By Peter Sachs, Esq.
[Originally Published: 12/14/2013; Revised: 03/26/2015]
For purposes of this website, the word “drone” means any flying craft of the “model aircraft” variety and nothing else. Model aircraft are commonly those under 55 pounds, and are typically very much under 55 pounds. Members of the media have unfortunately contributed to some confusion as to the difference between military and civilian drones. Until about September 2014, nearly every news piece displayed a photo or video of a military drone, for any story about civilian drones.
Although much of the media still report inaccurately, or simply parrot whatever the FAA says, some news sources are coming around. For the most part, they no longer show a military drone for a piece on civilian drones. Over the course of 2014, most people have realized that these flying craft will always be called drones. In any case, anyone can call them whatever they wish. The legal issues related to drones do not at all include what they should be called. It’s just a word.
Federal drone law.
In November 2014, the NTSB held (in the Pirker case addressed below), that drones are “aircraft,” as the word is defined under federal statutes and regulations, and therefore, FAR 91.13 (the regulatory prohibition of careless or reckless aircraft operations) applies to drones. Although the FAA asserts that all FARs apply to drones, in the NTSB’s decision, the Board did not expressly hold that any other FAR applies to drones. The relevant portion of FAR 91.13 reads:
“No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”
At this writing, there exist no currently enforceable federal statutes or regulations that apply to the general public other than  FAR 91.13, (in accordance with the NTSB’s November 2014 ruling) and  all FARs that prohibit or restrict all aircraft from flying within certain airspace.
The FAA Modernization and Reform Act of 2012.
The FAA Modernization and Reform Act of 2012 (the “FMRA”), is a collection of orders from Congress to the FAA. Sections 331 through 336 dictate what the FAA may and may not do, and shall or shall not do with respect to drone regulation. But the FMRA applies to the FAA only. The FMRA contains certain drone-specific language that will apply to the general public at some point in the future, but it does not currently apply to the general public.
That’s very important to note. All of what the FAA, and a handful of former FAA attorneys who parrot what the FAA touts as “the law,” is based upon the FMRA, which doesn’t even apply to the general public at this writing.
Within the FMRA is Section 336. It reads:
SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT.
(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—
(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)).
(b) STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.
(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is—
(1) capable of sustained flight in the atmosphere;
(2) flown within visual line of sight of the person operating the aircraft; and
(3) flown for hobby or recreational purposes. (Emphasis added.)
Section 336 would provide “safe harbor” to pilots while flying strictly for hobby or recreation as long as all of the conditions (the underlined portions) are met. This section would apply at some time in the future, however. It does not apply right now.
Right now, the only thing that applies to model aircraft (other than FAR part 91.13 as described above), is Advisory Circular 91-57 (“AC 91-57”), published in 1981. AC 91-57 is a voluntary guidance document. It even says so. It “encourages voluntary compliance.” However it is also sensible and safety-oriented. But it is not law. Note: Section 336 would be codified and therefore be law, under the proposed future FAR Part 107. More on that later.
The June 2014 FAA Interpretation of Section 336.
In June 2014, the FAA issued its Interpretation of the Special Rule for Model Aircraft (Section 336 above). With its Interpretation, the FAA declared, among other things:
- Compensation of any sort is banned. The FAA claims that flying a drone in a manner that is “in furtherance of a business” is illegal even though no currently enforceable statute or regulation exists that would forbid it. (Remember, the FMRA does not apply to the general public.) That includes everything from the obvious (aerial photography) to the less obvious (flight instruction or demonstrations that would further one’s business). Showing drone-obtained video and a company logo simultaneously online or on-air is considered “commercial.” Moreover, drone flights that are “incidental to a business” (which would not be considered “commercial” in a full-size manned aircraft) are considered commercial if done with a drone.
- Flights within 5 miles of any airport may be denied. Providing “notice” alone is no longer enough. You must provide prior notice to ATC or Airport Operations whenever you fly within 5 miles of any airport, heliport, etc. However, ATC may say you may not fly in that location. It is arguable that this amounts to obtaining permission as opposed to simply providing notice. Since the Interpretation doesn’t specify the size of the drone to which it applies, you must call ATC even if it’s a tiny, 1-ounce drone hovering 1-inch above the ground in your backyard.
- Operating a drones using “first person view” (“FPV”) is prohibited. This means you cannot use goggles or any modern “watch it on a monitor” system to fly, or even the long-accepted “buddy box” method where a second person (with a separate controller) observes the drone at all time while the pilot flies. Instead, the pilot’s own eyes must be able to see the drone at all times while flying.
- All existing Federal Aviation Regulations apply to drones. Since the FAA considers “model aircraft” to be “aircraft,” it claims that all Federal Aviation Regulations apply to drones, even though the plain language of Section 336(c) makes it abundantly clear that the definition applies only to Section 336 itself. This arguably means that all Federal Aviation Regulations, even those that cannot logically apply to an unmanned aircraft, apply to drones and the FAA can use any of those regulations for enforcement purposes.
With the Interpretation’s restrictions and requirements above, the FAA has created new regulations pertaining to drones flown for hobby or recreation, which Congress expressly prohibited in Section 336 of the FMRA (see Section 336 above). Nonetheless, as “interpretive rulemaking,” the Interpretation is the only potential “rule” that exists right now other than FAR 91.13 and all FARs that prohibit or restrict all aircraft from flying within certain airspace.
In response to the Interpretation, the public submitted over 30,000 comments. And in August 2014, three separate legal challenges to the FAA’s Interpretation (“Petitions for Review”) were filed in the D.C. Circuit Court of Appeals by attorney Brendan Schulman, on behalf of several Petitioners, including this writer.
The Petitions argue that the Interpretation is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in excess of statutory jurisdiction, authority, or limitations, and without observance of procedure required by law.” That matter is now pending because the Court granted a Motion for Abeyance on the basis of the FAA having not yet reviewed the 30,000+ public comments.
Under the terms of the Court’s granting of the Motion for Abeyance, the FAA is required to provide 90-day updates on its comment review process. And if the FAA attempts to enforce anything it purports to require or restrict under the Interpretation, (such as its claimed ban on commercial operations), all bets are off and the case may proceed. As of February 12, 2015, the FAA has stated that it had not even begun to analyze the public comments.
Update (March 9, 2015): In Perez v. Mortgage Bankers Association (March 9 2015), the Supreme Court held that agency interpretations of statutes and regulations are not legislative rules, and accordingly do not require agencies to follow the APA’s notice and comment procedures. The Court further held that as non-legislative rules, agency interpretations do not have the force and effect of law, and only indicate to the public what an agency perceives the law to be.
Courts must still give deference to agency interpretations, and those interpretations will stand unless a court finds them to be arbitrary and capricious. Exactly what effect, if any, the Perez decision has upon the June Interpretation is unknown. Since the FAA remains free to interpret aviation statutes and regulations as it sees fit, and since courts must defer to those interpretations unless they are determined to be arbitrary and capricious, the decision appears to have little practical effect on curbing the FAA’s use of interpretations to modify existing law.
Close attention should be paid to Justices Scalia’s and Thomas’ concurrences. Both express strong concern for agencies being able to draft broad and ambiguous regulations intentionally, knowing they may “fill-in-the blanks” at a later date simply by interpretation, thereby changing the meaning of regulations with relative impunity due to the deference requirement.
The Pirker case.
For decades, the definitions of “aircraft” did not include “model aircraft,” the majority of which are now of the “drone” type. The FAA neither considered nor treated them as “aircraft.” However, that all changed when, for the first time in history, the FAA issued a Proposed Order of Assessment against a foreign national named Raphael Pirker. Pirker is a well-known, highly skilled and experienced drone pilot. In 2011, at the request of the University of Virginia, Pirker flew a drone over the campus to obtain video footage and was compensated for the flight. That flight resulted in the FAA issuing an Proposed Order of Assessment of a civil penalty of $10,000.00.
In its Order of Assessment, the FAA listed all of its alleged facts concerning the flight, including an allegation that Pirker was compensated for it. However, the FAA did not rely upon that compensation at all for its proposed civil penalty. It couldn’t. There existed no FAR that prohibited commercial operation (and there still exists no such FAR). Instead it based its Proposed Order of Assessment solely upon an allegation that Pirker flew recklessly, in violation of FAR 91.13. The Proposed Order of Assessment, in relevant part reads:
By reason of the foregoing, you violated the following section(s) of the Federal Aviation Regulations:
a. Section 91.13(a) which states that no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”
Pirker’s attorney, the nation’s first and preeminent “drone attorney,” Brendan Schulman, filed and won a Motion to Dismiss. In March 2014, Administrative Law Judge Patrick Geraghty, in a well-reasoned, logical and scathing decision, granted Schulman’s Motion to Dismiss and the FAA lost. The Administrative Law Judge (“ALJ”) held that drones (which he referred to as “model aircraft.”) are not aircraft under the federal definitions, and therefore the FAA had no jurisdiction over Pirker’s flight. Not surprisingly, the FAA appealed the decision immediately to the full NTSB Board.
In November 2014, the NTSB issued its appeal decision, reversing the ALJ’s granting of Pirker’s Motion to Dismiss. It held that drones are aircraft as the word is defined under federal law and therefore subject to the recklessness regulation. It remanded the matter to the ALJ to decide whether Pirker’s flight was, in fact, conducted recklessly.
The NTSB’s decision was very narrow in one respect: it held that because drones are aircraft, FAR 91.13, the only FAR at issue in the matter, applies to drones. It did not address “commercial use” since that was not addressed by the Judge, and it did not hold that any other FAR applies to drones.
The Board’s decision was very broad in another respect: it did not qualify which size drones are aircraft. So both a 1-ounce child’s “toy” drone and a 55-pound industrial-sized drone are aircraft, and both are equally subject to FAR 91.13. In fact, given the extremely broad federal definition of aircraft, even paper airplanes are now subject to FAR 91.13. Yes, there is a manufacturer of paper airplane drones. In fact, the FAA granted me a Section 333 Exemption to fly it commercially.
As for Raphael Pirker, there was no decision on remand to the ALJ. Judge Geraghty first demanded that the FAA explain its authority to bring the recklessness action against a foreign national in the first place, since according to the FAA itself, it’s not supposed to. The FAA’s Order 2150.3B (Chapter 6, paragraph 34(a)) makes that clear. It reads:
34. Violations of FAA Regulations by Foreign Persons.
a. General. Legal counsel for the region with geographic responsibility for the investigation processes a case against a foreign person who violates the Federal Aviation Regulations. Legal counsel takes legal enforcement action against an airman who  commits a violation while exercising the privileges of his or her FAA airman certificate, a foreign individual who  commits a passenger violation, or  a foreign air carrier operating under 14 C.F.R. part 129. All other violations committed by foreign persons, except Canadian persons, are referred to the appropriate foreign aviation authority through the Department of State. Violations committed by Canadian persons, for whom legal enforcement action is not taken, are referred directly to Transport Canada. (Emphasis added.)
Pirker’s actions did not fall under any of the emphasized language above. He is not an FAA certified airman. He did not commit a passenger violation and he is not a foreign air carrier. This means that the entire Pirker matter, should have been handled by the “appropriate foreign aviation authority” through the Department of State, not by the FAA— a fact that had been argued by Schulman.
In the end, Pirker settled the case that never should have been brought against him by the FAA, for $1,100.00, with no admission of wrongdoing on his part. The FAA got an NTSB decision that drones are “aircraft” as that term is defined under the federal statutory and regulatory definitions, and subject to a single FAR— 91.13 (recklessness). Unless and until definitions of aircraft change, or a new definition for drones is created, drones will remain aircraft.
The FAA’s enforcement of its claimed prohibitions.
The FAA has not attempted to enforce its claimed new rules in the Interpretation. Nor has it ever attempted to enforce its long-claimed commercial use ban. Not once. Unless someone operates recklessly, at most they will receive an “educational letter” sent by FAA non-attorneys, that are carefully worded to encourage, but never order the recipient to do or not to do anything. Only FAA legal may issue such orders to do or not to do something, despite non-attorney FAA employees having issued such orders wrongfully and repeatedly over the past few years.
If a drone pilot receives a letter from the FAA, the first thing to do is to see who it is from. If it’s not from the FAA’s legal department, you need only read it and glean from it whatever useful information it might contain. Even then, according to the FAA’s Compliance & Enforcement Order 2150.3B Chg 6:
When sufficient evidence exists to support a violation that poses a medium or high actual or potential risk to safety, legal enforcement action is appropriate. For example, legal enforcement action is appropriate when a UAS operation has a medium or high risk of endangering the operation of another aircraft or endangering persons or property on the ground. In addition, repeated or intentional violations generally warrant legal enforcement action. (Emphasis added.)
So if a drone pilot doesn’t (1) endanger the operation of another aircraft or (2) endanger persons or property on the ground, they should be fine. If one receives several educational letters, the FAA claims it will start a legal enforcement action, but thus far even those who have received repeated “educational letters” have not faced any legal action.
As an alternative to simply flying safely, responsibly and commercially, those who wish to fly a drone commercially, and with the FAA’s blessing right now, may opt to petition for a Section 333 Exemption. If such a petition is granted, an operator may fly their drone commercially, albeit with restrictions.
It should be noted that Section 333 was never intended to be applied in this manner. The intent (as the section’s language makes clear), was for the Administrator to determine which types of drones could be operated safely in the NAS before the Final Rule was adopted. The intent was never to have the Administrator determine on a case-by-case basis, which particular persons or entities were deemed worthy of using drones commercially.
FMRA Section 333 reads:
SEC. 333. SPECIAL RULES FOR CERTAIN UNMANNED AIRCRAFT SYSTEMS.
(a) IN GENERAL.—Notwithstanding any other requirement of this subtitle, and not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 332 of this Act or the guidance required by section 334 of this Act.
(b) ASSESSMENT OF UNMANNED AIRCRAFT SYSTEMS.—In making the determination under subsection (a), the Secretary shall determine, at a minimum— (1) which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security; and (2) whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 of title 49, United States Code, is required for the operation of unmanned aircraft systems identified under paragraph (1).
(c) REQUIREMENTS FOR SAFE OPERATION.—If the Secretary determines under this section that certain unmanned aircraft systems may operate safely in the national airspace system, the Secretary shall establish requirements for the safe operation of such aircraft systems in the national airspace system. (Emphasis added.)
According to the FAA’s online Section 333 Exemption Portal, that section permits the Secretary of Transportation to exempt a petitioner from certain existing FARs before future drone regulations are finalized if:
- the petitioner can demonstrate that existing FARs burden them;
- the petitioner can provide a level of safety that is the same or greater than the regulation from which an exemption is sought; and
- the petitioner’s request is in the public interest.
In making that determination, the Secretary considers:
- What type of drone is it?
- How big is the drone?
- How fast it can fly?
- What can it do and not do (flight capability-wise)?
- How close would it be flying to airports?
- How close would it be flying to populated areas?
- Will the drone operator be able to see it at all times?
- Will it create a hazard to NAS?
- Will it create a hazard to the public?
- Will it pose a threat to national security?
If the FAA grants an Exemption, the holder will be subject to certain restrictions, some of which it relaxed a bit on March 24, 2015. However, you will still need to hold a airman certificate. The new FAA policy states that that certificate may be a an airline transport, commercial, private, recreational, or sport pilot certificate, as opposed to the private pilot certificate it previously required. The drone operator must also hold either a current FAA airman medical certificate or a valid U.S. driver’s license. Previously, an airman medical certificate was required.
The FAA also relaxed the areas in which operations may be conducted under an Exemption. Under the new policy statement, the FAA will grant a “blanket” Certificate of Waiver or Authorization (“COA”) that may be exercised “anywhere in the country except restricted airspace and other areas, such as major cities, where the FAA prohibits UAS operations.”
The blanket COA may be granted to any drone operator (1) who has been granted a Section 333 Exemption, as long as (2) the drone weighs less than 55 pounds, (3) it is flown at or below 200 feet, (4) it is operated during daytime Visual Flight Rules (“VFR”) conditions, (5) it is operated within visual line of sight (“VLOS”) of the drone operator, and (6) it is operated at certain distances away from airports or heliports:
- 5 nautical miles (NM) from an airport having an operational control tower; or
- 3 NM from an airport with a published instrument flight procedure, but not an operational tower; or
- 2 NM from an airport without a published instrument flight procedure or an operational tower; or
- 2 NM from a heliport with a published instrument flight procedure.
If a drone operator wishes to fly outside the blanket parameters, he or she must first obtain a separate COA that is specific to the airspace intended to be used for that operation.
For additional information on Exemptions, visit the FAA’s Section 333 Exemption portal, and its Guidelines for Submitting a Petition for Exemption.
On February 15, 2015, the FAA issued its small drone Notice of Proposed Rulemaking (“NPRM”), entitled “Operation and Certification of Small Unmanned Aircraft Systems.” The proposed rule would permit drone operation for non-hobby and non-recreational uses, thereby allowing, by regulation, commercial drone and non-hobbyist operations, under certain conditions.
There are some significant limitations in the NPRM. Drones may not be flown over “non-involved” people, and must not be flown to distances greater than those which would permit the drone operator to see the drone at all times. So beyond line-of-sight drone operations (such as long distance drone delivery services) would not be permitted under the proposed rule. Night operations would also not be permitted. This could hamper fire and other emergency services, among others. And ATC clearance would be required for flights conducted within Class B, C, D and E airspace, which might prove overly burdensome to both ATC personnel and drone operators.
Bear in mind, however, that the NPRM is a proposed rule and subject to change before it eventually becomes FAR Part 107 at some time in the future. The NPRM is not the law right now. The NPRM process is a long one, and public input might result in changes to the rule, favorable to some and unfavorable to others. That said, and much to everyone’s surprise, the FAA has proposed the exact opposite of what the drone community had expected.
Although not perfect, the NPRM is, in this writer’s opinion, quite a good start. Public comments to the proposed rule may be submitted for consideration for 60 days following its publication in the Federal Register. The FAA has provided a complete summary of the proposed rule here, which is included below.
Proposed drone requirements:
Under the proposed rule:
- an FAA airworthiness certification would not be required.
- the drone must be maintained in condition for safe operation and prior to each flight must be inspected to ensure it is in a condition for safe operation.
- aircraft registration is required in the same manner that applies to all other aircraft.
- aircraft markings are required in the same manner that applies to all other aircraft, but if aircraft is too small to display markings in standard size, then the aircraft simply needs to display markings in the largest practicable manner.
Proposed operator requirements:
Under the proposed rule, pilots of small drones would be called “operators,” and they must:
- be at least 17 years old.
- pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center.
- be vetted by the Transportation Security Administration.
- obtain an “unmanned aircraft operator certificate” with a “small drone rating,” which never expires.
- pass a recurrent aeronautical knowledge test every 24 months.
- make available to the FAA, upon request, the drone for inspection or testing, and any associated documents/records required to be kept under the proposed rule.
- report an accident to the FAA within 10 days of any operation that results in injury or property damage.
Proposed operational requirements:
Under the proposed rule, drones:
- must weigh less than 55 lbs.
- must remain within visual line of sight of the operator or visual observer.
- must remain close enough to the operator for the operator to be able to see the aircraft with vision unaided by any device other than corrective lenses.
- may not operate over any persons not directly involved in the operation.
- may only be operated from official sunrise to official sunset, (local time).
- must yield the right-of-way to other aircraft, whether manned or unmanned.
- may, but are not required to use a visual observer.
- may be flown using “first-person view,” but either the operator or the visual observer must maintain an unenhanced visual line of sight of the craft.
- may be flown at a maximum airspeed of 100 mph (87 knots).
- may be flown at a maximum altitude of 500 feet above ground level.
- may be flown in minimum weather visibility of 3 miles from the operator.
- may not be flown in Class A (18,000 feet & above) airspace.
- may be flown in Class B, C, D and E airspace with ATC permission.
- may be flown in Class G airspace are allowed without ATC permission.
- may not be flown carelessly or recklessly.
- require a preflight inspection before each flight, including specific aircraft and control station systems checks, to ensure the drone is safe for operation.
- may not be flown by a person if he or she knows or has reason to know of any physical or mental condition that would interfere with its safe operation.
- and no person may act as an operator or visual observer for more than one unmanned aircraft operation at one time.
Proposed “micro drone” option:
The NPRM also proposes a “micro drone” option, which appears to be based upon the Petition submitted by Brendan Schulman on behalf of my co-petitioner, UAS America Fund, in our action challenging the FAA’s Interpretation. The FAA states in its NPRM that it is considering the following, with respect to the operation of micro drones:
- it would weigh no more than 4.4 pounds (2 kilograms).
- it would be made out of frangible materials that break, distort, or yield on impact so as to present a minimal hazard to any person or object that the unmanned aircraft collides with.
- it would not exceed an airspeed of 30 knots.
- it would not travel higher than 400 feet above ground level (AGL).
- it would be flown within visual line of sight; first-person view would not be used during the operation; and the aircraft would not travel farther than 1,500 feet away from the operator.
- the operator would maintain manual control of the flight path of the unmanned aircraft at all times, and the operator would not use automation to control the flight path of the unmanned aircraft.
- operation would be limited entirely to Class G airspace.
- it would maintain a distance of at least 5 nautical miles from any airport.
The NPRM does not change Section 336.
Finally, the proposed rule does not change Section 336. It merely codifies it. It makes it clear that Part 107 would not apply to model aircraft that meet the criteria set forth in Section 336, and that the FAA’s enforcement authority extends only to prohibiting model aircraft operators from endangering the safety of the National Air Space.
State and local government drone law.
State and local governments have passed legislation that purports to regulate drone flight, but if challenged in court, any such laws would be considered preempted by the federal government’s intent to “occupy the field,” and therefore be invalid. By federal statute, “[t]he United States Government has exclusive sovereignty of airspace of the United States” (49 U.S. Code § 40103(a)(1)). The passage of the FMRA confirms the federal government’s intent to continue to “occupy the field” of flight, thereby invalidating (through preemption) any state or local laws that purport to regulate it.
State and local governments may, however, regulate two things related to flight:
- They may regulate their own agencies‘ drone flight operations; and
- They may regulate the locations on the ground from which drones may be launched, landed or operated.
That’s it. State and local governments cannot regulate drones in any other manner. They can of course use laws of general applicability (such as voyeurism, reckless endangerment, nuisance, etc.) to prohibit certain acts, which would apply to a drone pilot, if a drone happened to be the object used to perform the prohibited act. They could also pass unnecessary and duplicative criminal statutes specific to drones, but they’d be essentially meaningless since existing criminal statutes would already cover those crimes regardless of whether they were committed with a drone.