We have previously reported about the legal limbo caused by the FAA issuing a penalty of $10,000 to Raphael “Trappy” Pirker, a Swiss pilot for a “reckless flight” at the University of Virginia in 2011. Pirker decided to fight the decision and originally won his court case, in which a federal judge ruled that model aircraft aren’t technically “aircraft” subject to the FAA’s existing regulations at the time.

The NTSB appeals board disagreed later, saying that the federal “definitions on their face do not exclude even a ‘model aircraft’ from the meaning of ‘aircraft.’”

The decision is close to what the FAA originally pushed for,   which is so broad that perhaps frisbees and baseballs could be considered “aircraft.”

The devastating part of this decision for drone enthusiasts was that The FAA’s existing aircraft regulations cannot be reconciled with its guidelines for model aircraft flights.   The statute that the FAA used to fine Pirker suggests that any flight by an “aircraft” below 500 feet can be considered reckless. The FAA’s model aircraft guidelines, meanwhile, suggest that any flight over 400 feet by a drone is unsafe and potentially illegal.

Since our previous report on the issue, the has FAA missed the deadline it previously announced, stating that small drone regulations will be available for debate by the end of last year.

Raphael "Trappy" Pirker

Raphael “Trappy” Pirker

The Settlement

According to the official statement Team BlackSheep lead pilot Raphael “TrappyPirker has settled the civil penalty proceeding initiated by the U.S. Federal Aviation Administration in 2013 concerning his flight of a styrofoam Zephyr II model aircraft (or “drone”) at the University of Virginia in October 2011. The favorable settlement, involving a payment of $1,100 does not constitute an admission of any of the allegations in the case or an admission of any regulatory violation.

The statement also says: The decision to settle the case was not an easy one, but the length of time that would be needed to pursue further proceedings and appeals, and the FAA’s new reliance on a statute that post-dates Raphael’s flight, have diminished the utility of the case to assist the commercial drone industry in its regulatory struggle.

So the case is not important anymore because legislation forming today will regulate a different legal environment compared to the one at the time of Pirker’s flight. So it’s not a precedent case anymore.

To settle the case for about one tenth of the original sum was a logical one from Trappy and I can’t blame him doing so. Moving forward with the case for years would have meant at least five figure legal costs unless some lobby group backing the costs. TBS (Trappy’s company) could also probably afford to cover legal costs, but I assume the FAA is now a bit beyond the original case and is trying to concentrate on forming legislation that will ensure a sufficient level of safety without putting at least the hobby grade part of the industry in a bind. I may be a bit naive, but that is what I hope for. Commercial is a different issue, there is too much money involved and the recent new exemptions the FAA issued for commercial use show that lobby power (and maybe common sense) is being concentrated towards the issue.

At least the fact that the FAA is ready to settle for almost one tenth of the amount of the original penalty indicates that they are “backing off ” Trappy to concentrate on whatever they are focusing on now. My fear is that we will find out soon and the outcome might not be as favorable as we all would hope for.

Same as last year when the NTSB overturned his case, I have again reached out to Trappy for comment. Here is his view of the situation:

DT: You have settled this for peanuts. Does this mean that you are no longer fighting this for the entire FPV community?

Trappy: Brendan and I were prepared to fight this all the way. However, the case turned out to have very little significance to the FPV community since the re-interpretation of 2014.

DT: What kind of message does this send to people do you think? The FAA willing to settle for one tenth of the amount shows that they also feel they have gone a bit overboard. Especially that you have not admitted to any wrongdoing. What do you think?

Trappy: The message this should send is that the FAA is not capable of effectively policing the airspace for drones and that there really are no laws in place, only interpretations and policy statements. The FAA have probably spent north of $300,000 in taxpayer money to collect $10,000 in fines. In the end, both parties agreed to settle out of court for a fraction. It was an expensive lesson for them and they almost created a complete absence of guidances in the process. This is not the way to effectively police drones, and sensible rules need to be put in place to finally allow people to fly drones commercially without fear of prosecution.

I can’t help but agree.

Original Trappy Interview

To put the new situation into context, here is the original interview I made with Trappy back in November of last year.

After the NTSB ruling, we have covered the story and went on to try to provide some background information on Trappy. Unsurprisingly, the comments on our posts here on the site and in social platforms have been extremely polarized. Some of you thought that Trappy is a hero and he is fighting his case for the entire drone community. Others saw Pirker as the main reason of the controversy and the looming fear that our hobby could be outright banned. So we reached out to Trappy and asked for an exclusive interview to hear his side of the story. We wanted to ask you all the questions we thought you guys had on your mind and also wanted to clear up claims that emerged in the posts.

Dronethusiat (DT): Reading the comments by people in social platforms and our sight, we see that some people think you that you are a hero fighting for their rights to fly, while others are on the opinion that you are doing everything to ruin their hobby. What are your thoughts on this?

Trappy:  It’s pretty troubling to see that people take the stands of defending the FAA in this case and kind of try to blame TBS (Team Black Sheep, Trappy’s company) for stirring the pot. All of the legal frameworks that were used to fine me were put in place way before TBS even existed, before we even flew FPV. The policy statements that they are using to fine us were written in to 2007, so and the first FPV flight happened somewhere around late 2008. I don’t know, but it just took the FAA to find somebody that they wanted to fine and there isn’t any new kind of law that was created as a reaction to any of our flights.

DT: Maybe this was just the right time for them being able to find the right scapegoat or in this case a “scapesheep” :).

Trappy: Yeah, we were at the forefront of the whole FPV movement, so any heat that was going to come towards FPV was going towards us. And this happened in many instances and in many countries as well. We kind of became legal test cases and in the US, we just thought that the allegations were ridiculous enough to justify defense and we defended against them pretty successfully in the first instance. Now we’ve lost on the appeal, but what people need to understand is we’ve just now gotten to the point that the actual fine can be discussed. Our initial defense was that we tried to get the entire case thrown out by the merits of the law, based on that there were no existing laws in place to actually fine any drone operator. This has been overturned by the NTSB ruling, so now this case going to go into a court where we are actually going to discuss how reckless the flight was and what fine would be justified for it.

DT: Before we get into how reckless the flight was, can I ask you something? Could you have just walked away from the fine flipping the fingers at the US authorities as you are a Swiss citizen living in Austria?

Trappy:  Yes, the FAA has no jurisdiction over where I am right now, nor does it have any jurisdiction in Switzerland or Austria. That would have been the most easy way out saying: Yeah, fine me whatever you want. We can add a zero to the number, it doesn’t matter because they can’t collect the fine anyway. The second easiest one would have been based on the fact that I was a student back then and I didn’t make any money. I actually had an offer on hand to get the fine severely reduced just based on the merits of me not having any money and usually governments do not have the right to collect fines on non-criminal charges that would bankrupt the person. At least this is the case here in Europe. So based on the amount of money I had on my bank account, the fine would have been maybe two or three meals at Mc Donald’s. I just thought that this is something that we should just not bow down to because it is one of the most influential aviation agencies in the world and they seem to be hell bent on preventing what I like to call drone democratization. So it’s more about giving it to the people for commercial benefit or for just pleasure and they seem to be hell bent on preventing that. So I think it was a just cause to fight.

DT: So do you think that they don’t want people to fly drones for hobby or even more so for commercial purposes because there is just too much money in it and they want to make sure that they control access to it? Is the kind of usual political lobby thing? 

Trappy: There is definitely politics involved. I don’t want to say that the FAA is financially motivated because I don’t think that the people empowered there would benefit from this. I think it’s more like a who owns the skies or who gets to say what happens kind of thing. It’s just an authority thing. If you were the person in charge of the airspace and everything that flies in it, you want to have a lot more power that encompasses drones as well. Especially when seeing that drones will be more and more prevalent in the future.

DT: So this could work in a similar way as in big corporations, they might just trying everything to save their jobs, right?

Trappy: Yeah, exactly. In fact, a lot of people ask us why we never ask for permission for our flights. That’s basic psychology. If was in charge of making that call, I would never allow any kind of flight because what do I personally have to gain by allowing somebody else to fly. Not just over people, but anywhere for that matter. There is always a risk involved, so why should I say yes. So the answer is always going to be no. We tried that many times and answers was always no, so asking for permission is not going to get you anywhere with a technology that is not really regulated or is not very well understood at the moment.

DT: An important question that leads us towards the reckless flight situation. Are you a crazy tycoon that just does these stunts to promote his own company? 

Trappy: I wish that was the case. We do fairly well with TBS and we operate a fairly large drone manufacturer, but this is just me taking some time of going to some place and having fun with what I like doing and what I like doing just happens to be my job as well.

In the case of the Virginia flight, it was a totally different case. I was a student back then and these guys asked me to do a flight for them at the University of Virginia so they could use the footage to make a marketing video. So back then I was not involved in the whole manufacturing of the drones. The aircraft was a TBS Zephyr or at least a prototype of it and the company did not exist back then and everything I did was paid for by my own money. The money that I made on the flight in Virginia went straight back into better motors or batteries. That was the life I lived back then. I was a student at the University of Zürich and I had a side job, but really not that much money. Nowadays it’s a little bit different, we don’t fly first class but at least we can afford economy class tickets to just about anywhere we want to go and want to fly. Whenever we do have time, we love to go out and just shoot great videos from around the world. Of course, it’s also a kind of promotion for our business, but we don’t do that with this in mind. We go there and if no good video comes out of it, than it’s not a big deal.

DT: This is the other thing that a lot of people mentioned, the fact that you actually got paid to shoot that video. What kind of promotion was it?

Trappy: The idea was to shoot a promotional video for the Medical Campus of the University of Virginia. It was done by an advertising firm that was right up my alley, so they fully understood what we were doing and the kind of thrills from doing fast flights on closed obstacle courses and the near misses. They were after the visuals and I don’t think I could have done the flight if it was not for hire. It requires permission from the people on the ground, we had contact with air traffic control. Every hospital has a helipad, so we had to have clearance from them to take off and land for every flight that we did. We also had to be in touch with campus police and they were blocking off roads whenever possible. So all of this was only possible because it was a paid job and not a gig for hobbyist purposes. If you went there asked for a permission to all this for your own personal pleasure, they would not have allowed it.

DT: So it was a controlled situation? For example, when the guy who had to duck in front of the aircraft when it enters the roundabout was expecting it to come? 

Trappy: If you look at the video, you can see that he is actually jumping at the plane trying to catch it. Because the space was very limited, what we tried to do is a catch landing. He was so surprised about how the aircraft came in so he kind of misjudged his jump and at that point I realized that is not going to catch it, so the safest things was to just let it fly into the bushes behind. It’s just a foam airplane, and the guy was one of my three spotters so nothing really happened.

DT: Does the youtube video play at regular speed and how reckless do you think the flight was among the circumstances? 

Trappy: The video plays at regular speed, we did not speed it up. As to the recklessness of the shoot, I don’t think it was reckless at all, otherwise I would not have contested the fine. If you want to look at from the danger point of view, I don’t think anyone around the aircraft or in the air were in danger. I was very well trained and we spent many months preparing. Not for this particular flight, but for similar kind of flights. If you look at our history, you can see that we have done many similar flights, through tunnels with sudden changes in lighting conditions and we were totally prepared for it. If you look at the video, you can see that if this kind of shoot would have been attempted by anyone untrained, it would not have ended very well.

DT: So one last important thing. The aircraft you were flying was not a drone, but a fixed wing foam aircraft? Is there a difference in the impact if it hits someone?

The TBS Zephyr

The TBS Zephyr

Trappy: Yes, it was a TBS Zephyr. It weighs about 1.5 kilos.  Of course if it hits someone directly with the body than the entire force would go towards that person. If it hits someone with the wings, the whole thing deflects. I’ve hit myself plenty of times with my foam body fixed wing and I am still around. It’s not something you feel the next day and it’s not like those quadcopters with spinning blades. All the motors and the dangerous equipment are as far back as possible for maximum protection.

DT: Ok, so what do you expect no to happen on the legal front, what’s next?

Trappy: I can’t really talk about our defense at this point. Right now, the case has only just started. I think it’s still a cause worth fighting because now the question remains: what is reckless? I think if we can influence that decision, I think it would be a great benefit for everybody flying in the hobby. Also, maybe we can influence some ruling on the commercial side. Brendan Schulman has been fighting a lot of different cases that are now pending before the DC Circuit. So there are a lot of things to win from it and not much that the drone community can lose. I mean the only thing that’s up for stake for anybody here is me and my ten thousand dollars.

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The Message of Pirker's $1,000 Settlement With the FAA
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The Message of Pirker's $1,000 Settlement With the FAA
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Raphael "Trappy" Pirker settled his $10,000 case for and alleged reckless flight back in 2011 at $1,100 with the FAA. He comments on what message this should send.
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