[UPDATE Dec. 2, 2016: For the first time ever, the FAA has granted a waiver to a freelance drone journalist, to flying within a TFR — the one imposed over the Standing Rock protest. See Former NTSB Member John Goglia’s “FAA Reverses Course, Grants Drone Journalist Permission To Fly in No-Fly Zone Over Standing Rock.”]

---

The FAA has imposed a 4-nautical mile Temporary Flight Restriction, (“TFR”), in airspace up to 3500 feet above sea level, over the Standing Rock Protest in North Dakota. The land in that area sits approximately 1600 feet above sea level, meaning about 1900 feet of the sky above the protest is off limits to any aircraft other than those permitted to fly — namely, aircraft in support of the law enforcement activities.

Neither the mainstream media, nor citizen journalists, nor activist hobbyists may fly in that area to document what law enforcement is doing. In essence, a “giant tarp” has been laid over the site, allowing law enforcement to act with impunity and without any witnesses. There is something very troubling about that, especially given the widespread accounts of militaristic law enforcement tactics, many of which have already been documented by drones.

Let me make it clear that I am not anti-law enforcement. I work with law enforcement on a regular basis, and many of my friends are local, state and federal law enforcement members. I simply do not consider the behavior of the law enforcement members at Standing Rock to be acceptable, or representative of professional law enforcement.

It does not take a degree in rocket science to realize the effect of the TFR is that it blocks any documentation of the protest from the sky. Whether that is also the reason it was requested and granted is a matter of opinion, of course. In this writer’s opinion that is unquestionably the reason. It’s another Ferguson-style TFR, where a TFR was requested and imposed specifically to bar media coverage. (The FAA has denied that of course, but the transcript indicates otherwise.)

What is not a matter of opinion is what the law requires for the issuance of a TFR. A TFR is issued by the FAA after it reviews and approves an agency’s request for one. The federal aviation regulation that governs the issuance of TFRs is FAR 91.137. In this instance, the FAA has used the most strict of the three degrees of flight restrictions available — 91.137(a)(1) — the relevant portion of which reads:

91.137 Temporary flight restrictions in the vicinity of disaster/hazard areas.

(a) The Administrator will issue a Notice to Airmen (NOTAM) designating an area within which temporary flight restrictions apply and specifying the hazard or condition requiring their imposition, whenever he determines it is necessary in order to -

(1) Protect persons and property on the surface or in the air from a hazard associated with an incident on the surface;

. . .

The Notice to Airmen will specify the hazard or condition that requires the imposition of temporary flight restrictions.

(b) When a NOTAM has been issued under paragraph (a)(1) of this section, no person may operate an aircraft within the designated area unless that aircraft is participating in the hazard relief activities and is being operated under the direction of the official in charge of on scene emergency response activities.

Note that FAR 91.137 requires that the FAA “specify the hazard or condition that requires the imposition of temporary flight restrictions.” Here’s the text of the NOTAM that accompanies the TFR:

FDC 6/1887 ZMP ND..AIRSPACE CANNONBALL, ND..TEMPORARY FLIGHT RESTRICTIONS WI AN AREA DEFINED AS 4 NM RADIUS OF 462610N1003752W (BIS164019.6) SFC-3500FT MSL EXCLUDING AN AREA DEFINED AS .3NM RADIUS OF 462515N1003751W (BIS164020.5) SFC-2000FT MSL FOR LAW ENFORCEMENT OPERATION. PURSUANT TO 14 CFR SECTION 91.137(A)(1) TEMPORARY FLIGHT RESTRICTIONS ARE IN EFFECT. ONLY RESPONSE ACFT IN SUPPORT OF THE LAW ENFORCEMENT ACTIVITY UNDER THE DIRECTION OF THE NORTH DAKOTA TACTICAL OPERATION CENTER AND ACFT APPROVED BY ATC IN COORDINATION WITH THE DOMESTIC EVENTS NETWORK ARE AUTHORIZED IN THE AIRSPACE. NORTH DAKOTA TACTICAL OPERATION CENTER TELEPHONE 701-667-3224 IS IN CHARGE OF ON SCENE EMERGENCY RESPONSE ACTIVITY. MINNEAPOLIS /ZMP/ ARTCC TELEPHONE 651-463-5580 IS THE FAA COORDINATION FACILITY. MEDIA CONCERNS REGARDING THIS TEMPORARY FLIGHT RESTRICTION SHOULD BE DIRECTED TO FAA PUBLIC AFFAIRS THROUGH THE WASHINGTON OPS CENTER AT 202-267-3333. 1611260000-1612022359.

The only language in the text of the NOTAM that even remotely resembles the specification of a hazard or condition, is the phrase “FOR LAW ENFORCEMENT OPERATIONS,” and I was able to confirm with an FAA spokesperson yesterday, that “FOR LAW ENFORCEMENT OPERATIONS” is, in fact, the specified hazard or condition for the TFR.

Assuming that the FAA does not consider law enforcement operations themselves to be a “hazard,” (which ironically is the case at Standing Rock), it must consider those operations to be a “condition.” Under FAR 91.137, that condition must also be the reason specified to support the issuance of the TFR to “[p]rotect persons and property on the surface or in the air from a hazard associated with an incident on the surface.”

What condition about “law enforcement operations” would present a hazard to persons or property on the surface?

Well, law enforcement is shooting drones out of the sky — eight of them as of this writing. Aside from being a federal felony, shooting drones (which are “aircraft”), from the sky most certainly presents a hazard to persons or property on the surface because of a universally-recognized law — gravity. However, that particular hazard, created solely by law enforcement, could be easily eliminated if they simply stopped shooting down drones. Law enforcement at Standing Rock is also flying aircraft, (displaying altered registration numbers in violation of federal criminal law), at extremely low and unsafe altitudes over those protesting against the pipeline, arguably in violation of FAR 91.13, which prohibits careless and reckless flight.

What condition about “law enforcement operations” would present a hazard to persons or property in the air?

Well, if they are flying carelessly or recklessly, that would certainly present a hazard. Intentionally descending upon other aircraft (the lower flying drones) would also present a hazard. Flying in areas where they know drones are flying would present a hazard, especially when FAR 91.113 requires all pilots to “see and avoid” other aircraft, rather than see and encounter them.

Thus, it appears that “law enforcement operations” is the only condition associated with the incident on the surface that presents any hazard to persons and property on the surface or in the air. That being the case, perhaps law enforcement aircraft, and only law enforcement aircraft, should be barred from flight over Standing Rock.

August 29 has arrived, and FAR Parts 101 and 107 are in effect. The FAA will be holding a media briefing today at 11:45 EDT, which will be live-streamed. In the meantime, the FAA has gone “live” with its Part 107 Waiver/Airspace Authorization Requests page on its site, and has added “Remote Pilot Certification” to IACRA. It has also posted “Performance Based Standards, which provides some insight into what the FAA will be considering in approving or denying Part 107 Waivers.

Editor’s note: The FAA has since confirmed Loretta Alkalay’s interpretation. See: Attention, Hobby Flyers: Come Monday Some Of You May Need An FAA Drone Pilot Certificate. Yes, Really., John Goglia, Forbes, August 24, 2016.

---

 

With all the media attention focused on the new commercial small UAS rules finally issued by the FAA last week, scant attention has been paid to the changes made by the same rulemaking effort to hobby or recreational flying regulations. But the changes are significant. And worrisome.

The FAA has added model aircraft flying requirements to Part 101 of the Federal Aviation Regulations, adding recreational drone flying to already existing rules for moored balloons, kites and so on. The new regulations basically incorporate statutory language from Section 336 of the FAA Reauthorization and Modernization Act of 2012. But the incorporation is not a simple transfer of statutory requirements to regulatory form. That is because the statutory language of FMRA Section 336 was never directed at model aircraft flyers but at the FAA: “…the [FAA] may not promulgate any rule or regulation regarding a model aircraft…if”, the statute then lists the very requirements that have now been made regulatory. So a requirement that previously only applied to the FAA has been made a regulatory requirement binding on model aircraft flyers.

I would argue that this new rule — disguised as a reiteration of a Congressional mandate — in fact violates the proscription on promulgating new rules. But the likelihood of someone challenging this rule is remote. This means that model aircraft flyers are considered to be operating under Part 101 — instead of Part 107 with its requirement for a remote pilot certificate — only if they can meet each and every one of the specific requirements that Congress enumerated as prohibiting FAA rulemaking:

(1) the aircraft is flown strictly for hobby or recreational use;

(2) the aircraft is operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization;

(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;

(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and

(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

Failing to meet anyone of these requirements, even unintentionally, could expose a hobby flyer to FAA penalties for violating Part 107. Yes, that’s correct. By FAA’s enforcement reasoning, if you don’t meet a Part 101 requirement you will be deemed to be required to operate under Part 107 – which if you happen not to hold a Part 107 certificate or meet the other Part 107 requirements, will subject you to an $1100 per regulation per flight civil penalty.

One concern I have is how exactly do you know whether you’re flying “in accordance with a community based set of safety guidelines” or “within the programming of a community-based organization”? Everyone assumes the AMA fits the CBO definition but the problem is there is no CBO definition. And what if you don’t want to be an AMA member and belong to a different drone group?

The FAA states in the rule’s preamble that a definition of a CBO is beyond the scope of this rulemaking. So that leaves all us hobby flyers uncertain as to whether we will be able to continue to fly our model aircraft as hobby flyers once the new Part 101 and 107 rules go into effect in August.

I obtained a copy of the May 2016 version of the FAA’s “Summary of Major Provisions Under 14 CFR 107,” which reveals some changes that have been made to the originally proposed NPRM. Note that this is a May 2016 Summary, and that there might have been further changes made to the NPRM since the publication date of this document.

• The minimum age for a Remote Pilot in Command is now 16-years-old;
• The maximum altitude has been changed to 400 feet AGL;
• There is a read, speak, write and understand English requirement; and
• Current Part 61 manned aircraft certificate holders will only have to take and pass an online test (see screenshot below).

The prior (February 2015) version of this Summary is posted publicly online here.

At this writing, the FAA has granted over 5,000 Section 333 Exemptions, and over 4,000 petitions sit in a queue, awaiting the FAA’s “careful inspection,” which amount to little more than “rubber stamping.” After all, the only requirements for being granted a 333 is that you submit the proper paperwork and have a pulse. If you are currently awaiting your grant, you’ll get it — eventually. It takes months and months but everyone is granted one. Remember, I even got one for a paper airplane.

However, once you receive your grant, will you be able to use it? Remember, the grantee can be anyone (or any company). But the person who actually flies the drone must be a licensed manned aircraft pilot, and they must be current. Does this describe you? If so, you yourself may legally fly commercially under your 333. If not, you must find (and presumably pay) a licensed and current manned aircraft pilot to fly your drone for you.

Even then, you’ll likely not benefit from it, since the myriad of onerous conditions that accompany 333s make it completely impractical — indeed nearly impossible — to operate a drone commercially. Even the FAA’s own NPRM suggests that many of the 333 conditions are entirely unnecessary. Its proposed Part 107 presents far fewer barriers to fly commercially. Unlike a 333, Part 107 proposes no pilot license or medical certificate requirement, no spotter requirement, no 500 buffer from any structure requirement and no NOTAM requirement.

Moreover, despite its claim of illegality, the FAA has never attempted to enforce against anyone solely for operating a drone commercially without a 333. Jason Koebler of Motherboard FOIA’ed all of the FAA’s enforcement actions, and they reveal the agency has never initiated a single enforcement action based solely upon commercial operation. Instead each was based on an alleged violation of some existing FAR, mostly FAR 91.13 (careless/reckless operation). Why isn’t the FAA enforcing against something it claims is illegal? They know there is no legal basis for that claim, and that they will lose.

So why bother getting a 333 now? You’re better off waiting until Part 107 is final. It might not be perfect, but it’s far better than a 333, and it’s likely to become final well before you ever see your 333 granted. In the interim, it appears that as long as you operate safely and responsibly — meaning don’t violate FAR 91.13 — you may fly for pleasure or for profit without the threat of FAA enforcement action.

As always, nothing I write is intended to be, and should not be considered legal advice.

In the upcoming months, the NPRM is expected to become final. At that time, and for the first time ever, there will be actual codified FAA regulations applicable to drones. Since 2013, this site has expressed the fact that (with very limited exceptions), there have been no currently enforceable federal statutes or regulations regarding drones that apply to the general public.

Upon finalization of the NPRM, this will no longer be the case. However, even after the rules are final there will remain many legal issues, such as what they mean and how to comply. There will be cases brought and interpretations made. There are and will continue to be state statues and local ordinances that raise issues. In short, the legality of drone operations will not be entirely settled simply because the the NPRM is final.

This is why Drone Law Journal will transform from the single page that it is, to posts about these legal issues. I have also invited a number of prominent individuals in the “drone world” to be occasional contributors to the site, so that the reader can benefit from their unique knowledge and experience.

I look forward to providing you with interesting and useful information about drone law from this point forward. If you wish to be alerted whenever there are new articles posted, subscribe in the column to the right.

In the meantime, here is the page you are used to seeing.

On February 11, 2016, Illinois Congressman Rodney Davis introduced an innovative Micro Drone amendment to the AIRR Act, which is the latest FAA Reauthorization Act. The amendment creates a new "Micro UAS Classification" of unmanned aircraft systems, and would permit non-hobbyists to operate the smallest and the safest drones under regulations that are safety-oriented, but contain simplified and streamlined requirements and restrictions. The House Transportation & Infrastructure Committee voted to accept the Micro Drone amendment and approved the entire AIRR Act, as amended.

The Micro Drone amendment does not deregulate drones. Quite the contrary, actually. The amendment proposes replacing a scheme of "regulation by exemption" that discourages compliance, with regulation that encourages it. It would make the skies safer by regulating micro drone operations in a manner that all pilots could easily understand and abide by, by replacing the complex and onerous existing path to non-hobbyist flight with a streamlined, easy-to-understand, sensible and safety-oriented regulation.

Micro drone operations would no longer require the granting of a Section 333 Exemption, which is a lengthy process that can be expensive to obtain, and which contains 31 convoluted and burdensome conditions (even for my 19-gram paper airplane). The Exemption conditions alone are, more often than not, an impediment rather than an advantage. As such, Section 333 Exemptions actually discourage the very safety culture that is sought, because the more burdensome compliance is made, the less likely it is for people to comply. This is also why only a fraction of those operating micro drones today as non-hobbyists even bother to seek an Exemption, regardless of the fact that (in the eyes of the FAA at least), they are operating in violation of the law. 

Under the amendment, a "micro drone" is defined as one that weighs 4.4 pounds (2 kg) or less, including any payload it carries. This weight is based upon the same risk-based weight classifications other countries have embraced, such as Australia, Canada, and Mexico. Micro drones would include all consumer drones of the 3D Robotics Solo size and below. It would not apply to drones that weigh more than 4.4 pounds, the operators of which would (for now at least) have to either petition for a Section 333 Exemption, wait until the NPRM is final or fly as a non-hobbyist without an Exemption, and be labeled an "outlaw" by the FAA.

Also under the amendment, to fly a micro drone as a non-hobbyist, the pilot would not be subject to the airman certification requirements of 49 U.S. Code § 44703, 49 U.S. Code § 44711 or 14 CFR Part 61. Micro drone pilots would not be required to pass any aeronautical knowledge test or meet any age or experience requirements. Micro drones would also not be subject to the airworthiness certification requirements of 49 U.S. Code § 44711, or any other law, rule, or regulation pertaining to the certification of an aircraft. All micro drone pilots would, of course, still be required to register with the FAA, under its new registration procedures.

Micro drone pilots would remain subject to regulation with 5 simple rules:

1. fly below 400 feet above ground level;
2. fly no faster than 40 knots;
3. fly within visual line of sight;
4. fly only during daylight hours; and 
5. stay at least 5 statute miles from the geographic center of a tower-controlled airport, or airport denoted on a current FAA-published aeronautical chart, unless ​​the pilot provides prior notice to the airport operator and ​​the pilot receives, for a tower-controlled airport, prior approval from the air traffic control facility located at the airport.

Simply put, there is nothing bad in this amendment, and everything it proposes is good. It would allow the countless beneficial non-hobby drones operations — including commercial, educational and humanitarian — to openly flourish, rather than be conducted surreptitiously for fear of FAA enforcement action. It would also benefit the FAA, which is already burdened with reviewing and granting thousands of backlogged Section 333 Exemption petitions, the usefulness of which is widely questioned.

Take a moment to read the amendment. It's short, simple and easily understood. It presents no artificial barriers, nor any vague language that would be subject to tenuous interpretation. In short, the micro drone amendment proposes exactly what it should — it advances innovation, promotes safety, encourages compliance and would ensure the aviation leadership role America has always enjoyed.