The agency wants the power to regulate anything that moves through the air.
Ever throw a baseball? Or a paper plane? Watch out—the Federal Aviation Administration thinks that anything that flies through the air might be aircraft that it can regulate.
That’s a bit hyperbolic, but not by much. Last month, a federal judge ruled that the Federal Aviation Administration didn’t correctly regulate drones, so anyone could fly them legally. In that case, the judge decided two things: The FAA never made drone regulations and standard aircraft regulations the FAA has do not apply to drones because they aren’t “aircraft” in the traditional sense (at least as far as the FAA has traditionally defined them). In their original argument, the FAA said that it has the right to regular anything that flies through the air—and, in an appeal to that decision, they’ve decided to double down on the whole thing.
We’ve covered that case plenty, so if you need anything more than a quick primer, you can check out the specifics here. Basically what happened was, a couple years ago, a drone pilot named Raphael Pirker flew his 5 pound, styrofoam drone around the University of Virginia, and got paid to do it. That angered the FAA, who has been trying to keep commercial drone flights grounded. But, because they never actually made regulations, they went after Pirker for the “reckless operation of an aircraft,” which turned out to be a really bad idea, because the FAA has always specifically referenced “model aircraft” when it wants to talk about RC aircraft or drones. Furthermore, the statute they tried to get Pirker on references things like pilots walking around the cabin and flight attendants being distracting—clearly not something you can do on a foam drone.
Judge Patrick Geraghty of the National Transportation Safety Board specifically called them out on this, saying that, “accepting complainant’s overreaching interpretation of the definition [of] ‘aircraft’ would result reductio ad absurdum in assertion of regulatory authority over any device/object used or capable of flight in the air, regardless of method of propulsion or duration of flight.”
If you can’t parse that Latin, it means that Geraghty thinks the FAA’s argument is off-the-rails insane. Geraghty wrote that, if he fined Pirker for flying his drone recklessly, it could subject the operator of “a paper aircraft, or a toy balsa wood glider … to the regulatory provisions of the FAA.”
In its appeal brief, the FAA says that Geraghty was wrong to reject their argument that they decide what an aircraft is when they want to and that, if we just trust them, they will define “aircraft” in a responsible manner.
“He uses this perceived absurdity as justification to limit the plain wording of both the statutory and regulatory definition of ‘aircraft,’ Peter Lynch, the FAA’s counsel in the case, wrote in his brief. “The [judge] does this even though there is no evidence before him to support his belief that the FAA will abuse its enforcement authority if he does not impose such a limitation.”
The problem, besides a federal agency saying "trust us to not abuse our power" is, there is evidence—the fact that this case exists at all.
All over YouTube, there are examples of drones being “operated deliberately at low altitudes over and in proximity to vehicles, buildings, people, streets, and structures,” (as the FAA alleges Pirker did in this case), yet none of those people have been slapped with a $10,000 fine. The reason? They didn’t take money to do it, and Pirker has become the FAA’s pet project to make an example out of someone. The FAA says Geraghty arbitrarily decided that “’method of propulsion’ and ‘duration of flight’ are two factors that [Geraghty] seemingly saw as being relevant to determining what constitutes an ‘aircraft.’”
So, is something thrown by a human arm an aircraft? Is a bullet? Is an acorn that falls from a tree?
“If the FAA wins this case, it can turn them into an agency policing things like frisbees and baseballs and bullets if they can penalize the reckless operation of it,” Brendan Schulman, Pirker’s lawyer, told me months ago, before the case had been decided. His stance hasn’t changed since then: “ In general, the agency appears to be relying heavily on an all-expansive definition of the term 'aircraft,' which was drafted to apply to devices that transport people in the air, and despite a 55-year history of non-regulation of model aircraft,” he told me this morning.
As has been decided by Geraghty and corroborated by lawyers all over the country (and the fact that the FAA is going after Pirker using this odd, manned aircraft regulation), the FAA has not made any regulations against the use of commercial drones. They could do that still. They should do that still. They are years behind schedule in doing that. Instead of getting on that, they’re appealing a case to get $10,000 out of some dude. Reductio ad absurdum, indeed.