Citing concerns of the potential ramifications on the safety of the national airspace system, FAA is appealing a National Transportation Safety Board administrative law judge’s decision to dismiss a proposed civil penalty for unauthorized use of an unmanned aircraft system.

The law judge’s determination puts the penalty on hold while the agency appeals the case to the full NTSB.

FAA proposed the $10,000 civil penalty in August 2011 against Raphael Pirker for acting as pilot in command of a Ritewing Zephyr UAS for compensation without possessing a pilot certificate. 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, however, appealed the decision to the NTSB, arguing there is no valid rule in the Federal Aviation Regulations covering model aircraft flight operations. While FAA argued that model aircraft by definition are aircraft, NTSB says such an “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 aircraft. 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.”

NTSB further notes that Congress has directed FAA to develop a plan to integrate civil UAS into the national airspace system (NAS), and “it is a reasonable inference that this language shows that, at the time of the enactment of the 2012 act, the legislators were of the view there were no effective rules or regulations regulating model aircraft operation.”

The NTSB decision finds that FAA guidance “are not a jurisdictional basis for asserting Part 91 FAR enforcement authority on model aircraft operations” and at the time of Pirker’s operation, “there was no enforceable rule or FAR regulation applicable to model aircraft or for classifying model aircraft as an UAS.”

The decision comes as FAA has been grappling with how to safely integrate UAS into the NAS. “The agency is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground,” FAA says in announcing it would appeal the decision.

The Association for Unmanned Vehicle Systems International (AUVSI) says the decision “underscores the immediate need for a regulatory framework for small UAS.” FAA had hoped to release the notice of proposed rulemaking in early 2014.

“Our paramount concern is safety,” adds AUVSI President CEO Michael Toscano. “We must ensure the commercial use of UAS takes place in a safe and responsible manner, whenever commercial use occurs.”