NTSB Decision Defining "Aircraft" as Anything That Flies Lacks Common Sense

Paper airplane illustration
Illustration: iStockphoto
That paper airplane is technically an aircraft and subject to federal aircraft regulations.

Last week, the National Transportation Safety Board, a U.S. agency better known for investigating aircraft accidents, overturned an early decision in a much-publicized case involving drone operator Raphael Pirker. The previous ruling threw out the US $10,000 fine the Federal Aviation Administration imposed on Pirker for operating his camera-equipped drone in what the FAA considered a careless and reckless manner. In its recent deliberations, the NTSB didn’t weigh whether Pirker had been careless or reckless. But it affirmed that the operator of a small unmanned aerial vehicle (UAV)—or indeed of any aerial device used carelessly or recklessly—was subject to FAA fines.

Wait. Any device?

That’s indeed what the recent NTSB decision argues. “An aircraft is ‘any’ ‘device’ that is ‘used for flight.’ We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless,” says the NTSB.

Model aircraft enthusiasts and supporters of commercial small UAV technology found the decision puzzling. Helen Greiner, founder and CEO of CyPhy Works, in Danvers, Mass., tweeted:

Yet the FAA has never fined someone for recklessly throwing a Frisbee or other kind of flying disc, which have genuinely injured people. Just last year a woman lost most of the sight in one eye when she was struck at a park in Manhattan Beach, Calif. No doubt, the thrower was careless, and unlike Pirker, caused a significant injury. But the NTSB and FAA never acted. Why not?

After all, the statute governing the NTSB’s responsibilities is as broad as it is clear: “The National Transportation Safety Board shall investigate – (A) each accident involving a civil aircraft.” I’m no lawyer, but I can read plain English. That statement comes from Title 49, Subtitle II, Chapter 11, Subchapter 3, Section 1132 of the U.S. Code. Title 49 defines “aircraft” as “any contrivance invented, used, or designed to navigate, or fly in, the air.” You don’t find a lot of people playing with Frisbees without flying them through the air, so logically they must be included if you want to follow the letter rather than spirit of the law.

Clearly the NTSB is doing some selective interpretation of federal statutes here. When it comes to the FAA’s authority to issue fines, it says, “Aircraft means a device that is used or intended to be used for flight in the air,” interprets that language literally, and seeks to include model aircraft of all types. Yet when it comes to its own responsibility to investigate aircraft incidents, the same word, defined in the law similarly (“ ‘aircraft’ means any contrivance invented, used, or designed to navigate, or fly in, the air”) is afforded a much narrower, and more sensible, interpretation.

When he overturned the fine against Pirker, NTSB administrative law judge Patrick Geraghty referred to the “risable argument” that the FAA should be in the business of policing folks flying “a paper aircraft, or a toy balsa wood glider.” Yet NTSB has embraced that very position, while accepting that “certain” aircraft regulations “may not be logically applicable” to all flying devices.

I’d say most aircraft regulations are not logically applicable. For example, the very same part of the law the FAA is using to fine Pirker (Title 14, Chapter I, Subchapter F, Part 91) holds that “aircraft” must maintain certain minimum altitudes—either 500 feet or 1000 feet, depending on whether the area is congested. Such a law can’t possibly apply to model aircraft (or Frisbees). Indeed, since 1981, the FAA has specifically urged modelers to voluntarily fly below 400 feet. So defining “aircraft” to include model aircraft creates a great muddle.

What to do is obvious: Keep your models below 400 feet. Stay clear of full-scale aircraft. And operate your model plane or helicopter as safely as you know how. But also be on notice now with the NTSB’s recent decision that no matter how responsibly you fly—even if it’s a paper airplane or balsa-wood glider—you are, technically, violating the law.



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Erico Guizzo
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