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In a setback for consumer drone advocates, the National Transportation Safety Board on Tuesday supported the FAA’s authority to impose a $10,000 fine on Raphael Pirker, a photographer who had taken pictures from the air over the University of Virginia.
In its ruling, which reverses an administrative judge’s decision in March to throw out the fine, the Board said the FAA has authority over any “aircraft,” even model aircraft or unmanned devices, and can impose fines accordingly.
The board’s decision comes at a time of ongoing controversy over what many perceive as a heavy-handed approach to drones on the part of the FAA, which has declared no one may use the devices for business purposes — including for activities like news photography and search-and-rescue — without a special waiver. But the agency has been slow to grant such waivers, even as drone-based businesses are taking off in Canada and elsewhere.
Several media outlets, including the New York Times, had filed friend-of-the-court briefs supporting Pirker and challenging the FAA’s blanket ban as a violation of their First Amendment rights. The board, however, chose to sidestep the larger issues and simply remand the case to the initial judge to conclude whether Pirker had operated the device in a “careless or reckless manner.”
Mickey Osterreicher, who is general counsel for the National Press Photographers Association, suggested that the board had failed to acknowledge the degree to which Congress has distinguished airplanes from model aircraft.
“Given the administrative judge’s initial ruling it is disappointing but not surprising to see the full NTSB give deference to the agency. While remanding for further fact finding regarding “careless and reckless” operation may be appropriate it never-the-less gives short shrift to the congressional intent distinguishing manned from model aircraft,” said Osterreicher in an email.
Overall, the decision comes as boost for the beleaguered FAA, which has repeatedly missed Congress-imposed deadlines to update aviation rules to account for the growing popularity of drones, and has instead been relying on improvised measures to exert control.
While Pirker can appeal the Board ruling to a federal court judge, he may have to first wait until the administrative judge has ruled on the “reckless” issue. Meanwhile, a group of businesses and universities are in the midst of a separate legal challenge to the FAA’s drone challenge before the U.S. Court of Appeals for the District of Columbia — a case that is likely to yield a more definitive answer.
Here’s the Board ruling, with some key parts underlined:
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