Model Aircraft Operations

Introduction.

If you are confused about how to legally operate a model aircraft, it’s not your fault, but the FAA’s fault. The new FAR Part 101 is confusing, and has already resulted in controversy.

In a nutshell, to fly a model aircraft under Part 101, you must:

[1] be operating a model aircraft;
[2] abide by all of Section 336 of the FMRA of 2012;
[3] operate within a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
[4] not endanger the safety of the national airspace system; and
[5] register yourself as a model aircraft owner if, based upon weight, it is required to be registered.

All of [1] through [5] above is discussed in greater detail below, but it is important to understand that all of the criteria of Part 101 must be met in order to operate under it. If any of the criteria of Part 101 is not met, you are not operating under it, and must instead operate under Part 107; under a Section 333 Exemption; under a Public Aircraft Certificate of Authorization or Waiver; operate indoors only; or not operate at all.

[1] You must be operating a model aircraft.

Effective August 29, 2016, the title of Part 101 of the Federal Aviation Regulations was amended to read:

PART 101—MOORED BALLOONS, KITES, AMATEUR ROCKETS, UNMANNED FREE BALLOONS, AND CERTAIN MODEL AIRCRAFT

Part 101 already contained the rules governing the operation of moored balloons, kites, amateur rockets, unmanned free balloons. It now also governs the operation of “certain model aircraft.” The word “certain” is used because not all model aircraft operations are considered model aircraft operations for purposes of the Part.

Both traditional model aircraft, such as those flown at designated fields, and the more modern, multi-rotors or “drones” flown both at and away from designated fields can be model aircraft. But to be a model aircraft for Part 101 purposes, the craft must meet the criteria found in §§ 101.1(a)(5)(i),(ii) and (iii), which reads:

(5) Any model aircraft that meets the conditions specified in § 101.41. For purposes of this part, a model aircraft is an unmanned aircraft that is:

(i) Capable of sustained flight in the atmosphere;
(ii) Flown within visual line of sight of the person operating the aircraft; and
(iii) Flown for hobby or recreational purposes.

[2] You must abide by Section 336 of the FMRA of 2012.

As paragraph 5 above states, the model aircraft must also meet all of the conditions found in § 101.41, of Subpart E, the Special Rule for Model Aircraft. Section 101.41 mirrors the language of Section 336 of the FMRA of 2012 and reads:

This subpart prescribes the rules governing the operation of a model aircraft that meets all of the following conditions as set forth in section 336 of Public Law 112-95:

(a) The aircraft is flown strictly for hobby or recreational use;
(b) The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(c) 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;
(d) The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(e) 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.

N.B. With respect to paragraph (e) above, the FAA has not clarified what qualifies as “prior notice.” Unlike Part 107 Remote Pilots who must obtain airspace authorization via a web-based portal, Part 101 model aircraft operators must provide prior notice using some other means of communication. The FAA’s FAQs and Orders repeatedly refer to calling the airport operator and airport control tower. However, the FAA has been silent about whether this means simply making a good faith attempt to communicate with the airport operator and airport control tower, or whether you must actually engage in two-way communications with both. This writer opines that you must do the latter, since it is not possible to effectively notify the airport operator and airport control tower of your intentions unless there exists a two-way communication.

So it’s a matter of whathow and why you are flying a model aircraft that determines whether you are flying a model aircraft for purposes of Part 101. If you don’t meet all of the criteria of § 101.1(a)(5)(i),(ii) and (iii), and all of the criteria of § 101.41, your flight operations would not fall under Part 101, and you will need some other type of FAA authorization to fly.

[3] You must follow the safety guidelines of the AMA.

The criteria of § 101.41(b) includes a requirement that model aircraft operations be flown “in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.”

At this writing, the only nationwide community-based organization (“CBO”), the FAA has acknowledged by name, (by referring to it in a footnote to its June 2014 Interpretation of the Special Rule for Model Aircraft), is the Academy of Model Aeronautics (the “AMA”). Therefore, unless and until another CBO comes into existence, you must follow the AMA’s Safety Code.

N.B. According to the FAA, you do not need to be a member of a “particular” CBO to comply with Part 101, but rather you need to operate in accordance with a CBO’s safety guidelines. Former NTSB Member John Goglia posed this question to the FAA. Its official response was:

Q: Also, will model aircraft pilots who do not belong to the AMA have to get a remote pilot certificate under Part 107 after August 29? 

A: The FAA does not mandate membership in any particular community-based organization.  To qualify for the Special Rule for Model Aircraft, an unmanned aircraft must, among other things, be operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization. If a hobbyist can’t show that he or she is operating in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization, then he or she will have to meet the requirements of Part 107. (Emphasis added.)

N.B. The FAA’s use of the word “particular” is concerning, since it suggests that you must be a member of some CBO, and right now, there’s only one — the AMA. Whether the FAA may compel membership in any CBO will be the subject of an upcoming article. For the purposes of this piece, I am assuming there is no definitive answer at this writing.

According to the AMA’s Safety Code, certain things are permitted and others are prohibited, even though federal law might state the exact opposite, or is entirely silent on the subject. For example, according to the AMA Safety Code:

You must avoid flying directly over unprotected people, vessels, vehicles or structures. This essentially means you may only fly in an open areas where there is no possibility at all of flying directly over unprotected people, vessels, vehicles or structures. In fact, under the AMA’s Safety Code, you may not even fly over yourself, your own vessel, your own vehicle or your own structure.

See AMA Safety Code paragraph B(1) — “All pilots shall avoid flying directly over unprotected people, vessels, vehicles or structures and shall avoid endangerment of life and property of others.”

Night flights are permitted. As long as the model aircraft is equipped with appropriate lighting to provide the pilot with a clear view of the model’s attitude and orientation at all times, you may fly in darkness. Compare this to Part 107, which prohibits flying at night unless you have received a waiver to do so.

See AMA Safety Code paragraph B(8) — “RC night flying requires a lighting system providing the pilot with a clear view of the model’s attitude and orientation at all times. Hand-held illumination systems are inadequate for night flying operations.”

Flight altitudes are unrestricted, unless you are within three miles of an airport. Unlike Part 107, the AMA Safety Code does not restrict altitude except when flying within three miles of an airport. In those instances, you are restricted to flying as high as “approximately 400 feet AGL,” unless you have notified the airport operator. Of course, under federal law, § 101.41 requires you to provide prior notification to the airport operator and the airport control tower (if there is one in operation), if you plan to fly within 5 miles of an airport.

See AMA Safety Code paragraph A(2)(c) — “Model aircraft pilots will [n]ot fly higher than approximately 400 feet above ground level within three (3) miles of an airport without notifying the airport operator.” 

First person view (“FPV”) operation is permitted. Despite the federal prohibition of FPV operations by model aircraft operators, (by virtue of the “visual line of sight” requirement in the definition of “model aircraft” in § 101.1(a)(ii)), the AMA allows it. And, according to the AMA, since it allows FPV operations, those who follow its Safety Code need not abide by federal law. (It should be noted that at this writing, the FAA disagrees with the AMA and agrees with former Regional Counsel Loretta Alkalay’s interpretation.)

See AMA Safety Code paragraph B(9)(b) — “The pilot of an RC model aircraft shall [f]ly using the assistance of a camera or First-Person View (FPV) only in accordance with the procedures outlined in AMA Document #550.”  

“Hand-catch” landings are prohibited. Rather than landing them upon the ground, some operators prefer to hand catch their multi-rotors, either all of the time or under certain conditions. This is strictly forbidden under the AMA Safety Code.

See AMA Safety Code paragraph B(7)) — “Under no circumstances may a pilot or other person touch an outdoor model aircraft in flight while it is still under power, except to divert it from striking an individual.” 

Like it or not, you must abide by all of the AMA Safety Code to operate under Part 101.

[4] You must not endanger the safety of the national airspace system.

Section 101.43 reads, “No person may operate model aircraft so as to endanger the safety of the national airspace system.” This is a “catch all” provision. No matter what you are required or permitted to do or not do under Part 101 and the AMA Safety Code, you may not endanger the safety of the national airspace system.

Any model aircraft operation that endangers the safety of the NAS — whether it’s through careless or reckless operations; by interference with or failure to give way to any manned aircraft; by flying within Temporary Flight Restriction Areas (TFRs), Prohibited Areas, Restricted Areas, Special Flight Rules Areas, or the Washington National Capital Region Flight Restricted Zone without specific authorization — may be subject to FAA enforcement action.

N.B. Although under Part 101 model aircraft are not required to consider different airspace classifications, (see: JO 7210.891, page 4, paragraph 9), the FAA could argue that flying within Class B, C, D and E airspace without authorization endangers the national airspace system.

[5] You must register.

If you are a hobbyist flying model aircraft outdoors, you must either register yourself as a model aircraft owner under part 48 or each of your model aircraft under Part 47, if any of your model aircraft weigh between 0.55 lbs. (250 grams) and less than 55 lbs. (25 kg). The choice between registering under Part 48 or 47 is yours.

N.B. If you plan to fly FPV, you must register under the “Non-Model Aircraft” choice of the Part 48 portal or under Part 47 since at this writing, FPV is not permitted under Part 101 hobbyist operations.

When you register yourself as a model aircraft owner, you must pay the FAA a fee of $5.00, which covers all of the model aircraft you own. If you are required to register properly and fail to do so, you could face both civil penalties of up to $27,500 and criminal penalties (include fines) of up to $250,000 and/or imprisonment for up to three years.

Conclusion.

Part 101 is a “carve out” for model aircraft operations, which renders all of the language of Part 107 inapplicable to those operations,  provided all of items [1] through [5] above are met — “to the t.” If you stray from any of what is explained above, you are not operating under Part 101. If you are not then operating under some other level of FAA authorization, you are operating illegally and are subject to both civil and criminal penalties.

Commentary.

The new model aircraft language in Part 101 is arguably an invalid codification of Section 336 of the FMRA of 2012 (“the “Special Rule for Model Aircraft”). That section 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.

As paragraph 336(a) above clearly states, Congress expressly prohibited the FAA from promulgating any rules or regulations regarding model aircraft. Since Part §101.1(a)(5) did not exist prior to August 29, 2016, and since it pertains to model aircraft, it is by definition a new rule or regulation the FAA has promulgated regarding a model aircraft — in direct violation of Section 336(a). That said, even though the language pertaining to model aircraft in Part 101 should not even exist, unless it is successfully challenged as an invalidly promulgated agency regulation, it’s the law.