Brendan Schulman (inset) is making a name for himself in the drone community, but he may be getting a less flattering name at the FAA after suggesting that the Agency resorted to “an absurd post hoc interpretation of the definition of aircraft“. On Tuesday, Schulman filed a Reply Brief addressing the FAA’s recent appeal of the Raphael Pirker case.
Earlier this spring, the FAA filed an appeal with the National Transportation Safety Board (NTSB) of judge’s Patrick Geraghty’s dismissal of the FAA’s $10,000 civil penalty levied against Pirker for recklessly flying his drone for commercial purposes.
This most recent brief comes on the heels of last week’s Amici Curiae filed (with the NTSB) by 13 news media companies in support of Mr. Pirker.
The appeal will be decided by the NTSB’s Board Members who are responsible for reviewing appeals of FAA cases. Here’ is Schulman’s Reply Brief Introduction:
“This proceeding represents a moment unprecedented in American aviation history: an attempt to penalize the operator of a model aircraft in the absence of any regulation, and despite decades of FAA statements confirming the lack of regulation. Although one would never know it from reading the Administrator’s Appeal, the impetus for this historic case is not that Mr. Pirker’s five-pound styrofoam model aircraft hurt anyone or damaged any property, but that he operated it for a commercial purpose, in violation of a non-binding FAA policy. Having been caught trying to enforce the unenforceable, the FAA resorts to an absurd post hoc interpretation of the definition of “aircraft.” This new interpretation poses intractable conflicts with countless regulations and, if adopted, would place the NTSB in the awkward position of being viewed as having failed to fulfill its investigatory obligations. Moreover, this new interpretation, clearly concocted for litigation, contradicts not only the plain language of the definition but also the considered conclusions of the FAA’s own researchers. All of these strained efforts are undertaken for a single purpose: to obscure the agency’s decade-long delay in issuing proposed unmanned aircraft regulations pursuant to the required notice and comment process required by 5 U.S.C. § 553. Neither Chevron nor any other legal doctrine saves the FAA from its failure to issue those regulations. The dismissal should be affirmed.”
The full Reply Brief is available at sUAS News.