UAS attorney: NTSB ruling on Pirker case has little effect

By Patrick C. Miller | November 20, 2014

An attorney specializing in unmanned aerial systems (UAS) law says this week’s ruling by the National Transportation Safety Board on the Raphael Pirker case changes little in the way UAS are regulated by the Federal Aviation Administration.

“Honestly, I don’t think it makes very much practical difference in terms of the way the industry and the law are progressing,” said James Mackler with the Bone McCallester Norton law firm in Nashville, Tennessee.

“Congress has already told the FAA that they have to come up with regulations governing the commercial use of UAS,” he explained. “Congress has essentially preempted this issue, making it clear that they do expect unmanned systems to be treated as aircraft and be operated in a safe manner.”

The NTSB Board remanded the case to an administrative law judge to collect evidence and issue a finding on whether Pirker's operation of his unmanned aircraft in 2011 over the University of Virginia campus was careless or reckless.

“From the FAA’s standpoint, nothing has changed legally from the period during which the decision was stayed after we filed the appeal,” FAA spokesperson Les Dorr, told UAS Magazine “The regulations continue in force, and we will continue to enforce them.”

The FAA appealed an NTSB administrative law judge's decision after the judge dismissed the FAA's order requiring Pirker to pay a civil penalty of $10,000 for allegedly operating an unmanned aircraft in a careless or reckless manner. The judge compared Pirker's unmanned aircraft to a model aircraft, and found the FAA had not enacted an enforceable regulation for the aircraft.

However, the NTSB Board reversed the judge’s decision and determined that the FAA can apply to unmanned aircraft a regulation prohibiting the operation of aircraft in a careless or reckless manner. An administrative law judge will now review evidence to determine whether the operation was careless or reckless.

Mackler, a former U.S. Army Blackhawk combat pilot, practiced law in the Judge Advocate Corps where he served as a legal advisor to high-level commanders. He founded Bone Law’s UAS section, advises a National Guard UAS unit and speaks on UAS law.

Regarding the NTSB’s ruling, Mackler said, “I didn’t know how it was going to turn out. I thought that the legal arguments made by Pirker’s attorney were great arguments, and I thought he could even prevail, but I didn’t think it would have a great practical impact on the industry going forward.”

Pirker is appealing the FAA’s decision to fine him for a UAV flight in 2011, well before Congress passed the current UAS law in 2012.

“It was a great argument, but it’s a historical argument at this point,” Mackler said.

In fact, Mackler said it’s possible that based on how the administrative law judge rules, the case could go back to the NTSB on appeal.

“The judge could rule that he (Pirker) wasn’t reckless, remove the fine or that he was and keep the fine, in which case there may be another appeal,” he said. “There’s nothing that says they can’t bring it back to the NTSB if a new issue arises as a result of the reconsideration.”

Whatever happens, Mackler believes that it will have little, if any, legal impact on the UAS industry or the FAA’s regulations.

“This legal process is probably going to take years more, potentially,” he said. “Hopefully, Congress, the FAA and the industry will move forward on this question and get some practical operating regulations in effect.”