By: Chelsea Gold
January 22, 2015 marked the end of the first legal battle between the Federal Aviation Administration (FAA) and a user of unmanned aircraft systems (UAS) with the settlement of Huerta v. Pirker, in which the FAA agreed to lessen Raphael Pirker’s $10,000 fine to $1,100.
The FAA sued Pirker in 2011 for operating a styrofoam RiteWing Zephyr II aircraft to capture aerial shots of the University of Virginia Medical Center, alleging that he had done so for commercial purposes and in a reckless manner – acts that would have certainly been legally cognizable if UAS fell under the umbrella term: “aircraft.” Pirker argued that the Zephyr was little more than a remote-control airplane and that the FAA had no right to regulate something not officially (and legally) classified as an aircraft. This argument was a success in the first stage of the litigation; however, the decision was overturned on appeal where the National Transportation Safety Board held that the category of “aircraft” subsumes small UAS and therefore, UAS fall under the FAA’s jurisdiction. According to his lawyer, Pirker settled because the amount of time it has taken to finish the case has “diminished [its] utility . . . to assist the commercial drone industry in its regulatory struggle.” Even so, he and his company, Team BlackSheep, are pleased that the litigation has resulted in significant talks about use of UAS in the national airspace. And it certainly has.
Yet this leaves the UAS industry, particularly those who have been clamoring for formalized rules from the FAA, in a precarious position where it is left wondering what this means for the future. Absent a settlement, it is likely that further clarity would have emerged in determining whether or not the FAA’s current application of aircraft rules is truly legal; or, at the very least, it would have increased the pressure on the FAA to promulgate UAS-specific rules, specifically those allowing UAS to be used for commercial purposes. To be sure, the FAA has made some effort in clarifying the future policies surrounding UAS through its use of piecemeal exemptions. However, these exemptions are drastically inadequate, require an extreme amount of foresight, and are often accompanied by a number of often-burdensome conditions.
Moreover, with the recent UAS landing on the White House lawn, there is now a broader public concern with regard to security and privacy issues surrounding the operation and control of UAS. Regardless of how realistic it is that such a small drone could carry explosives or advanced weapons to any landmark in the United States, the need for clear and established policy from the FAA has never been greater. Though the FAA has proposed civil penalties against four other UAS operators, with the recent decision to settle Pirker, it is likely that the United States and UAS community will have to wait until September 2015 (assuming the FAA releases its proposed rules on time)
 Settlement of Pirker, 217 N.T.S.B 8603 (2014).
 See 49 U.S.C. § 40102(a)(6) (2014) (defining aircraft as “any contrivance invented, used, or designed to navigate, or fly in, the air”).
 See generally Pirker, 217 N.T.S.B 8603 (2014).
 Press Release, Team BlackSheep, Team BlackSheep Drone Pilot Raphael Pirker Settles FAA Case (Jan. 22, 2015) (https://www.team-blacksheep.com/docs/pirker-faa-settlement.pdf).
 Id. (“We are pleased that the case ignited an important international conversation about the civilian use of drones, the appropriate level of governmental regulation concerning this new technology, and even spurred the regulators to open new paths to the approval of certain commercial drone operations”).
 FAA, Petition for Exemption or Rulemaking (2014) (stating that to petition for exemption it must be sent 120 days before the applicant needs the exemption to take effect).
 Stephen Kiehl, FAA Grants Drone Exemptions for Real Estate, Agricultural Use, National Law Review, Jan. 9, 2015, https://www.natlawreview.com/article/faa-grants-drone-exemptions-real-estate-agricultural-use (explaining the FAA placed a number of conditions on commercial use of UAS, including that each operation must have a pilot and an observer, and the pilot must have at least an FAA private pilot certificate and a current medical certificate).
 Abby Haglage, The Lil’ Drone that Crashed the White House, The Daily Beast, Jan. 27, 2015, https://www.thedailybeast.com/articles/2015/01/27/the-lil-drone-that-landed-at-the-white-house.html.
 Id. (“I think it’s really important to step back and realize all the things that someone would have to go through to weaponize a radio controlled drone that weighs less than 5 kg,” he says. “The actual payload capacity of that is 2.6 pounds. That’s about the weight of a squirrel”).