FAA to Green Hope High School: Stop Your Fun!

The kill joys over at the Federal Aviation Administration have told Green Hope’s high school students that they may not operate a drone over Friday night football games, according to WRAL and The News & Observer.

That’s a shame, because they’ve created some pretty cool videos:

Green Hope Drone

The FAA has told the school that drone operations “are prohibited above large gatherings of people.” Wake County Schools have responded, predictably, by saying: “Wake County Public School System respects the FAA’s regulations, and will be reviewing our programs to ensure that future aircraft projects comply with safety guidelines.”

That’s probably because Wake County Public Schools doesn’t want to be on the receiving end of a civil fine or criminal penalties for violation of federal regulations. (The notion that a school district would allow dangerous objects to simply fly above the school is sort of bizarre. I’m sure school officials monitored the activity to avoid insurance claims.)

The fact is that these drones are lightweight and pretty safe, although there are certainly doomsday scenarios one can imagine involving payloads of chemical weapons.

But is the FAA in the right to issue a cease-and-desist letter? That’s a tougher question.

The Pirker Decision

In 2011, a communications company paid Raphael Pirker to fly his remote controlled, four pound Ritewing Zephyr over the University of Virginia with a camera attached to take video and photographs of the campus. The footage was to be used in a commercial. Eighteen months later, the FAA issued an Order of Assessment fining Pirker $10,000 for his actions.

The FAA accused Pirker of violating FAR Section 91.13(a), a catchall part of the Code of Federal Regulations that prohibits people from “operat[ing] an aircraft in a careless or reckless manner so as to endanger the life or property of another.”

Pirker did not have a airman’s certificate, which saved him from a likely certificate action that would’ve suspended or revoked a pilot’s license. Still, $10,000 is a lot of money, and Pirker challenged the Order. These challenges are litigated first before one of four National Transportation Safety Board’s Administrative Law Judges.Advisory Letter 1981

Judge Patrick Geraghty heard the case and issued a ruling earlier this year in Huerta v. Pirker. An NTSB Administrative Law Judge’s order is not a final order, but may be appealed to the full five-member Board.

Judge Geraghty held that while the FAA could regulate drones like Pirker’s, it had not done so, and in fact issued an advisory circular in 1981 (an updated FAA guide to model aircraft) in which it declined to impose mandatory regulations upon “model aircraft” and merely encouraged model aircraft operators to voluntarily abide by safety considerations.

Geraghty pointed out that ultralights are regulated by FAR Part 103, not FAR Part 91, further illustrating that just because it flies, does not mean it is classified as an aircraft under FAR Part 91.

To accept [the FAA’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 13(a).

Geraghty dismissed the complaint. The FAA has appealed. If Geraghty’s decision is upheld, it will be important, not because it will mean the FAA can’t regulate this activity, but because it will mean that the FAA will need to come up with specific regulations, and go through a regulatory review process, before it can simply send out cease-and-desist letters.

In the meantime, the FAA continues to maintain that it has the authority to regulate low-level model aircraft as unmanned aircraft systems even though it has not gone through a rulemaking process.

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.