A nearly three-year legal saga ends after a judge asks the FAA why it tried to fine a foreign person in the first place.
Pirker flew in the American southwest last year, too. Image: Raphael Pirker / Team BlackSheep
For a good few months last year, commercial drones were completely legal and entirely unregulated, thanks in no small part to the persistent legal battle fought by a Swiss guy and his lawyer. Today, that legal battle is over—the Federal Aviation Administration and Raphael Pirker have decided to settle, scoring the agency what has probably been the hardest and most frustrating $1,100 it has ever earned.
The case revolves around Pirker getting paid what he calls "pocket money" for filming an advertisement at the University of Virginia with his drone. The FAA caught word of the flight, in which Pirker used a couple-pound foam drone and hurt no one, and decided to fine him $10,000. Pirker hired a lawyer named Brendan Schulman and fought the case, eventually beating the FAA.
Pirker "does not admit to any allegation of fact or law herein, and by not contesting this Amended Order of Assessment is resolving the matter solely to avoid the expense of litigation," the settlement reads. In other words, this just goes away, because both the FAA and Pirker are tired of it.
The original decision, however, opened the floodgates for drone enthusiasts everywhere: The judge decided that drones were not "aircraft" and therefore any use of them was essentially unregulated by the FAA. That decision was overturned in November by an appeals court, but for a good eight months there, the FAA was virtually powerless to do much of anything about people who flew drones commercially.
Last fall, the FAA changed the rules of the game, however (without public input), making all commercial drone flights illegal using a new legal mechanism. At that point, Pirker decided that the case was no longer really worth fighting. The case had been referred to a lower court to determine exactly what a "reckless" flight with a drone looks like.
"With the recent reinterpretation, even a win wouldn't have any real world merit," Pirker told me from Hong Kong, where he lives. "Even if we had won the case, [Schulman] pointed out it wouldn't have any kind of significance. It was more of an economic decision—just wanted to get out of this mess as best as I can."
And so, Pirker is out after getting his fine reduced from $10,000 to $1,100. Under the terms of the deal, he will not admit fault and we're still sort of left with no idea as to what constitutes a reckless flight.
"The FAA had some general allegations in the complaint, like 'flying close to the ground' or 'at treetop level' or 'close to a railway line,'" Pirker said. "It's stuff that everybody is doing, and there was some concern that this could then be used as a precedent. All of these charges were dropped as part of the settlement deal."
Schulman told me, however, that had the pair decided to continue fighting the case, the court would have eventually decided that flying a foam, five-pound drone isn't reckless at all.
"We were prepared to defend the case on its merits for recklessness," Schulman told me. "The regulation requires endangerment of life or the property of another. If they found the risk was giving someone a scratch, there's certainly the possibility it would have established that flying a styrofoam model in and of itself doesn't pose the kind of danger to people necessary to meet the regulatory standard."
Now, we won't know either way.
Over the past few months, Pirker has become something of a polarizing character in the drone world: Some originally looked at him as a hero for sticking it to the FAA. Others argue that he baited the FAA by filming viral videos of Manhattan, and that his videos brought so much publicity to what had been a rather niche hobby, making it so large that the FAA couldn't ignore it anymore.
the floodgates are already open
While he's certainly a principled guy ("there's not any other means [besides a legal battle] to be taken seriously by the FAA," Pirker said), he's also a Swiss citizen who happened to get caught up in one very long, very annoying fight.
And that's most likely why the FAA was willing to settle: In a letter Pirker shared with me, a judge with the National Transportation Safety Board asked the agency why, essentially, it was putting a foreign national through the ringer for a relatively minor (and legally unclear) infraction. The
FAA is allowed to take legal enforcement action against foreign nationals in three circumstances: The person has an FAA airman's certificate; the person commits a violation as a passenger; or the person runs a "foreign repair station." Otherwise, the FAA is supposed to refer the case to the person's home country, in this case, Switzerland. The FAA didn't do that.
Pirker "does not fall within the three circumstances that provide for taking of legal enforcement action … it is determined that this issue is best addressed, and appropriately resolved, prior to commencing a hearing," the judge wrote.
Schulman said that's another reason why the FAA should be happy to put this behind them.
"The [foreign national issue] was a defense we raised at the proceeding and it could have resulted in a dismissal," he said. "It's possible one reason they were interested in settlement is they did not want that issue litigated."
As for the people who say he's ruined the hobby, or turned the FAA against drone pilots in general, Pirker says it's nonsense.
"We were doing what everyone is doing now, just 2-3 years ahead of everyone else. We could have argued that flying drones is not a real safety issue when there were just a couple of people doing it. The potentials for harm are negligible," he said. "However, if you look at the recent shenanigans some people have been doing it becomes a statistical problem. I don't think we would have gotten in as deep of trouble if drones hadn't already become very popular."
So, one of the most interesting regulatory cases in years is over. There will be no more decisions, no more wacky arguments from the FAA (at least in this case). No more attempts to argue that a baseball is an airplane.
When I first started covering Pirker's case, media and just about everyone else took the FAA's word that commercial drone flights were illegal. Since then, the agency has been exposed, over and over, as making up quasi-legal "regulations" as it goes along. And still, we have no small drone rule, after one was promised, over and over again, by the end of 2014.
"I think it ended up being a draw, which i think is a win for an individual or a small company no matter how you look at it. They don't lose a lot of cases, and I think for us it was an opportunity to get heard and an opportunity to also say that this is not a very serious approach to drone regulations," Pirker said.
"I'm hoping there's a change and they look at drones more sensibly," he added. "I think the FAA is going to lose authority over this discussion because if they don't open up the skies soon in a drastic way, the floodgates are already open. People will ignore the rules. Even the commercial players will need to play in a market field where everyone is breaking the law so to speak."