An internal investigation found that Raphael Pirker violated no on-the-books regulations.
Raphael Pirker and his drone. Image: Team Blacksheep
Internal Federal Aviation Administration documents show that the result of an agency investigation determined commercial drone pilot Raphael Pirker violated no regulations—then the agency fined him $10,000 anyway.
Whether there's actually a regulation making commercial drones illegal is the question that has been debated for months in a landmark, precedent-setting court case that has, at least temporarily, opened the skies for commercial drone operators. The question of whether the FAA actually believes it can fine someone simply for earning money while flying a drone (and not, for say, violating some other regulation in addition) is a question the FAA has refrained from answering during the the entire proceedings.
Now we know that, internally, the agency knows there is no regulation banning commercial drones.
The “Enforcement Investigative Report,” obtained by Motherboard through Pirker’s lawyer, Brendan Schulman, was unable to list a single regulatory violation related to Pirker’s October 17, 2011 flight at the University of Virginia. Regardless, the FAA fined Pirker $10,000 for the “reckless flight of an aircraft,” a charge that a federal judge has since thrown out. The FAA is appealing.
“On October 17,2011, Mr. Raphael Pirker conducted a number of commercial, Unmanned Aircraft System (UAS) flights around the University of Virginia (UVA) campus for the purpose of making a video of the campus and the new hospital wing contrary to the following 14 Code of Federal Regulations (CFR):,” the report reads.
And then, nothing. A huge blank space.
The report goes on to list the policy statement that Pirker violated, a voluntary guidelines document put out by the FAA in 2007 that is not legally binding.
Despite the investigation’s finding, the FAA tried to fine him using regulations written for manned aircraft in a move that “represents a moment unprecedented in American aviation history,” and an attempt to over broaden the definition of the word “aircraft” to the point where it is meaningless, according to Schulman, writing in a legal brief filed Monday.
Over and over again, the FAA has noted in the media that Pirker wasn’t fined for flying commercially, but over and over in its legal briefs, the agency has said that commercial operation of a drone is banned (according to the policy statement, not regulation). In its internal evaluation, the agency again continually notes the commercial nature of his flight.
This latest brief is likely to be the last before the National Transportation Safety Board eventually issues a ruling—a decision that could come any week now.
“The FAA [has] engaged in a campaign of intimidation against companies and individuals who were using model aircraft for business purposes, issuing cease and desist letters in an attempt to enforce [its] policy as if it were a binding regulation,” Schulman wrote.
That alleged intimidation campaign has continued, with the FAA recently attempting to fine a drone hobbyist—not a commercial pilot—for the first time ever. But since the original decision in March by Judge Patrick Geraghty, the FAA has had its hands full with drone pilots emboldened to disobey the FAA’s official stance that commercial use of drones is illegal. Companies and nonprofit groups are openly disobeying the administration’s guidance, and are asking the agency to show where, in the regulations, it says they cannot fly a drone legally.
It doesn’t say that anywhere, which is why the FAA has tried to say that Pirker’s five pound styrofoam drone is an “aircraft,” a definition that makes no sense considering that, in official documents, the agency has always distinguished between model aircraft and manned ones.
Schulman argues that if the NTSB overturns Geraghty’s decision based on the FAA's new interpretation of the word "aircraft," it would open up a huge can of regulatory worms.
“The FAA’s newfound concern for the harm that could be inflicted upon a university statue or railroad tracks by a 5-pound piece of styrofoam is not credible,” he wrote. “The [FAA] completely fails to address how to reconcile [its] proposed interpretation [of regulation] with the fundamental contradictions in the regulatory scheme that it creates.”
Among those contradictions: The FAA says that the minimum safe altitude for an aircraft is 500 feet. At the same time, its official documents suggest that the maximum safe altitude for a model aircraft is 400 feet. If both become “aircraft,” they cannot be reconciled.
Other regulations that apply to “aircraft” suggest that it’s a violation to fly one without briefing how to buckle a seatbelt and that is illegal to aim a laser pointer at an aircraft—something that’s certainly a problem if there’s a pilot onboard, but completely harmless if it’s a styrofoam drone.
Schulman wrote that, “having been caught trying to enforce the unenforceable, the FAA resorts to an absurd post hoc interpretation of the definition of ‘aircraft.’ All of these strained efforts are undertaken for a single purpose: to obscure the agency's decade-long delay in issuing proposed unmanned aircraft regulations pursuant to the required notice and comment process required.”
The agency’s own internal document suggests that’s absolutely the case.