In a post last Fall, I demonstrated the capabilities of my inexpensive drone and suggested that an imaginative attorney could find lots of ways to use such a drone in a law practice. I did not, however, address the legalities of using private drones for commercial purposes. For now, it is an open question whether the commercial use of drones in any manner is currently permissible in US airspace.
The Federal Aviation Administration (“FAA”) takes the position that drones, such as the one I demonstrated, are not subject to regulation and are perfectly legal to operate for recreational or hobby purposes within certain parameters discussed below. However, it is illegal to use the very same drone for commercial purposes (unless a rare individual exception is approved by the FAA) until the agency finishes developing the regulations for commercial use due out by September 30, 2015. So, if I want to take an aerial picture of farm as part of my hobby as an amateur photographer, as far as the FAA is concerned it is perfectly legal to do so. However, if I am the farmer and want to check the health of my crop from the air using the same drone, that would be a commercial purpose, would be illegal, and could subject me to a $10,000 per violation fine.
That said, the FAA’s current authority to prohibit the commercial use of drones has been called into question in recent court rulings. In the agency’s initial attempt to enforce its claimed regulatory authority in this area, the FAA fined one Raphael Pirker $10,000 for using a remote controlled model power glider to take aerial photos for advertising use on the University of Virginia campus. The FAA relied upon a 2007 FAA Policy Statement that requires commercial drones to obtain a Certificate of Airworthiness and be subject to the Federal Aviation Regulations which include operation by a licensed pilot. The agency cited Pirker for violating its ban on commercial drone usage, for operating the drone “in a careless and reckless manner,” pursuant to 14 C.F.R. § 91.13, and operating the drone without a pilot’s license. Pirker challenged the agency’s regulatory authority to enforce the commercial drone ban.
In Administrator v. Pirker, FAA Case No. 2012-EA-210009, NTSB Docket No. CP-217 (2013), a federal administrative law judge held that the power glider used by Pirker was not an “aircraft”—rather, it met the requirements for a “model aircraft” even if it was engaged in commercial operations. More significantly, the Pirker Court held that the FAA had no authority, absent regulations properly adopted through the regulatory process, to regulate this model aircraft whether it was being used for commercial purposes or otherwise. The $10,000 fine was vacated and the case dismissed.
The FAA has appealed the Pirker decision, and staying the regulatory holding pending review by the full National Transportation Safety Board (“NTSB”). Even if the NTSB agrees that the commercial use of drones operated within the model aircraft rules is currently unregulated, as discussed below, once the FAA has properly promulgated commercial drone regulations in place, it will have the regulatory authority necessary to take enforcement action against violators.
The Statutory Framework
On February 14, 2012, the President signed into law the FAA Modernization and Reform Act of 2012 (” the Act”) into law (P.L. 112-95). One purpose of the law is “to establish a roadmap for getting [drones] integrated into the national airspace,” Regulations are to be in place to allow for the use of commercial drones by no later than Sept. 30, 2015, although some question whether the FAA will meet this deadline. It is anticipated that the new regulations will require some type of pilot licensing and airworthiness certification for drones used for commercial purposes.
In contrast to the regulatory restrictions on the operation of drones for commercial purposes, section 336 of the Act provides for a “special rule for model aircraft.” This section prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft” if the following statutory requirements are met:
- the aircraft is flown strictly for hobby or recreational use;
- the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
- 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;
- the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
- when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower … with prior notice of the operation….
P.L. 112-95, section 336(a)(1)-(5). Note that no pilot training, licensing or drone air worthiness certification is required or even permitted. Also note that a 55 pound drone could inflict some serious damage/injury if it plummets from 400 feet above– just saying…
One aspect of the FAA’s interpretation of the Act particularly controversial with the hobby and recreational community is the requirement that the drone operator be able to see the drone with his or her own unaided eyes:
By definition, a model aircraft must be “flown within visual line of sight of the person operating the aircraft.” P.L. 112-95, section 336(c)(2). Based on the plain language of the statute, the FAA interprets this requirement to mean that: (1) the aircraft must be visible at all times to the operator; (2) that the operator must use his or her own natural vision (which includes vision corrected by standard eyeglasses or contact lenses) to observe the aircraft; and (3) people other than the operator may not be used in lieu of the operator for maintaining visual line of sight. Under the criteria above, visual line of sight would mean that the operator has an unobstructed view of the model aircraft.
To ensure that the operator has the best view of the aircraft, the statutory requirement would preclude the use of vision-enhancing devices, such as binoculars, night vision goggles, powered vision magnifying devices, and goggles designed to provide a “first-person view” from the model. Such devices would limit the operator’s field of view thereby reducing his or her ability to see-and avoid other aircraft in the area. Additionally, some of these devices could dramatically increase the distance at which an operator could see the aircraft, rendering the statutory visual-line-of-sight requirements meaningless.
Finally, based on the plain language of the statute, which says that aircraft must be “flown within the visual line of sight of the person operating the aircraft,” an operator could not rely on another person to satisfy the visual line of sight requirement. See id. (emphasis added). While the statute would not preclude using an observer to augment the safety of the operation, the operator must be able to view the aircraft at all times.
Interpretation of the Special Rule for Model Aircraft, 14 CFR Part 91 at 8-9.
This interpretation prohibits the drone operator from using augmented reality devices (such as Google Glass or Oculus Rift) as the visual means of controlling the aircraft. Looking at the limited field of view for these devices in the linked examples, suggests that the FAA’s interpretation is a wise one. If you have an opinion on the matter the FAA has granted a 60-day extension for the public to comment on its interpretation of the Special Rule for Model Aircraft. The new deadline for comment is September 23, 2014.
While the FAA recognizes that it does not have the authority to regulate drones meeting the model aircraft criteria that are used are strictly for recreational purposes within the described guideleine, but asserts that it can regulate the same model aircraft used for commercial purposes:
Thus, based on the language of the statute, we conclude that aircraft that meet the statutory definition and operational requirements would be exempt from future FAA rulemaking action specifically regarding model aircraft. Model aircraft that do not meet these statutory requirements are nonetheless unmanned aircraft, and as such, are subject to all existing FAA regulations, as well as future rulemaking action, and the FAA intends to apply its regulations to such unmanned aircraft.
Interpretation of the Special Rule for Model Aircraft, 14 CFR Part 91 at 11. To clarify this, in its interpretation the FAA provides the following examples of recreational (non-regulated) versus commercial use (regulated and currently prohibited):
|Hobby or Recreation
||Not Hobby or Recreation
|Flying a model aircraft at the local model aircraft club.
||Receiving money for demonstrating aerobatics with a model aircraft.
|Taking photographs with a model aircraft for personal use.
||A realtor using a model aircraft to photograph a property that he is trying to sell and using the photos in the property’s real estate listing.A person photographing a property or event and selling the photos to someone else.
|Using a model aircraft to move a box from point to point without any kind of compensation.
||Delivering packages to people for a fee.
|Viewing a field to determine whether crops need water when they are grown for personal enjoyment.
||Determining whether crops need to be watered that are grown as part of commercial farming operation.
While drones operated for recreational use under the criteria set forth above are exempt from regulation by the FAA, state and local authorities may impose additional restrictions.
While the difference in regulatory treatment of the same drone and same operator based only upon whether the drone is used for recreational or commercial use is not particularly logical, it arises from the desire of Congress to protect the recreational model aircraft community and not an effort to stifle the use of drones for commercial purposes (nor permit their unfettered and unregulated use).
One thing that is clear, while the federal regulatory bureaucracy may be slow in promulgating commercial drone regulations, the commercial use of drones is coming and will be big business. It will also present many noval legal issues to be addressed by “hytech lawyers”
If you are interested learning more about the big future ahead for the commercial use of drones, I recommend the linked 60 Minutes (https://m.youtube.com/watch?v=kTZ94RujpEg) story which provides some excellent background information.