DroneThe Big Blue Sky is Getting More Red Tape

Drone flying, operating unmanned aircraft systems (UAS), is a natural extension of model aircraft flying, an educational hobby that aviation enthusiasts including future pilots and aeronautical engineers have been participating in since the 1930s.  On October 19, 2015, US Transportation Secretary Anthony Foxx and FAA Administrator Michael Huerta announced the creation of a task force to develop recommendations for a registration process of Unmanned Aircraft Systems (UAS).

The task force composed of a mix of 25 to 30 diverse representatives from the UAS and manned aircraft industries, government, and other stakeholders, will advise the Department on which Unmanned Flying Objects should be exempt from registration due to their low safety risk.  Secretary Foxx wants the Committee’s report by November 20, 2015.

Why now?

Pilot reports of UAS sightings doubled in 2015 compared to 2014.  Potentially unsafe UAS operations involving proximity to manned aircraft, major sporting events and interference with wildfire operations are reported to the FAA every day.  “These reports signal a troubling trend,” Huerta said.  “Registration will help make sure that operators know the rules and remain accountable to the public for flying their unmanned aircraft responsibly.  When they don’t fly safely, they’ll know there will be consequences.”   http://www.faa.gov/news/press_releases/news_story.cfm?newsId=19594..

A Little History

Model aircraft enthusiasts have been involved in their hobby without federal aircraft registration, and little regulation, for over 85 years.    In the early days, most model aircraft enthusiasts had to build their craft before taking it to the skies.  Though theoretically possible that a newcomer could convince someone who had heavily invested time in building their unmanned flying machine, it was not likely that the owner would turn over his coveted craft to a novice.   In the building process, the hobbyist learned aerodynamics and other safety factors through self study and “hangar talk.”  Knowledge is required in order to form good judgment.  A popular aviation quote from Frank Borman (Commander of Apollo 8) sums it up, “A superior pilot uses his superior judgment to avoid situations which require the use of his superior skill.”  The regulations are designed to make sure drone operators meet the level of being a superior pilot and exercising superior judgment.

The model aircraft industry formed clubs in the 1930s.  One such organization, the Academy of Model Aeronautics (AMA), has this mission statement: “AMA is devoted to providing expert guidance to model builders and to give modelers a single voice in developing national rules for aeromodelling contests and representing their interests to government.”  A visit to the Academy of Model Aeronautics (AMA) website, http://www.modelaircraft.org/museum/ama_history.aspx, is one of many good sources providing relevant information for UAS operators.    Today, everyone can purchase a drone spending anywhere from $55.00 up to several thousands and add their “aircraft” to the skies.  Acquiring a drone as a gift, or making an impulse purchase is much more likely than ever before, and results in a larger number of uneducated drone pilots.  Unlike manned aircraft, no FAA Certificated Flight Instructor (CFI) stands between the UAS Operator and their first solo flight.  Operators are well advised to consider the flight environment including airspace restrictions and how not to create a hazard or annoyance to persons on the ground prior to launch.

Invisible Boundaries Fill the Big Blue Sky

In the early days of flying, the “Big Sky Theory” for aircraft separation worked great:  Big sky, few flying objects, and little chance that the two would collide.   Today there are about 7,000 aircraft in the air over the United States at any given time.  This does not include Model Aircraft or UAS.  A Safety Advisory publication examining the airspace system and how to operate within it is available through the Aircraft Owners and Pilots Association (AOPA) website: http://flighttraining.aopa.org/students/solo/topics/SA02_Airspace_for_Everyone.pdf.

Currently, model aircraft flown for recreation or hobby purposes do not require FAA approval. This is not to say that UAS hobbyists are exempt from FAA enforcement actions if found to be violating airspace or safety regulations.  Fines of ten thousand dollars or more can be imposed.  For newcomers, unfamiliar with aviation, finding and absorbing the needed information that applies to UAS hobby flying in order to exercise sound judgment can be overwhelming.  Each owner/operator must ask questions and do significant research before they fly.  See http://knowbeforeyoufly.org/. They need to find organizations where hobbyists gather and exchange information.  Operators should seek counsel from a qualified attorney at the first sign of an FAA investigation.  Also, operators should discuss the issues and risks with a qualified attorney before they fly their aircraft.

Commercial operators, those who operate UAS for any commercial purpose require a Part 333 Exemption, Operations Manual, and depending on the proposed operation, other requirements may be necessary.  The operator should consult with an aviation attorney before embarking on a commercial operation.  In addition, commercial operators are required to have a certificated pilot at the controls, and this requirement is likely to continue until the FAA creates a UAS Operator Certification.  Until then, certificated pilots have demonstrated to an FAA flight examiner that they understand how to safely operate within the National Airspace System, and that they have a working of Title 14, Part 91 of the Code of Federal Regulations, General Operating and Flight Rules.  http://www.ecfr.gov/cgi-bin/text-idx?node=14:  Requiring a certificated pilot to be at the controls, gives some assurance that the Operator in a commercial environment has received training on issues involving national security and restricted airspace, and avoiding creating hazardous conditions threatening persons and property in the air or on the ground.

Davis Miles McGuire Gardner is ready and able to help you with your aviation law needs, from questions about drones to any other aviation question. As a full service law firm, we include aviation law among our practice areas. You should not fly solo when it comes to navigating the law regarding the FAA and aviation regulations.

On a less formal but equally interesting note, for updates on Santa and where the FAA figures he fits in, see http://www.faa.gov/tv/?mediaId=996. Check periodically for updates directly on the FAA website.   I am still pondering if Santa will have to register his sleigh and eight tiny reindeer.

Happy holidays and fly safe.