrative law judge."

3. The administrative law judge said, "Okay, both of you tell me why you think this is or is not reckless operation of an aircraft."

4. Pirker said, "Hold on, before we go any further, let's just stop this whole thing because my drone isn't even an aircraft, so the reg wouldn't apply no matter what the facts were."

5. The administrative law judge said, "Oh, good point. Case closed."

6. The FAA appealed to the NSTB.

7. The NTSB said "Actually, an aircraft is just a device used to fly through the air. Looks like you're not getting off on that technicality. You both have to present your arguments to the administrative law judge after all."

8. The administrative law judge said, "Sigh." Kind of like Doc Bruce loves to. So now we're back to step 3.


The point is, any and all arguments (aside from "this is not an aircraft") are still up for grabs. Possible ones include "this wasn't careless and reckless operation," or "it wasn't in navigable airspace so the rule doesn't apply," etc. Who knows which way the actual ruling will go? I don't. But the "a drone is not a device used to fly" was thrown out (despite some pretty clever-or-silly-depending-on-how-you-look-at-them arguments that "used to fly" implies that a person is using it to fly, as opposed to it just flying around on its own).

 

[Jim Logajan]

Not what I read in the case; they remanded due to the use of the word "aircraft," not over careless or reckless. The defendant didn't attempt any argument on the issue of airspace jurisdiction; but the courts would have to consider such an argument if it is ever presented.

Well it looks like my argument re navigable airspace, including the Causby case, had already been worked out and argued by Pirker's attorney, Brendan Schulman of the Kramer Levin law firm:

http://www.kramerlevin.com/files/upload/PirkerReply.pdf
http://www.paas2014.com/Brendan_Schulman.pdf

Since the ALJ never got past the consideration of whether a UAV is an aircraft, none of the other arguments appear to have been considered the first time through. I imagine they will now.

 

[Henning]

What I find is funny is that people are supporting the right of the guy to be able to injure people and saying boo hiss here when the punishment is a fine, yet when someone similar gets 14yrs in prison for shining lasers at airplanes, we cheer that.

 

[Jim Logajan]

What I find is funny is that people are supporting the right of the guy to be able to injure people and saying boo hiss here when the punishment is a fine, yet when someone similar gets 14yrs in prison for shining lasers at airplanes, we cheer that.

Where do you see posts supporting the right to injure other people?

Do you consider any of my posts in that category?

 

[Henning]

Where do you see posts supporting the right to injure other people?

Do you consider any of my posts in that category?

I don't recall any of your posts specifically, but it is the reality of supporting the guy against being prosecuted.

 

[Jim Logajan]

I don't recall any of your posts specifically, but it is the reality of supporting the guy against being prosecuted.

I see. I don't know how to put this diplomatically, but it is clear to me you misunderstand the issue, which is about scope of authority and the FAA's over-reach.

 

[brian]]

That's the problem with idiots and the reason we can't have nice things... I would say that we will have to have some faith in the justice system - but there are idiots over there as well.

Henning has it pinned: new tech and the clumsy laws have to adapt (same with the Internet right now).

But the number of idiots with enough $$s to buy a $2K "thingy" is huge. Once the brown box comes in, they grab a beer and go have fun. Gota do something more than say "oops" when they cause problems ...

 

[Henning]

I see. I don't know how to put this diplomatically, but it is clear to me you misunderstand the issue, which is about scope of authority and the FAA's over-reach.

You misunderstand the issue, this about assigning the regulatory authority for a new and popular way for stupid people to hurt other people, an activity which we have tasked the government with controlling in general. So, the question becomes, "Who is assigned that responsibility?" Obviously someone called in the FAA, because I seriously doubt that it was someone from the FAA that took the initiative policing this guy. The originating authority couldn't see where they had jurisdiction since everything flying and related to flying is under the jurisdiction of the FAA, so they took it and applied the rules they saw fit, which appropriately enough was Careless and Reckless operation considering his altitude/airspace incursion and erratic operation within a proximity of people is such a way to threaten their safety. Since this is a recently developed phenomenon and law is reactive to action, there was no relevant finding in law that supported the craft being an "aircraft". The judge kicked it back to the governing authority, in this case the NTSB court, to get a ruling in law that establishes or denies the FAA's jurisdiction which they settled in a finding that the FAA does indeed have jurisdiction. Now the matter is back in the judges hands with that matter of law clarified.

The FAA has not been "reaching" the FAA is being shuffled around in a pawn while trying to fulfill its previously assigned roll, to keep things in the air operating safely. Every action by a government agency is not a power or money grab, sometimes they are just doing their job like they're supposed to.

 

[EdFred]

So if model aircraft and UAV's are aircraft, do operators need to be certified under 61 or 141?

No pilot may operate/act as PIC...