How Low Is The Sky? And More Questions A Drone Legal Case Might Resolve

Ritewing Zephyr

The FAA alleges that Pirker recklessly flew a drone or model airplane like this one over the University of Virginia campus.

Ritewing RC

Austrian Raphael “Trappy” Pirker has been flying drones and taking aerial photos as a hobby for about five years. But now he may have to pay $10,000 for an incident in October 2011, according to a complaint filed by the Federal Aviation Administration, alleging reckless flight over the University of Virginia campus in Charlottesville, Va., and taking paid compensation for aerial photography without being licensed.

Pirker’s lawyers have already counter-filed a motion to dismiss the complaint. Bigger than this case are the legal gray areas it will clarify. The FAA is planning to accept drones into commercial airspace in 2015, but until then, unmanned aircraft—from toy RC planes to 8-foot storm chasers—are governed by old guidelines. The 2012 FAA re-authorization act provides rules for model airplanes in the transition before drone law is figured out, but Pirker’s case* predates that. Here are the most important parts of the case:

Where is the line between drone and toy?

The 2012 FAA re-authorization explicitly adds a category for model aircraft, where “model” is determined by size (under 55 pounds), use (flown strictly for hobby or recreational use), and visibility (must be within line of sight of the person operating the aircraft). Beyond that, model airplanes are governed by community standards, until they interfere with the flights of larger aircraft. Pirker was flying by First Person View, where a video camera pointed forward from the drone streams film back to the pilot in a remote viewing location. This breaks the third requirement of model aircraft, but that law wasn’t in place in 2011, when the incident the complaint is about took place.

Prior to the FAA 2012 authorization, model airplanes were very loosely regulated. The statement from Pirker’s defense goes so far as to argue that “the FAA expressly declines to regulate model airplanes.” An advisory circular, published in 1981, sets out voluntary guidelines but isn’t law and as such cannot be legally enforced. A policy clarification came with the 2007 statement by the FAA in the Federal Register on unmanned vehicles.

The 2007 statement specifies a curious constraint on unmanned flight: drones must be observed, in direct line of sight, by either a pilot or an observer, including the possibility of an observer in another aircraft. If drones are to be truly useful in regular airspace, this can only ever be a temporary rule, as line of sight tethering drastically limits how drones can fly—which in turn limits their usefulness.

What counts as piloting?

Pirker flew the drone using a video camera. His drone, a Ritewing Zephyr, records the video it captures as it flies. The complaint alleges that Pirker sold this video footage to Lewis Communications, an advertising agency. The drone, because it is piloted by a first-person-view camera, cannot help but record video while it flies. Pirker’s defense argues that this is merely sensor data, repurposed for sale; drastically different than a manned aircraft carrying a photographer.

Decades of precedent in laws concerning manned aircraft are suddenly confronting aircraft that operate differently. Until new FAA regulations concerning unmanned aircraft are passed into law, courts will have to interpret precedent set with functionally different vehicles.

How low is the sky?

The FAA is an agency formed out of tragedy. In 1956, two airliners collided over the Grand Canyon, killing 128 people. In 1958, the FAA was created to ensure the safety of American skies by, among other tasks, clarifying where certain aircraft can fly, dividing the sky into a series of mix-use layers, keeping small airplanes out of the way of commercial airliners, and otherwise deconflicting the sky. Class G airspace, the lowest layer in the Eastern United States, starts 700 feet above sea level.

The commonly accepted ceiling for model airplane flight is 400 feet, dating back to the 1981 advisory circular, and the FAA’s complaint against Pirker says he:

[O]perated the above-described aircraft at altitudes of approximately 10 feet to approximately 400 feet over the University of Virginia in a careless or reckless manner so as to endanger the life or property of another

The trial itself will determine whether or not Pirker’s flying was reckless. There’s a chance, however, that it will instead determine the limitation of FAA standing. The counter-motion filed by Pirker’s defense counsel raises the question of jurisdiction. Recklessly operating a vehicle is certainly a public safety concern, but rather than being a matter of aviation security it might fall instead to local police, who have taken the lead in other cases where unmanned vehicles have caused injury or death. This includes a recent and infamous incident where a young man in New York died after a remote control helicopter struck him. NYPD, not the FAA, investigated the case, even though a flying vehicle was involved.

The precedent determined here will be an important one, and will surely influence whatever new regulations Congress passes when it comes time to let more drones into commercial airspace.

It could also set the balance between federal and local regulation of the air. Does the FAA have domain over all flying things, or does the regulated sky start at 700 feet?

*At the DARC conference in New York City this morning, Pirker showed a video of the Charlotte flight in question. In one part of the video, the drone flies near hospital helicopter landing pads. The FAA sets rules for takeoff and landing safety. If there is any area where jurisdiction of the sky intersects with that of the ground, it’s at the point of takeoff.


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