A judge in Denver has terminated the Obama administration’s plan to fine a model airplane controller $10,000 for a flight over the University of Virginia in 2011 in which he captured photo and video images that he then sold to the university.

National Transportation Safety Board Judge Patrick G. Geraghty wrote in this opinion that at the time of the model aircraft’s operation, there was “no enforceable FAA rule” or regulation applicable to model aircraft or for classifying model aircraft as an unmanned aircraft system.

His decision created a speed bump for the federal government in its attempt to follow through on its “Order of Assessment” against Raphael Pirker of Zurich, Switzerland. Pirker was told he was being assessed a “civil penalty” of $10,000 for the Oct. 17, 2011, flight of a Ritewing Zephyr powered glider aircraft in the vicinity of the University of Virginia.”

Aviation Week reported the Federal Aviation Administration immediately announced it would appeal Geraghty’s ruling.

The case has developed as the use of drones has engendered controversy. The Obama administration has used them to target hundreds of terrorists overseas in missions that also have taken innocent lives.

In the U.S., the concerns primarily have focused on privacy.

The FAA claimed Pirker was acting as pilot in control without having a pilot’s certificate.

According to Aviation Week, the FAA “further charged that the UAS was operated ‘in a careless or reckless manner so as to endanger the life or property of another.'”

Pirker argued that there was no valid rule in the Federal Aviation Regulations that covered his excursions.

Responding to the government’s contention that his model plane is “by definition” an aircraft, Pirker argued that the definition would also put “a paper aircraft or a toy balsa wood glider” under FAA regulations.

The judge wrote that “historically, in their policy notices, modified the term ‘aircraft’ by prefixing the word ‘model,’ to distinguish the device/contrivance being considered.”

“By affixing the word ‘model’ to ‘aircraft’ the reasonable inference is that Complainant FAA intended to distinguish and exclude model aircraft from either or both of the aforesaid definitions of ‘aircraft,'” the judge wrote.

“To accept complainant’s interpretive argument would lead to a conclusion that those definitions include as an aircraft all types of devices/contrivances intended for, or used for, flight in the air. The extension of that conclusion would then result in the risible argument that a flight in the air of, e.g., a paper aircraft or a toy balsa wood glider, could subject the ‘operator’ to the regulatory provisions of FAA Part 91, Section 91.139(a).”

The FAA has issued a separate advisory regarding “Model Aircraft” that notes the rules are voluntary. And the agency encourages operators to not fly near people, airports and other fixtures.

“It is concluded that, as complainant: has not issued an enforceable FAR regulatory rule governing model aircraft operation; has historically exempted model aircraft from the statutory FAR definitions of ‘aircraft’ by relegating model aircraft operations to voluntary compliance with the guidance … respondent’s model aircraft operation was not subject to FAR regulation and enforcement.”

Pirker’s request for the case to be dismiss was granted.

But the FAA, in confirming it was not satisfied with the decision and would appeal, said the judge’s conclusion underscored “the immediate need for a regulatory framework for small UAS.”

Michael Toscano of the Association for Unmanned Vehicle Systems International said: “Our paramount concern is safety. We must ensure the commercial use of UAS takes place in a safe and responsible manner, whenever commercial use occurs.”

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