NTSB Remands Pirker UAV Case

In October 2011, Raphael Pirker flew a model aircraft over the campus of the University of Virginia and recorded a few minutes of video. Mr. Pirker, from Switzerland, was assessed a $10,000 fine by FAA. He challenged the assessment, noting that FAA (aka, the ‘Complainant’) had failed to actually regulate ‘model airplanes’ and was misapplying the full-sized airplane regulations to lesser flying devices. In fact, model airplane use is subject to recommendations made by FAA in an advisory circular published in June 1981 (see the first three pages of Attachment 1).

Pirker won his initial challenge in a March 6, 2014 decision, when an Administrative Judge (AJ) granted a dismissal. Here is some of the text from the AJ’s decision to dismiss:

“…Complainant argues that Respondent was operating a device or contrivance designed for flight in the air and, therefore, subject to Complainant’s regulatory authority. The term, “contrivance” is used in the 49 U.S.C. Section 40102(a)(6) definition, “aircraft”, whereas Part 1, Section 1.1, defines an “aircraft” as a “device”; however, the terms are basically synonymous, as both refer to an apparatus intended or used for flight.

“It is argued by Complainant that, under either definition of the term ‘aircraft’, the definition includes within its scope a model aircraft. That argument is, however, contradicted in that Complainant FAA has, heretofore, discriminated in his interpretation/application of those definitions.

“Complainant has, historically, in their policy notices, modified the term “aircraft” by prefixing the word “model”, to distinguish the device/contrivance being considered. By affixing the word “model” to “aircraft” the reasonable inference is that Complainant FAA intended to distinguish and exclude model aircraft from either or both of the aforesaid definitions of “aircraft”.

“To accept Complainant’s interpretive argument would lead to a conclusion that those definitions include as an aircraft all types of devices/contrivances intended for, or used for, flight in the air. The extension of that conclusion would then result in the risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the “operator” to the regulatory provisions of FAA Part 91, Section 91.13(a).”

FAA then appealed to the NTSB to hear the complaint. NTSB, which has always been strongly influenced by Washington politics, sided with FAA in a November 17, 2014 decision. NTSB link The dismissal was overturned and the case was remanded back to the AJ.

The ‘Aircraft’ FAA is Trying to Regulate

Below is a screen-capture of an online ad for the Zephyr II, a lightweight flying wing measuring less than five-feet in width. The plane consists mainly of two foam wing-halves (see the largest objects within the orange ellipse). The basic kit costs $130; the electric motor kit is an additional $140, and mounts safely behind the wing.

The whole UAV apparently weighs four- to five-pounds and can fly at speeds as slow as that of a fast human runner. And, the EPOR foam material is similar to the Styrofoam used to make cheap coolers, or the foam that lines a typical bicycle helmet. There does not appear to be a substantial safety hazard with this ‘aircraft’ design. It really does appear to fit better as a ‘model aircraft’ than as an ‘aircraft’ to be regulated under the FAR’s.

20141120cpy.. Zephyr II kit pic

Should this type of device be regulated? Yes, at least to the point where it needs to be used safely and without excessively encroaching on the freedoms of other people, which includes their privacy. But, frankly, FAA is the LAST AGENCY we should be using to enforce against potential misuse of foam model airplanes. We would be much better served if these low-altitude activities were kept below and away from real aviation activities, and if all issues were managed locally, by local codes and law enforcement personnel.

Some Background:

An excellent online article appears at personal-drones.net: Trappy and the FAA fine for flying over the University of Virginia. It includes a copy of the 3-minute video that started this brouhaha, and another video with some interesting perspective by a model airplane enthusiast. Both videos are embedded below.

The informative video rant below is by a lifelong RC hobbyist named XJET, a New Zealander who also has a website called rcmodelreviews.com.

Here is the text of a portion of XJET’s statement, beginning at 4:20 of the video:

“…The most dangerous thing you can do with a model aircraft apparently – and this is based on surveying all of the different airspace national administrators – the most dangerous thing you can do with a model aircraft is accept money for flying it. Honestly, that is because they all have a regulation that says, ‘you cannot accept money for flying a model aircraft.’

LadyBird-UAV (48gram quadcopter/camera)

Here is a picture showing the LadyBird UAV quadcopter … less than two ounces!

Once you accept a single red cent, for doing something with your model plane, it is no longer a model plane. It becomes an unmanned aerial system, and we have a list of regulations or policies this long you have got to comply with, and you can’t do a damned thing – you can’t fart, burp or dribble without our permission, if it involves an unmanned aerial system. It’s that stupid. Honestly, it is. And, in most countries, all unmanned aerial systems are treated equally. So, this little LadyBird – EPV LadyBird, 48 grams – if I fly this and someone pays me a cent to fly it, or I make a cent of income by flying it, it is treated exactly the same as if I were flying a predator drone over Afghanistan and blowing the snot out of insurgents on the ground below. Honestly, I kid you not. This is honestly the truth of the matter….”

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