(Adds statement from Pirker’s lawyer and details about exemptions)
By Alwyn Scott
SEATTLE, Nov 18 (Reuters) - The U.S. aviation safety board ruled on Tuesday that the Federal Aviation Administration has the authority to apply to unmanned aircraft its longstanding regulations against “reckless or careless use” of manned aircraft.
As a result of the decision, which was the National Transportation Safety Board’s (NTSB) first involving an FAA fine against a drone, the case will be sent back to an administrative law judge to determine whether the flight in question was “careless or reckless.”
The case has been watched closely for indications of the FAA’s ability to enforce regulations against the commercial use of unmanned aircraft.
The FAA is developing specific regulations for such aircraft but has effectively banned their commercial use except when operators are granted special exemptions. In September, it granted an exemption to a group of film and television production companies.
The NTSB case involved use of an unmanned aircraft in 2011 to make a video for the University of Virginia. The FAA fined the remote pilot, Raphael Pirker, $10,000. Pirker appealed the fine and filed a motion to dismiss the case.
The lawyer for Pirker said he disagreed with the NTSB’s decision and is reviewing options. The ruling only concerned whether unmanned aircraft are subject to rules on reckless operation, said Brendan Schulman, a lawyer at Kramer Levin Naftalis & Frankel LLP in New York.
“The more significant question of whether the safe operation of drones for business purposes is prohibited by any law was not addressed,” he said, adding that the question is pending in a separate case that Kramer Levin also is handling.
The NTSB ruling is likely to prompt more companies to seek exemptions from FAA regulations to operate small unmanned aircraft, weighing less than 50 pounds, said Jonathan Hill, a lawyer at Cooley LLP in Washington, D.C., who represented the television and film companies that won an exemption.
“This may slow down the implementation of commercial aircraft” in U.S. airspace, he said, because many more people will seek exemptions. About 150 exemption requests are pending with the FAA, which has limited staff to handle them, he said.
The FAA contends that Pirker had, among other movements, flown his model aircraft, a Ritewing Zephyr, “directly towards an individual standing on a ... sidewalk, causing the individual to take immediate evasive maneuvers so as to avoid being struck.”
The administrative law judge found in March that the FAA did not have enforceable regulations against reckless use of unmanned aircraft, prompting the FAA to appeal to the NTSB. The judge, Patrick Geraghty, found that the FAA had said in 1981 and 2007 that it excluded model aircraft from its regulations on aircraft.
In Tuesday’s decision, the NTSB found that current U.S. regulations define aircraft as “any device ... used for flight in the air.” That definition, the NTSB said, applies to “any aircraft, manned or unmanned, large or small.”
The FAA welcomed the NTSB’s decision, saying it affirmed the agency’s position that it “may take enforcement action against anyone who operates a UAS (unamanned aircraft system) or model aircraft in a careless or reckless manner.”
The agency said the proposed civil penalty against Pirker should stand and it “looks forward to a factual determination by the administrative law judge on the ‘careless or reckless’ nature of the operation in question.”
The NTSB board voted unanimously in favor of the decision. The board currently has four members, down from five when at full strength. (Reporting by Alwyn Scott, additional reporting by Eric Beech; Editing by W Simon, Meredith Mazzilli, Cynthia Osterman and Peter Galloway)