By Peter Sachs, Esq.
Nothing on this website is intended to be, nor should anything here be considered legal advice. Although I am an attorney, I am not your attorney. I do not seek to represent you or anyone else. Nor will I. This website in not intended to be a solicitation for business.
Original publication date: December 14, 2013
This website relates to the remote-controlled model aircraft variety of drones, not military drones.
To most people, the word drone connotes a weapon of war. In part because every article you read and every television story you inevitably display this photo of a military drone. While the word drone finds its roots in the military, (where they were originally used for target practice), in reality a drone is any of a number of types of unmanned flying craft— some used in warfare, others used for pleasure or profit. For the purposes of this website, the word drone refers to the remote-controlled model aircraft variety, (“RCMA”), and nothing else.
The federal government has no authority whatsoever to regulate the operation of remote-controlled model aircraft.
Despite what you might have seen, heard or read to the contrary; despite the FAA’s claim that it has authority over RCMA; despite the FAA having sent several cease and desist letters, (obtained recently via FOIA request by Attorney Patrick Mckay), to persons who were operating RCMA for commercial purposes, there exists not a single federal statute, not a single federal regulation and no case law that in any way regulates the operation of RCMA.
Federal statutes, regulations and case law concerning RCMA do not exist.
In the absence of any federal statute, regulation or case law that prohibits a particular activity, that activity is completely legal. That’s how the law works. Nothing is illegal solely because a government agency claims that it’s illegal. There must be something engrossed in our bodies of law that actually states that it is illegal. Since there is nothing at all in our bodies at law that make it illegal, at this time, RCMA are completely unregulated federally, and anyone is free to operate them in any manner they wish, whether for pleasure or profit, regardless of what the FAA might claim.
Please note that I am not asserting any opinion as to whether RCMA should ever be regulated. Rather, I am asserting that at this time, they are not federally regulated. Nor will they be anytime soon. Under Section 336 of the FMRA of 2012, Congress has dictated that the FAA will not be permitted to “promulgate any rule or regulation regarding a model aircraft.”
But the same Act will exclude RCMA’s that are used commercially from the definition of RCMA, and the FAA will be able to promulgate rules and regulations for RCMA used commercially. Thus the exact same make and model of RCMA will ultimately be regulated if used commercially, and unregulated if used non-commercially. Since the FAA’s primary reason for existence is safety, it begs the question how the exchange of money is even remotely related to safety.
Remote-controlled model aircraft are not “aircraft,” as defined in federal statutory and regulation language.
The federal statutes that govern aviation are found in Title 49 Section 44101, et seq. of the US Code. Under 49 USC 40102, “aircraft” means, “any contrivance invented, used, or designed to navigate, or fly in, the air.“ The federal regulations that pertain to aviation are found in 14 CFR 1.1, et seq. Under 14 CFR 1.1, “aircraft” means, “a device that is used or intended to be used for flight in the air.” Both the statutes and regulations define aircraft similarly, and in extremely broad terms. Taken literally, these definitions would include many things.
Take for example, paper airplanes. Paper airplanes are “contrivances” or “devices,” and they are “designed to…fly” or “intended…for flight” in “the air.” Indeed, that’s their sole purpose. They clearly meet the literal definitions of aircraft. Therefore, paper airplanes should only be operated, if they are registered, (49 USC § 44101, 49 USC § 44103 and 14 CFR Part 91.203); if the person operating them holds a proper pilot certificate and medical certificate (14 CFR 61.3); and if the paper airplane has itself been issued an airworthiness certificate (14 CFR Part 91.203).
Moreover, in the event of a paper airplane crash, the FAA and NTSB would be required by law to investigate (49 USC § 1132). 49 CFR Sec. 831.2, states, in relevant part, that the NTSB “is responsible for . . . all accident and incident investigations . . . where the accident or incident involves any civil aircraft….” (Emphasis added.) A civil aircraft means aircraft other than a public (government operated) aircraft. (14 CFR Sec. 1.1) If a paper airplane is an aircraft, the NTSB must investigate if one crashes.
Yet the FAA does not require paper airplanes or their operators to adhere to aircraft regulations. And the NTSB does not investigate their accidents. Thus, the FAA has never treated paper airplanes as aircraft. Since each and every paper airplane has been operated with open disregard to applicable aircraft regulations, and since the FAA has done nothing to prevent it since its inception, it follows that the FAA simply does not consider paper airplanes to be included in the definition of aircraft. Of course, it would be interesting to hear them argue that they are.*
Now replace the words paper airplane with remote-controlled model aircraft. RCMA are also unquestionably “contrivances” or “devices,” that are “designed to…fly” or “intended…for flight” in “the air.” Yet like paper airplanes, the FAA has never historically treated RCMA as aircraft. RCMA have never been required to be registered; they have never been required to have airworthiness certificates; their operation has never been limited to those with the proper pilot and medical certifications; and the NTSB, in defiance of law, has never swooped in to investigate when a RCMA has hit a tree and crashed. How can the FAA now insist a RCMA rises to the level of being an aircraft for safety reasons, but that same RCMA does not merit an investigation if it collides with the ground?
As is the case with paper airplanes, each and every RCMA has also been operated with open disregard to applicable aircraft regulations, and since the FAA has done nothing to prevent it since its inception, it also follows that the FAA also does not consider RCMA to be included in the definition of aircraft.
Bear in mind that it’s not as if the FAA was suddenly surprised to learn about RCMA, and that not asserting control over them was a mere oversight. RCMA are not a new phenomenon. They far pre-date the FAA’s creation. The FAA was well aware of RCMAs, their characteristics and their capabilities when the definitions of aircraft were adopted. The FAA’s historic and complete noninvolvement with RCM indicates it purposefully eschewed the role of regulator. RCMA are not aircraft because the FAA never treated them as an aircraft.
In fact the FAA recently admitted publicly, that RCMA are indeed treated differently than aircraft. A recent “tweet” from @FAASafetyBrief suggests that FAA certification is in the works.
@FAASafetyBrief – We also plan to weave unmanned aircraft info into future articles, e.g., how to keep it airworthy and certified.
- 10:39 AM – 29 Jan 2014
If the FAA is now stating that it is planning to certify RCMA, by definition certification is not currently required. Since all current civil aircraft must be certified, the FAA is admitting that RCMA are not aircraft.
Suddenly, if used commercially, remote-controlled model aircraft are claimed to be aircraft.
Although no enforceable statute or regulation has been adopted or changed, and no case law has been decided to support it, the FAA is now repeatedly claiming RCMA, when used commercially are aircraft and subject to its authority. It relies on Title 49 and 14 CFR as a basis for its newly claimed power to regulate commercially operated RCMA as aircraft, despite the fact that no language in either the statutory or regulatory definitions of aircraft makes the exchange of money a factor. Nor is the exchange of money found within the language of the very document the FAA had always provide as a courtesy as guidance to RCMA operators— Advisory Circular 91-57. Since RCMA are exempt from registration, pilot certification, airworthiness certification and accident investigation, how does operating them for compensation magically make them aircraft?
The FAA has gone as far as sending some folks what are essentially pretend cease and desist letters in an attempt to scare them into not operating commercially. Since there is no law to back up the FAA’s order to cease and desist, those letters are entirely meaningless; have no force of law behind them; and can be ignored with impunity. Of course one might incur legal fees trying to fight a cease and desist letter regardless of its merit, which explains why those who have received them have self-grounded themselves.
[UPDATE: 02/04/2014] Recently released copies of FAA “cease and desist” letters, obtained via FOIA request submitted by Attorney Patrick McKay, indicate the FAA is indeed, as I stated in the paragraph above, lying about the law in these letters, and are in fact pretending to have authority over RCMA.
Enforceable Law (versus non-Law or non-enforceable law.). Law, with respect to aviation, exists in three forms: federal statutes, federal regulations and federal case law, where the statutes and/or regulations have been interpreted. If no law exists in any of these forms, then no such law exists. One need not obey any law that does not exist.
The United States Code, Subtitle VII. Federal statutory law is enacted by Congress and found in the United States Code. The federal statutes that govern aviation are found in Title 49 USC Sec. 44101, et seq., and have the force of law. Current federal aviation statutes find their roots in the Federal Aviation Act in 1958, as revised. The Act basically provides the big picture with regard to aviation. Most importantly, it established the FAA, and granted it power to oversee and regulate matters relating to the safety and use of American airspace though the promulgation of regulations. As such, although the US Code addresses aviation law in broad terms, the details of aviation laws are actually found in the FAA regulations.
The Federal Aviation Regulations Federal regulations are promulgated by the FAA and found in the Code of Federal Regulations. The federal regulations that pertain to aviation, (the “FARs”), are found in 14 CFR 1.1, et seq., and have the force of law. There is nothing in the FARs that concerns RCMA. The FAA cannot just make up regulations as it goes along, to enforce activities that it simply wishes to enforce. There must exist an actual statute or regulation for the FAA to enforce. The FARs are the only federal regulations that exist pertaining to aviation, and are the only regulations that are legally enforceable. You’ll not find any that concern RCMA. You will see regulations that apply to other craft, such as balloons, rockets and even kites. So the FAA clearly contemplated flight-capable craft other than airplanes and helicopters when it adopted the current regulations. If the FAA had intended to regulate RCMA as well, it would have done so. It didn’t.
Federal Case Law. Federal case law is, in a nutshell, the collection of decisions made by adjudicative bodies concerning FAA enforcement actions. For example, the FAA may issue an order suspending a pilot’s certificate or it may impose a civil penalty. Enforcement actions may be appealed by way of a hearing before an NTSB administrative law judge. That judge’s decision may then be appealed to the NTSB Board. Finally, the Board’s decision may be appealed to the U.S. Court of Appeals. Whatever the final decision in the matter is, at whichever stage the controversy ends becomes precedent, and that decision essentially has the force of law under the doctrine of stare decisis. At this writing, there is no case law concerning commercial RCMA use. There will be soon.
In the first FAA enforcement action against an operator of an RCMA, Administrator v. Raphael Pirker, NTSB Docket CP-217 (July 18, 2013), the FAA is trying to fine Raphael Pirker, (who is being defended quite capably by Attorney Brendan M. Schulman who posts on Twitter under @dronelaws), for “reckless operation” of a remote-controlled model aircraft under FAR Part 91. Pirker was hired by the University of Virginia to obtain aerial video of its campus.
Although the FAA alleged in its July 18, 2013 Order of Assessment, (its Complaint), that Pirker was flying for compensation, interestingly enough, it did not use that allegation as a basis for the proposed assessment of a civil penalty of $10,000.00. Instead it relied on Pirker’s alleged violation of FAR 91.13(a) that states, “no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another” as the basis.
If commercial use is in fact illegal, why didn’t the FAA also base its Complaint on Pirker’s alleged commercial use? Well, it couldn’t because there are no regulations that prohibit commercial use, and it knew in the absence of any such regulations, basing its Complaint on commercial use wouldn’t fly. (Pun intended.)
However, by not using commercial use as a basis of the proposed civil penalty, and relying solely upon an allegation of reckless operation, the FAA has also essentially admitted in its own Complaint that commercial use is not prohibited. If Pirker prevails, it still won’t settle the specific commercial use issue because that was not a basis of the FAA’s Complaint. However it will settle the overall question as to whether the FAA has authority to regulate RCMA at all, which would, of course, include commercial use.
Non-Law (or non-enforceable law). Now let’s take a look at the stuff that might sound like law, but that is not law at all. A number of folks, including the FAA, mistakenly point to any or all of the following publications as regulations prohibiting commercial use of RCMA. However, not one of the following publications has the force of law, and therefore, none is legally enforceable:
Advisory Circular 91-57, entitled, “Model Aircraft Operating Standards” and published in 1981, is essentially a letter of guidance. Compliance with its language is entirely voluntary and it is merely a list of common sense suggestions, and is not legally enforceable. [Update: Cancellation of this Advisory Circular was requested by the FAA on October 10, 2014 because it claims Section 336 of the FMRA of 2012 supersedes it. The FMRA of 2012, as described below, does not even apply to the public. It applies only to the FAA at this writing.]
The FAA 2007 Clarification is merely a document that clarifies the FAA’s own current policy concerning operations of unmanned aircraft in the National Airspace System. Although it does in fact state that remote-controlled model aircraft may not be used commercially, it’s an Agency policy statement. A policy statement is not legally enforceable.
The FAA Modernization and Reform Act of 2012, specifically Title III, Subtitle B is an Act of Congress and is a law, but it’s one that is simply a list of directives to the FAA. In and of itself it does not compel any person (other than those employed by the FAA whose duties include the promulgation of regulations) to do or not do anything. The Act contains a number of directives to the FAA to develop regulations concerning the integration of unmanned aircraft into the national airspace system. By definition, Congress having directed the FAA to develop regulations means none currently exist. Moreover, these directives apply to the FAA only, not the general public. They are not themselves regulations, and are not legally enforceable.
Unmanned Aircraft (UAS) Operational Approval, which the FAA uses as a definitive guide to the Certificate of Authority process for unmanned aircraft. However, as it reads at it’s top, it’s merely a statement of “National Policy.” And as explained above, a policy statement is not legally enforceable. This document even contains language admitting it’s not legally enforceable. Paragraph 5 reads that it is “not meant as a substitute for any regulatory process.”
US DOT’s Unmanned Aircraft Systems Comprehensive Plan, published in September, 2013, is merely a five-year road map. It is self-described as a list of goals and objectives, to be revised annually, in furtherance of the FAA Modernization and Reform Act of 2012’s directive to the FAA to integrate unmanned aircraft into the national airspace system. An agency’s goals and objectives are not regulations, and are not legally enforceable.
Certificates of Waiver or Authorization. Pretty much everyone seems to think that obtaining a “certificate of waiver or authorization” (“COA”) is required to fly a drone. That’s what the FAA has been claiming for years. However, it’s not required at all. In fact, with respect to public aircraft, (government operated aircraft, such as those operated by police and fire departments), the FAA is not even permitted to regulate airworthiness or pilot qualifications. The FAA can only regulate public aircraft insofar as they interact with all other aircraft, whether civil or public. In other words, the FAA can only legally regulate public aircraft to the extend that they comply with Part 91 regulations.**
Not convinced? The FAA has said so itself:
Because the heart of this issue is the safety and airworthiness of aircraft, I understand why people believe that only the FAA should make such determinations. We are the premier aviation safety oversight agency in the world and I am proud of our record and reputation. But from the very beginning and at all times during the existence of the FAA, there has been a clear statutory distinction between civil and public aircraft operations. FAA has regulatory and oversight authority over civil aircraft operations. Public aircraft operations are conducted by or on behalf of many different government agencies and departments, including state and federal, from the Forest Service and the DOI, to the Justice Department to the U.S. military. By statute, authority for the safety oversight of these operations belongs to the agency or department responsible for the operation. While FAA can and does provide technical support to assist other agencies with their safety oversight responsibilities, the law is quite clear that FAA cannot direct or compel another agency to impose specific safety requirements or force them to meet existing FAA requirements.
So, if you’ve made it this far after reviewing the sources above, you will see that there really are no federal statutes, regulations or case law that applies to RCMA. This is not to say that I believe there should or should not be, or that there will or will not be, but rather that there simply are no such regulations at this writing. My intent is to observe and report on how the area of RCMA law develops.
* Interestingly enough, a business known as PowerUp Toys, now markets a neat little device that attaches to a paper airplane. It has a propeller and battery, and permits a person with a Smartphone to operate it remotely via Bluetooth. If the FAA claims that RCMA are aircraft, this device will place the FAA in the absurd position of having to argue that a paper airplane is now a RCMA, and indeed an aircraft.
** While USC 49 § 44711 states, “[a] person may not— (1) operate a civil aircraft in air commerce without an airworthiness certificate in effect…” and “(2) serve in any capacity as an airman with respect to a civil aircraft,” the same is not true for public aircraft. The FAA cannot require operators of public aircraft to have airworthiness certificates or be operated by certified airmen. And as absurd as it might sound, a police department helicopter need not be airworthy, and it may be flown by a non-pilot.