The National Transportation Safety Board (NTSB) agrees with the Federal Aviation Administration that a model aircraft is an aircraft and therefore subject to FAA regulation against unsafe operation.

The NTSB on November 18 reversed a ruling of its own administrative law judge that the FAA was wrong to fine Raphael Pirker $10,000 for allegedly recklessly operating a Ritewing Zephyr flying wing at the University of Virginia in October 2011. The FAA appealed the March 6 decision to the full NTSB board, which has remanded the matter to Judge Patrick Geraghty for a “full factual hearing.”

In its 12-page decision, the NTSB focused on whether Pirker’s machine can be rightly called both an aircraft and an unmanned aircraft system subject to federal aviation regulations (FARs) Part 91 general operating and flight rules. The Board did not address the FAA’s prohibition against using unmanned aircraft for “business purposes,” dating from a 2007 policy notice. When it fined Pirker, the agency claimed that he flew the five-pound Zephyr both in an unsafe manner and for compensation to film the campus in Charlottesville, Va., for a promotional video.

The FAA’s oversight of model aircraft is expressed in a 1981 advisory circular that provides voluntary guidelines that hobbyists should follow when operating model aircraft for recreational purposes. Meanwhile, FAR Part 91.13(a) prohibits careless or reckless operation of “aircraft...for the purpose of air navigation.” In a motion to dismiss the FAA’s fine against Pirker, attorney Brendan Schulman argued that the agency has promulgated no binding regulation that applies to model aircraft.

In its order remanding the case to Geraghty, the NTSB said the definitions of aircraft contained in federal law “are clear on their face. Even if we were to accept the law judge’s characterization of (Pirker’s) aircraft, allegedly used at altitudes up to 1,500 feet agl for commercial purposes, as a ‘model aircraft,’ the definitions on their face do not exclude even a ‘model aircraft’ from the meaning of ‘aircraft.’ Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. 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.”

The Board said Geraghty “erred in presuming the regulations categorically do not apply to model aircraft. The plain language of the definitions and regulation at issue simply does not support such a conclusion.”