Model Aircraft Rules


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Why the FAA’s Drone Registration Requirements Are ILLEGAL

This article lays out an in-depth discussion as to the three big reasons why the FAA’s FAR Part 48 drone registration regulations are illegal and should be struck down by a court. The registration regulations are currently being challenged in the D.C. Circuit Court of Appeals by John Taylor and I am assisting him with the lawsuit.

 

Key Point of the Rule:

Persons owning small unmanned aircraft, whether intended to be used as model aircraft or as other than model aircraft, are required to register those aircraft with the FAA[.]” “This rule applies to all owners of small unmanned aircraft which weigh more than 0.55 pounds and less than 55 pounds on takeoff.” It goes into effect Dec 21, 2015. If you do not comply, you could face civil penalties up to $27,500 and criminal penalties of $250,000[1] and/or imprisonment up to 3 years.[2]

 

While the electronic means of registration seems great and would be a wonderful thing for my commercial drone clients, the issue is NOT with the proposed regulations but (1) the apparent direct violation of Section 336 of the FMRA, (2) the improper use of the “good cause” bypass exception to the Administrative Procedures Act, and (3) the lack of statutory authority.

 

 

1. The Violation of Section 336

Section 336 of the FAA Modernization and Reform Act of 2012 says:

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[.]” The key word here is “any” and the major take away is that it prevents the promulgation of new rules or regulations, not the using of already existing regulations (i.e. Part 47 and § 91.203).The FAA believes that model aircraft operators are now subject to 91.203 which requires the drone to be registered prior to operation in the national airspace.

 

FAA responded to the Section 336 prohibition allegation in the registration rule document:

The FAA disagrees with the comments asserting that the registration of model aircraft is prohibited by section 336 of Public Law 112-95. While section 336 bars the FAA from promulgating new rules or regulations that apply only to model aircraft, the prohibition against future rulemaking is not a complete bar on rulemaking and does not exempt model aircraft from complying with existing statutory and regulatory requirements. As previously addressed, Public Law 112-95 identifies model aircraft as aircraft and as such, the existing statutory aircraft registration requirements implemented by part 47 apply.

 

This action simply provides a burden-relieving alternative that sUAS owners may use for aircraft registration. Model aircraft operated under section 336 as well as other small unmanned aircraft are not required to use the provisions of part 48. Owners of such aircraft have the option to comply with the existing requirements in part 47 that govern aircraft registration or may opt to use the new streamlined, web-based system in part 48.”’[3]

Alternative or a New Regulation?

If this is a “burden-relieving alternative[,]” why does the rule seeks to amend the non-alternative current rules in Part 1, § 45.1, § 47.2, § 47.3, § 47.7, § 91.203, § 375.11, and § 375.38? This rule is a new rule coupled with multiple regulations being amended so as to harmonize the new rule in Part 48.

 

One key point is that this is being codified in Part 48 of the Code of Federal Regulations which brings us squarely back to the issue of the prohibition on the creation of rules or regulations.

What Does Section 336 Actually Prohibit?

If it is “not a complete bar on rulemaking[.]” what is it a bar actually on? It has to be a bar on something and it would be completely ludicrous to interpret it as a bar on nothing. The FAA’s interpretation is that it is a bar on “some” rulemaking, just not “any.” The scope of “some” is completely unclear.

“Any” = “Some?”

Context is king. “Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.[4] We must not seek the FAA’s interpretation of this statute, but Congress’ meaning of the FMRA.

 

Let’s look at the word “any” used elsewhere in Sections 331-336 of the FMRA and replace “any” with the FAA’s interpretation of “some” and see what happens.

“[E]nsure that any [some] civil unmanned aircraft system includes a sense and avoid capability[,]”[5]

“[I]ncorporation of the plan into the annual NextGen Implementation Plan document (or any [some] successor document) of the Federal Aviation Administration.”[6]

IN GENERAL.—Notwithstanding any [some] 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.”[7]

“[W]hich types of unmanned aircraft systems, if any [some], 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[,]”[8]

“[O]utside of 5 statute miles from any [some] airport, heliport, seaplane base, spaceport, or other location with aviation activities.”[9]

IN GENERAL.—Notwithstanding any [some] 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 [some] rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft,”[10]

“[T]he aircraft is operated in a manner that does not interfere with and gives way to any [some] manned aircraft[.]”[11]

 

Using the redefined “any” causes havoc on the reading of the text. The context of all those sections using “any” used it just as if they would have used the word “all.”

 

Though not as contextually persuasive as Sections 331-336, 14 CFR § 1.3 Rules of Construction differs from the FAA’s interpretation, ‘“a person may not * * *” mean[s] that no person is required, authorized, or permitted to do the act prescribed[.]”’ Why did I bring up § 1.3? Because that rule of construction applies to 91.203 which is going to be the regulation cited against individuals flying their drones unregistered, “no person may operate a civil aircraft unless it has within it the following: The FAA’s interpretation of Section 336 “may not promulgate any[,]” meaning some rules or regulations, is different than their interpretation of 91.203 “no person may[,]” meaning all persons, which is currently being used against one individual, Skypan, and will be used against any future individuals who choose to not register their drone prior to operation.

 

Does Any Mean Any Any Time?

The Second Federal Circuit Court of Appeals has said:

As the Supreme Court has frequently observed, use of the word “any” in statutory text generally indicates Congress’s intent to sweep broadly to reach all varieties of the item referenced. See, e.g., United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (quoting Webster’s Third New International Dictionary 97 (1976) in concluding that, ‘[r]ead naturally, the word `any’ has an expansive meaning, that is, `one or some indiscriminately of whatever kind'”); accord HUD v. Rucker, 535 U.S. 125, 131, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002) (same); Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir.2006) (noting that “Congress made [the phrase at issue] even broader when it chose the expansive word `any’ to precede the list” (internal quotation marks omitted)). The Court most recently applied this principle in interpreting the phrase “`any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air'” in the Clean Air Act. Massachusetts v. EPA, ___ U.S. ___, 127 S.Ct. 1438, 1460, 167 L.Ed.2d 248 (2007) (quoting 42 U.S.C. § 7602(g)) (ellipsis and emphases in original). It concluded that “[o]n its face,” the quoted language “embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word `any.[12]

 

The United States Supreme Court has said:

‘[A]ny’ can and does mean different things depending upon the setting. Compare, e. g., United States v. Gonzales, 520 U. S. 1, 5 (1997) (suggesting an expansive meaning of the term “`any other term of imprisonment'” to include state as well as federal sentences), with Raygor v. Regents of Univ. of Minn., 534 U. S. 533, 542-546 (2002) (implying a narrow interpretation of the phrase ‘any claim asserted’ so as to exclude certain claims dismissed on Eleventh Amendment grounds). To get at Congress’s understanding, what is needed is a broader frame of reference, and in this litigation it helps if we ask how Congress could have envisioned the . . . clause actually working. . . . See, e. g., New Jersey Realty Title Ins. Co. v. Division of Tax Appeals of N. J., 338 U. S. 665, 673 (1950) (enquiring into ‘the practical operation and effect’ of a state tax on federal bonds).[13]

 

Contexts indicates that Congress practically intended that model aircraft would be free from the creation of rules or regulations. This is evidenced by sub-section (b) which says, “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.”[14] The only thing in all of Section 336 that could even be read to limit the FAA is the language “may not promulgate[.]”

 

Buttressing that, sub-section (c) defines “model aircraft” more narrowly than the definition of unmanned aircraft in Section 331 which indicates that it is a “special” sub-classification of the broad classification of unmanned aircraft. This all points to Congress intending to mean any any time it is used in Section 331-336.

 

In conclusion, the United States Supreme Court, while acknowledging that any could mean different things, it is generally to be taken as a broad sweep of the category, unless context indicates otherwise. Furthermore, context indicates that sub-section (b) and (c) both look at (a) as providing something special that unmanned aircraft (non-model and public aircraft) do not get.

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Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Drone Crash-What Do I Do After I Crash My Drone?

 

 

crashed droneIf you crashed a drone, there are reporting requirements. Below we will discuss the reporting requirements you make to the FAA and the reporting requirements you make to the National Transportation Safety Board (“NTSB”) following a drone crash. Just to be clear, this whole page does NOT apply to Part 101 model aircraft. 

 

Quick Info:

  • “Contact the NTSB’s 24-hour Response Operations Center (ROC) at 844-373-9922 to file a report. A phone call is sufficient initially, but a written follow-up may be required.”
  • FAA REGIONALOPERATIONS CENTERS. LOCATION WHERE ACCIDENT OCCURRED:
    • DC, DE, MD, NJ, NY, PA, WV, and VA 404-305-5150
    • AL, CT, FL, GA, KY, MA,ME,MS, NC, NH, PR, RI, SC, TN, VI, and VT 404-305-5156
    • AK, AS, AZ, CA, CO, GU, HI, ID, MP,MT, NV, OR, UT, WA, and WY 425-227-1999
    • AR, IA, IL, IN, KS, LA, MI,MN,MO, ND, NE, NM, OH, OK, SD, TX, and WI 817-222-5006
  • The FAA also has a website where you can report a crash.
  • NASA AVIATION SAFETY REPORTING SYSTEM
  • Note that the NTSB’s definitions of accident and unmanned aircraft accident and the FAA’s definition of accident in 107.9 are ALL different. It would have been a good idea for the FAA to just match up the definitions of 107.9 to 830.2 to keep things simple.
  • Keep in mind that this article is primarily focusing on Part 107 operations, NOT  Section 333 exemption operations, but most 333 exemptions have a provisions that requires notification to the FAA UAS Integration Office and NTSB so this article is still very relevant although some the requirements might differ. The language of the exemption and Blanket COA supersedes these requirements.

Times:

  • Mandatory:
    • Report an “accident” or “serious incident” (Part 830’s definitions) immediately to the NTSB Response Operations Center.
    • Send NTSB Form 6120.1 in within 10 days for an accident or 7 days for an overdue aircraft that is still missing. For a serious incident and if requested, send in the form. No time is mentioned in 830.15.
    • Notify the FAA within 10 days of the occurrence of an accident (107.9 “accident”).
  • Voluntary:
    • “NASA Form” is within 10 days of the violation.

 

During this 10 day period, you have time to call an attorney to help in figuring out how best to handle the situation and what to say in your report.

Don’t want to read? Watch the video of this article!

 

 

crashed cinematography drone

Who is the NTSB? How Are They Different than the FAA?

crashed drone 2“The NTSB is an independent federal agency, charged by Congress to investigate transportation accidents, determine probable cause, and issue safety recommendations to prevent similar accidents. The agency’s scope extends beyond aviation crashes, as it also investigates selected rail, marine, highway, and pipeline accidents, as well as those involving transportation of hazardous materials.”[1] The NTSB is COMPLETELY separate from the FAA. “The primary role of NTSB is improving safety of our nation’s transportation system. The agency determines the probable cause of accidents and issues safety recommendations to prevent similar occurrences. It does not determine fault or liability. In fact, according to 49 U.S.C. § 1154(b), ‘No part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.’”[2]


In addition to doing investigations, the NTSB can judge appeals of FAA enforcement actions brought against manned aircraft pilots and drone pilots. There are two levels of appeal with the NTSB: (1) the administrative law judge level (ALJ) and (2) the full board of NTSB members. Some of you might remember the Pirker case. The Pirker case was initially won at the ALJ level, but on appeal to the full NTSB Board, was remanded back to the ALJ to determine if Pirker’s flight was careless and reckless.

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Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Q & A about Section 333, Part 107, and Drone Law.

I was recently interviewed by Jeremiah from Commercial UAV News. The title of the article is Your FAA Regulation Questions Answered: Part 107, Section 333 and the Future of Drone Law.  I would highly suggest everyone take the time to read over this Q & A article.

 

Your FAA Regulation Questions Answered: Part 107, Section 333 and the Future of Drone Law


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

TFR (Temporary Flight Restriction)

TFR-temporary-flight-restrictionA Temporary Flight Restriction (TFR) is nothing to play around with. Violations of TFRs can be punished quite severely with a pilot license suspension, civil penalty, or in the worst case: prison time. The FAA has been pursuing enforcement actions against manned and unmanned pilots around the U.S. for TFR violations. In this series of TFR articles, I will help you understand more about each of the TFRs, and give you pro tips based upon my flight instructing experience, so you can pass a knowledge exam and fly safely and confidently.  Also, if you want to create a TFR, get a waiver to fly into a TFR (i.e., sport event filming), or if you accidentally flew in a TFR unauthorized and potentially will be prosecuted by the FAA, contact me.

TFR-drone-temporary-flight-restriction

What is a TFR?

The FAA defines a TFR as “a regulatory action issued via the U.S. Notice to Airmen (NOTAM) system to restrict certain aircraft from operating within a defined area, on a temporary basis, to protect persons or property in the air or on the ground.” There are different types of TFRs and they are listed out in the Federal Aviation Regulations (FARs). The regulations for TFRs are located in Part 91 and Part 99 which govern manned aircraft operations. For remote pilots, Part 107.47 requires them to comply with all the TFRs located in Part 91 and 99 as well.

How can I tell where a TFR is located?

A TFR is not located anywhere on a sectional chart and can literally temporarily “pop-up” quite quickly. A helpful website is tfr.faa.gov, where the TFR will be portrayed in a picture of an overlay of the TFR on a sectional chart and also described in textual format. The picture will tell you the dimensions while the text will tell you the precise dimensions, altitudes, and times. The dimensions of the TFR are going to be explained by reference to a fixed point. Much of the time, the fixed point is a VOR, but sometimes it can be a random set of coordinates on the map (especially when elected officials are campaigning or fundraising). It is incredibly important to check for TFRs before EVERY flight. You should not rely on a pre-flight briefer over at 1-800-wx-brief to catch the TFR or whether it effects you or not.

TFR-description

You should check tfr.faa.gov before EVERY flight. It breaks the TFRs down into states, chronologically on a list, graphically on a map, FAA ATC centers, and TFR types.

Pro Tip: Never trust the flight briefer. If you are close to a TFR, make sure you check.

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Why should you never rely on the briefer?

President Obama came to Ft. Lauderdale when I was flight instructing and a TFR popped up. I called over to 1800WXBRIEF and requested a pre-flight briefing before the flight. The briefer told me about the TFR, but said that I was NOT within the TFR. I didn’t trust him so I checked online for the textual description and measured the TFR out. Guess what? I was right within the edge of the TFR and could not take off. The briefer got it wrong. When I was in the FBO, an airplane took off. In about a minute, the phone rang and the FBO manager answered. The manager talked shortly on the phone. He hung and up and turned to me and said, “That was the Secret Service trying to figure out who just took off.”

Another Pro Tip: Sign up for the free drone law newsletter that has the latest info about Part 107, model aircraft rules, Section 333, COAs, etc.

Who can go into a TFR?

TFRs are NOT always a complete ban on all types of flying. It just means only authorized individuals can fly in those areas. If you are interested in doing some commercial drone work around TFRs, you can contact me about getting those approvals and COAs.

Keep in mind that doing operations in a TFR can have benefits. One big benefit is for certain types of TFRs the airspace is segregated which means obtaining certain types of approvals could be easier.

How many different types of TFRs are there?

There are 8 different types of TFRs. Each has a different set of facts surrounding why they are issued and who can operate in them. Each of these different types of TFRs will be discussed.

  1. Section 91.137, Disaster/Hazard Areas Temporary Flight Restrictions;
  2. Section 91.138, National Disaster Areas in the State of Hawaii Temporary Flight Restrictions;
  3. Section 91.139, Emergency Air Traffic Rules;
  4. Section 91.141, Presidential and Other Parties Temporary Flight Restrictions;
  5. Section 91.143, Space Flight Operations Temporary Flight Restrictions;
  6. Section 91.144, Abnormally High Barometric Pressure Conditions;
  7. Section 91.145, Management of Aircraft Operations in the Vicinity of Aerial Demonstrations and Major Sporting Events; and
  8. Section 99.7, Special Security Instructions.

Next Page: What type of criminal punishment (prison time) or fines can happen if you fly into a TFR?


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Rupprecht Law’s Analysis of the FAA’s New Educational Use Exception for Drones

drone-law-education-teacher-professor-school

The FAA announced on May 4, 2016 in a memorandum some helpful changes regarding the use of UAS in education.

The reason why this memo was created was that many universities were wanting to offer classes where students would be required to fly the aircraft. This brought up questions such as “does the university need a Section 333 Exemption?” or “does the student need a pilot license?” There were also spin-off questions such as “can we teach the local 4-H, Boy Scouts, etc. about drones?”

The FAA summed it up in three points:

  • A person may operate an unmanned aircraft for hobby or recreation in accordance with Section 336 of the FAA Modernization and Reform Act of 2012 (FMRA) at educational institutions and community-sponsored events[1] provided that the person is (1) not compensated or (2) any compensation received is neither directly or incidentally related to that person’s operation of the aircraft at such events;
  • A student may conduct model aircraft operations in accordance with Section 336 of the FMRA in furtherance of his or her aviation related education at an accredited educational institution;
  • Faculty teaching aviation-related courses at accredited education institutions may assist students who are operating a model aircraft under Section 336 and in common with a course that requires such operations, provided that the student maintains operational control of the model aircraft such that the faculty member’s manipulation of the model aircraft’s controls is incidental and secondary to the students (e.g. the faculty member steps in to regain control in the event the student begins to lose control, to terminate flight, etc.)

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Section 336 of the FMRA says:

(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)).

 

There needs to be one point of clarification on this section in that Section 336 is focused on the FAA, not the public, and tells the FAA that they “may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft” if a model aircraft[2] is meeting all the 5 elements above. The FAA has misapplied this section repeatedly, most notoriously in the recent registration requirement which is currently being sued over by John Taylor and me in the D.C. Circuit. A lengthy blog post on 336 and the registration regulations is here.

The FAA is redefining its interpretation of “hobby or recreational use” as found in Section 336 as “to include operation of UAS to conduct demonstrations at accredited educational institutions or at other community-sponsored events provided the aircraft is not being operated for compensation, in furtherance of a business or incidental to a business.”[3]

UAS Demonstrations

Hobbyists or enthusiasts can fly at an “accredited educational institution or other community-sponsored events to promote the safe use of UAS and encourage students’ interest in aviation as a hobby or for recreational purposes provided the hobbyist receives no compensation of any kind (honorarium or reimbursement of costs), or any such compensation neither directly or indirectly furthers the hobbyists’ business or operation of the UAS.[4]

Keep in mind that the last portion is very broad. If you think this might apply to you, the work around is to just do demos inside a completely enclosed building and avoid all these legal gymnastic problems.

Student Use

The FAA went on to say that just because a student learns about the knowledge of flight does not make the flight not hobby and recreational when they will use that knowledge to get a degree.[5] The link between knowledge, to degree, to job is just “too attenuated” to be considered outside of hobby or recreational use.

The FAA concluded that UAS flying for “students at accredited educational institutions as a component of science, technology, and aviation-related educational curricula or other coursework such as television or film production or the arts more closely reflects and embodies the purposed of ‘hobby and recreation[.]’”[6]

If the student receives any reimbursement for costs or an honorarium then that is NOT hobby and recreational; however, a student may receive financial aid, participating in a work-study program, or being a paid research assistant to a faculty member teaching the course.[7]

Faculty Use

Faculty teaching a course or curricula that uses unmanned aircraft as a component of that course may provide limited assistance to students operating the unmanned aircraft” without changing the student’s hobby and recreational classification or the need for the faculty to obtain FAA authorization.[8]

This limited assistance exception is only where the UAS operation is secondary in the course; however, if UAS operations is the primary reason for the course, the faculty member would need authorization, but the student, as defined above, would not.

If you are an accredited institution interested in obtaining a flight instructing exemption, to date there has only been one exemption ever granted for public flight instructing. Keep in mind that if an educational institution obtains a Section 333 Exemption, they can flight instruct their own faculty because the new 333 Exemptions say, “All training operations must be conducted during dedicated training sessions and may or may not be for compensation or hire.”

It is NOT considered hobby and recreational for a faculty member or assistant to operate a drone as part of their professional duties. Additionally, a professor cannot do a “work around” and get the students to fly the drone for purposes of the faculty member’s professional research objectives.

When Does a University’s Class/Operations NOT Fall Into This Exception?

  • Faculty operating the drone for research and development
  • Faculty supervising students doing research and development using a drone
  • UAS flight instruction where the faculty instructor is actively involved in the operation (not incidental and secondary); however, just teaching without touching the controls would be fine. (Think of it like the faculty is the air traffic controller teaching the student how to land the aircraft.)

Problems I See:

Does the Model Aircraft Have to Be Registered?

Nothing is said in the memo about whether the aircraft must be registered or not. This is most likely an oversight on the FAA’s part since they have been campaigning hard about the need for all aircraft 250 grams or above to be registered.

The FAA’s interpretation of Section 336 is that it prohibits the specific regulation of model aircraft, not the regulation of all aircraft as a whole like it is some sort of civil rights for drones equal protection clause which does not in any way work with the meaning of “special” in the title to Section 336. In other words, how are model aircraft special (as indicated in title of 336) if model aircraft are required to be treated like everyone else?

Are Model Aircraft Special or Not?

There is something seriously incongruous with the FAA’s view of Section 336 and how Section 336 actually reads. The FAA seems to view 336 as a means of allowing model aircraft flights without “authorization”[9] when in reality it is specifically addressed at the FAA telling them to not create any rule or regulation governing model aircraft.

Setting Educational Institutions Up for Failure?

The FAA said, “If an unmanned aircraft is operated as a model aircraft in accordance with the above, then it does not require FAA authorization.” Is there anything else they should do besides authorization? Any operating rules, etc.? This becomes problematic because some of the educational institutions are right NEXT TO AIRPORTS! Furthermore, some are in D.C. right smack dab in the SFRA or FRZ!  For example, Massachusetts Institute of Technology is within Logan’s Class B airspace and George Washington University is within the FRZ. Can MIT students merely notify Logan’s tower and manager in accord with 336 and fly? Wouldn’t that also violate the FAA’s current view that ALL regulations in Part 91 apply to unmanned aircraft such as the requirement to get clearance prior to entering Class B airspace?[10] If you are an educational institution reading this, you definitely need an aviation attorney on your team to help you navigate this area.

FPV Flying

The FAA in their 2014 policy interpretation on the model aircraft rules indicated that FPV racing would NOT fall within Section 336’s definition of model aircraft.[11] An interesting point here is the Federal Aviation Regulations require the pilot to “see and avoid” other aircraft[12] and Section 336 defines the model aircraft as being “flown within visual light of sight of the person flying the aircraft.”[13] This all logically follows that the FAA’s interpretation would be that FPV racing, while possibly permitted under this interpretation, would NOT be permitted under their model aircraft interpretation from 2014 since it would not be considered a “model aircraft” for purposes of Section 336.

Summary

pilotheadshot

If you an educational institution getting into this area, I would highly suggest you seek out competent aviation legal advice. When shopping around for legal help, consider the background of the attorney and if they have any experience because………

Posers will keep your program grounded while an attorney who is a pilot will help it soar.

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[1] This would include “demonstrations at schools, Boy or Girl Scout meetings, Science Club, etc.” Page 1.

[2] (c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model

aircraft’’ means an unmanned aircraft that is—

  • 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.

[3] Page 3.

[4] Page 3.

[5] Page 4.

[6] Page 4.

[7] Footnote 9 on page 4.

[8] Page 5.

[9] Page 3.

[10] 14 CFR 91.131.

[11] “The FAA is aware that at least one community-based organization permits “first person view” (FPV) operations during which the hobbyist controls the aircraft while wearing goggles that display images transmitted from a camera mounted in the front of the model aircraft. While the intent of FPV is to provide a simulation of what a pilot would see from the flight deck of a manned aircraft, the goggles may obstruct an operator’s vision, thereby preventing the operator from keeping the model aircraft within his or her visual line of sight at all times.” Footnote 2 on Page 8-9 of https://www.faa.gov/uas/media/model_aircraft_spec_rule.pdf

[12] 14 CFR 91.113.

[13] Pub. L. 112-95, Section 336(c).


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

FAA Issued Important Clarification on Registering Commercial and Recreational Drones

Drone in a Closet

(March 22, 2016) Many of us have multiple drones and typically have one or two birds we typically fly. Good news is you do NOT need to register your recreational or commercial drones if they are being operated only indoors OR they are not being operated at all. This means you can save $5 and not register your Phantom 2 vision sitting in the back of your attic, closet, or garage. Remember recreational drone operators get one registration they apply to all their drones while commercial operators register each drone.

The FAA explained this in a recent letter dated March 2, “A small unmanned aircraft owner need only register aircraft operated in the national airspace system (NAS). See 14 C.F.R. §§ 47.3(b) and 48.15. Thus, you need not immediately register those small unmanned aircraft that you do not anticipate flying for two to three years. As long as you complete the registration process provided by either, 14 C.F.R. part 47 or 14 C.F.R. part 48 prior to operation of your small unmanned aircraft in the NAS, you will be in compliance with aircraft registration requirements. See 14 C.F.R. §§ 47.3(b), 48.5(a) and 48.15.”

Keep in mind that if you are going to register at some point in the future, you should consider going the Part 47 paper based method as the Part 48 registration process is currently being challenged by John Taylor in a lawsuit in the D.C Circuit Court of Appeals. (I’m helping him).  There is a good chance the drone registration regulations will be struck down as violating the Administrative Procedures Act and Section 336. A more detailed analysis is here. Save yourself the potential headache of re-registering your drone under Part 47 if the Part 48 registry is struck down as invalid and just register via Part 47.


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

The Drone Registration Committee Turned in Their Recommendations to the FAA. Now What?

I’m not going to cover the legal issues with drone registration that I made in the previous blog post. I will only briefly discuss (1) the recommendations, (2) a few potential problems with the recommendations, and (3) what happens next in the rulemaking process.

The aviation rule making committee’s recommendations on drone registration can be viewed here.

(1) Summary of the Recommendations.

UAS Registration Task Force Aviation Rulemaking Committee Recommendations Summary
What category of UAS is covered by the registration requirement?UAS that weigh under 55 pounds and above 250 grams maximum takeoff weight, and are operated outdoors in the NAS.
Do owners need to register each individual UAS they own?No. The registration system is owner-based, so each registrant will have a single registration number that covers any and all UAS that the registrant owns.
Is registration required at point-of-sale?No. Registration is mandatory prior to operation of a UAS in the NAS.
What information is required for the registration process?Name and street address of the registrant are required.

Mailing address, email address, telephone number, and serial number of the aircraft are optional.

Is there a citizenship requirement?No.
Is there a minimum age requirement?Yes. Persons must be 13 years of age to register.
Is there a registration fee?No.
Is the registration system electronic or web-based?The system for entry of information into the database is web-based and also allows for multiple entry points, powered by an API that will enable custom apps to provide registry information to the database and receive registration numbers and certificates back from the database. Registrants can also modify their information through the web or apps.
How does a UAS owner prove registration?A certificate of registration will be sent to the registrant at the time of registration. The certificate will be sent electronically, unless a paper copy is requested, or unless the traditional aircraft registration process is utilized. The registration certificate will contain the registrant’s name, FAA-issued registration number, and the FAA registration website that can be used by authorized users to confirm registration information. For registrants who elect to provide the serial number(s) of their aircraft to the FAA, the certificate will also contain those serial number(s). Any time a registered UAS is in operation, the operator of that UAS should be prepared to produce the certificate of registration for inspection
Does the registration number have to be affixed to the aircraft?Yes, unless the registrant chooses to provide the FAA with the aircraft’s serial number. Whether the owner chooses to rely on the serial number or affix the FAA-issued registration number to the aircraft, the marking must be readily accessible and maintained in a condition that is readable and legible upon close visual inspection. Markings enclosed in a compartment, such as a battery compartment, will be considered “readily accessible” if they can be accessed without the use of tools.

(2) Potential Problems.

Inability for Non-Government Parties to Check.

If registration data is hidden from the public, then how does one check on the recreational individual to make sure they are compliant? It seems that only law enforcement will have access to this database to protect people’s privacy. Local AMA fields won’t have a way to validate compliance.

Validation of the Name and Address.

How does the FAA validate the name and address submitted? If the data that is put in is bad, then the data coming out will be bad. An individual could just put in a false name or address and no one could check unless they went to his address or somehow obtained his driver’s license. Remember that the whole point of registration is to track down the negligent or bad individuals who use a drone. Bad individuals most certainly won’t provide a name and address, unless they were on a one-way mission like the Paris attack. Law enforcement would just run the check and find the false name and false address in the database to match the false name and false registration on the registration paperwork. The FAA will have to go one step further and require that the drone operator be required to (1) possess a valid form of government ID and (2) present it to law enforcement upon request. This will make things harder because the individual will then have to assume an identity and obtain a fake ID, unless he is going on a one-way mission. Remember that Section 336 of the FAA Modernization and Reform Act of 2012 that I talked about in the previous blog post prevents the creation of new regulations affecting model aircraft but does not prevent the FAA from using already existing regulations. 14 CFR 61.3(a) says:

(a) Required pilot certificate for operating a civil aircraft of the United States. No person may serve as a required pilot flight crewmember of a civil aircraft of the United States, unless that person: . . .

 (2) Has a photo identification that is in that person’s physical possession or readily accessible in the aircraft when exercising the privileges of that pilot certificate or authorization. The photo identification must be a:

(i) Driver’s license issued by a State, the District of Columbia, or territory or possession of the United States;

(ii) Government identification card issued by the Federal government, a State, the District of Columbia, or a territory or possession of the United States;

(iii) U.S. Armed Forces’ identification card;

(iv) Official passport . . . .

(l)Inspection of certificate. Each person who holds an airman certificate, medical certificate, authorization, or license required by this part must present it and their photo identification as described in paragraph (a)(2) of this section for inspection upon a request from:

(1) The Administrator;

(2) An authorized representative of the National Transportation Safety Board;

(3) Any Federal, State, or local law enforcement officer; or

(4) An authorized representative of the Transportation Security Administration.

The problem with trying to apply this section to recreational flyers is that 61.3(a) applies to individuals with a “pilot certificate” and 61.3(l) applies to individuals who hold an “airman certificate, medical certificate, authorization, or license[.]”

Updating Address. What happens when you move? How many days do you have before you must update your address in the system?

14 CFR 61.60 says, “The holder of a pilot, flight instructor, or ground instructor certificate who has made a change in permanent mailing address may not, after 30 days from that date, exercise the privileges of the certificate unless the holder has notified in writing the FAA, Airman Certification Branch, P.O. Box 25082, Oklahoma City, OK 73125, of the new permanent mailing address, or if the permanent mailing address includes a post office box number, then the holder’s current residential address.

Once again, this regulation applies to individuals with pilot certificates.

(3) So What Happens Now in the Rule making Process?

Here are two graphical depictions of the FAA’s internal and external rule making process. There are many little steps in the external rule making process that are not covered for brevity’s sake. The red arrow stands for where the registration regulations are and the blue arrow depicts where the commercial drone regulations are.

internal rulemaking process

external rulemaking process

As you can see, we have a long way to go before any drone registration regulations can come out. To give you an idea of how long the rulemaking process takes, the rulemaking process for the commercial drone regulations (Red Arrow) were started in 2009 and the proposed regulations were only published in February of this year. I estimate that the proposed commercial drone regulations (Red Arrow) will not become final for 1-3 years from now. As of today, I checked the DOT’s significant rulemaking report for November and the proposed commercial drone regulations have not even left the FAA to the DOT.

Regarding the registration regulations (Blue Arrow), I don’t have enough information to guestimate but here is a quote from my upcoming book which will discuss the FAA rulemaking process, “In 2001, before the U.S. House of Representatives Sub-Committee on Aviation, Dr. Dillingham testified on the FAA’s rulemaking efforts in response to congressional mandates or NTSB recommendations between fiscal year 1995 and fiscal year 2000.   He said that after the FAA published an NPRM, the ‘FAA took a median time of approximately 2-½ years to complete the rulemaking, although 20 percent of the rules took 10 years or longer to complete.’”[1]

Hopefully, this clears up any questions you have regarding when this regulation is expected to come out. It does not look like the registration regulations will be cleared for take-off prior to Christmas.

[1] U.S. Gov’t Accountability Office, GAO-01-950T, Incomplete Implementation Impaired FAA’s Reform Efforts 1, 3 (2001).


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Two Ways the FAA Can Immediately Help Promote Drone Safety in the National Airspace System

drone safety first sign

Since the House Subcommittee on Aviation is having a hearing on October 7th on “Ensuring Aviation Safety in the Era of Unmanned Aircraft Systems,” I was inspired to write about two things that the FAA can do to immediately promote drone safety.

The FAA can (1) put all the recreational aircraft guidance down in one place and (2)  get FAA certificated pilots involved in the industry.

 

(1) Put Everything Down in One Place.

The FAA has issued advisory circulars and guidance on small unmanned recreational aircraft since 1981.  Over the years the message has not been consistent and at times even contradictory. To illustrate the inconsistency and contradiction, I have compiled this chart on recreational aircraft guidelines. The FAA published their (1) Interpretation of the Special Rule for Model Aircraft, published (2) Law Enforcement Guidance for Suspected Unauthorized UAS Operations, partnered with (3) the Know Before You Fly campaign, published (4) the “What Can I Do With My Model Aircraft?” webpage on the FAA’s website, published (5) Advisory Circular 91-57,  and published (6) an Updated Advisory Circular 91-57 (“91-57A”).

 

Compilation of Recreational Aircraft Guidelines

The aircraft is flown strictly for hobby or recreational use. You can’t make money off the flying incidentally or directly. Sources:  (1),(2),(4),(6).
The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization. Sources: (1),(2),(3),(6).
The aircraft is limited to not more than 55 pounds [Take Off Weight] unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization. Sources: (1),(2),(4),(6).
The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft. See also § 91.113. Sources: (1),(2),(3),(4),(5),(6).
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)). AC 91-57 said 3 miles. Sources: (1),(2),(3),(4),(6).
Do not fly your model in a “careless or reckless manner so as to endanger the life or property of another.” Sources: (2); Section 336(c) of the FMRA; 14 C.F.R. § 91.13, (6).
Do not fly the aircraft beyond visual line-of-sight. Sources: (1),(3),(4),(6) FRMA § 336(c)(2).
“The aircraft must be visible at all times to the operator[.]”Source: (1).
“[T]he operator must use his or her own natural vision (which includes vision corrected by standard eyeglasses or contact lenses) to observe the aircraft.” You cannot use “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.” Source: (1).
“[P]eople other than the operator may not be used in lieu of the operator for maintaining visual line of sight.” No daisy chain. Source: (1).
The FAA mentioned in their Model Rule Interpretation § 91.119(c) which says do not operate the aircraft in a non-congested area “closer than 500 feet to any person, vessel, vehicle, or structure.” Model aircraft “may still pose a risk to persons and property on the ground warranting enforcement action when conducted unsafely.” However, in the Know Before You Fly campaign which the FAA partnered with, it says, “Do not intentionally fly over unprotected persons or moving vehicles, and remain at least 25 feet away from individuals and vulnerable property.” This distance requirement is unclear. Sources: (1) and/or? (3).
Fly no higher than 400 feet above ground level and remain below any surrounding obstacles when possible. Sources: (3),(5),(6).
The “operating site that is of sufficient distance from populated areas. The selected site should be away from noise sensitive areas such as parks, schools, hospitals, churches, etc.” Source: (5).
“Do not operate model aircraft in the presence of spectators until the aircraft is successfully flight tested and proven airworthy.” Source: (5).
“Do not fly in adverse weather conditions such as in high winds or reduced visibility.” Source: (3).
“Do not fly under the influence of alcohol or drugs.” Source: (3).
“Do not fly near or over sensitive infrastructure or property such as power stations, water treatment facilities, correctional facilities, heavily traveled roadways, government facilities, etc.” Source: (3).
“Check and follow all local laws and ordinances before flying over private property.” Source: (3).
“Do not conduct surveillance or photograph persons in areas where there is an expectation of privacy without the individual’s permission.” Source: (3).
“[M]ust comply with any Temporary Flight Restrictions (TFR).”(1),(6)
“Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” (1),(6).

 

As you can see, the FAA has a patchwork of guidance on this area. We need to have all the information in one place and be done with it. The FAA needs to take the pieces and sew them all together so recreational flyers know what is exactly required of them as opposed to them having to piece together the hodgepodge guidance.

Furthermore, it would be helpful to include all the regulations that the FAA believes recreational operators are required to comply with in one place; otherwise, a guy who bought a Phantom off Amazon is going to have no clue about the regulations or even where to start!

 

(2) We Need to Get FAA Certificated Pilots Involved in the Industry

We can do this two ways: (A) take the pilot license suspension/revocation possibility off the table, for the time being, for individuals who have pilot licenses and (B) allow commercial flight operations for flight instructing.

(A) Removing the Possibility of a FAA Pilot License Suspension/Revocation

Pilots stand to lose a lot if they get in trouble with the FAA. Not only can they be fined, they can also get their pilot license suspended or revoked. This creates not a safer environment but actually decreases safety, because the most highly experienced and knowledgeable group of people who can operate safely in the national airspace are on the sidelines in fear of losing their licenses or in the worst case, their livelihood. This creates a “vacuum” of knowledge and also a vacuum in the culture of drone operators. You can still keep the licensed pilots in check with large civil penalties.

(B) Allow Commercial Flight Instruction Under the Section 333 Exemptions

Update: Kansas State University received an exemption to conduct flight instruction with drones.

One of my clients received this statement in their exemption from the FAA, “The petitioner also requested authority to conduct UAS training. At this time, the FAA is unable to authorize UAS operations for training until a further assessment is completed. When the FAA completes its review, we will proceed accordingly and no further action will be required by the petitioner. However, the petitioner is permitted to train its own pilot in commands and visual observers in accordance with condition no. 14 and the other conditions and limitations in this exemption.”  The FAA is not exempting individuals or businesses to do commercial flight instruction.

Furthermore, the FAA clarified in an opinion that public universities are prohibited from obtaining public COA’s for education because education is not considered a “core function” of government.

Since FAA certificated pilots are currently prohibited from commercially doing flight instruction of drones,  how do individuals or businesses get practical flight instruction? Are they expected to just go out and fly at some uninhabited baseball field and learn by trial and error (crash)? There is only one FAA approved flight school for drones in the US and the rest are just all illegally operating.


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Advisory Circular 91-57 Canceled and Updated with AC 91-57A.

Advisory Circular 91-57  was originally published June 9, 1981 and had been current for 34 years, 2 months, 24 days. Interestingly, it was accidentally canceled on August 10, 2014 by the FAA. On September 2, 2015, the FAA canceled it and published Advisory Circular 91-57A.

Let’s get into the analysis.

Compare Background Sections

1981 AC 91-57

2015 AC 91-57A

Modelers, generally, are concerned about safety and do exercise good judgement when flying model aircraft. However, model aircraft can at times pose a hazard to full-scale aircraft in flight and to persons and property on the surface. Compliance with the following standards will help reduce the potential for that hazard and create a good neighbor environment with affected communities and airspace users.Model Aircraft Hazards in the NAS. While aero-modelers generally are concerned about safety and exercise good judgment when flying model aircraft for the hobby and recreational purposes for which they are intended, they may share the airspace in which manned aircraft are operating. Unmanned aircraft, including model aircraft, may pose a hazard to manned aircraft in flight and to persons and property on the surface if not operated safely. Model aircraft operations that endanger the safety of the National Airspace System, particularly careless or reckless operations or those that interfere with or fail to give way to any manned aircraft may be subject to FAA enforcement action.

 

 

Compare and Contrast Operational Restrictions

1981 AC 91-572015 AC 91-57A
Do not fly model aircraft higher than 400 feet above the surface.

 

Model aircraft operators should follow best practices including limiting operations to 400 feet above ground level (AGL).
When flying aircraft within 3 miles of an airport, notify the airport operator, or when an air traffic facility is located at the airport, notify the control tower, or flight service station.When flown within 5 miles of an airport, the operator of the model aircraft provides the airport operator or 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).
Give right of way to, and avoid flying in the proximity of, full-scale aircraft. Use observers to help if possible.The aircraft operates in a manner that does not interfere with, and gives way to, any manned aircraft.
Nothing SimilarThe 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 CBO
Select an operating site that is of sufficient distance from populated areas. The selected site should be away from noise sensitive areas such as parks, schools, hospitals, churches, etc.

 

The aircraft operates in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization (CBO)
Do not operate model aircraft in the presence of spectators until the aircraft is successfully flight tested and proven airworthy

 

Nothing Similar
Nothing SimilarThe aircraft is flown strictly for hobby or recreational use

Compare Voluntary Compliance

1981 AC 91-57

2015 AC 91-57A

This advisory circular outlines, and encourages voluntary compliance with, safety standards for model aircraft operators.Public Law 112-95 recognizes the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the National Airspace System. Accordingly, model aircraft operators must comply with any Temporary Flight Restrictions (TFR). TFRs are issued over specific locations due to disasters, or for reasons of national security; or when determined necessary for the management of air traffic in the vicinity of aerial demonstrations or major sporting events. Do not operate model aircraft in designated areas until the TFR is no longer in force. Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.

 

The two big take-aways are that the airport notification radius was increased to 5 miles and that the FAA believes model aircraft must, not voluntarily, comply.

 

This advisory circular falls short by not fully explaining how model aircraft flyers can operate near an airport.

 

  • It says 5 miles but it is unclear as to nautical or statute miles.
  • It also does not define airport. This is important because there are many private airports all over the place. How do model aircraft flyers get in touch with these airports? Do I have to pull the property records and mail the owner a letter so I can plan a flight in a couple weeks? The airport facility directory does not list all the airports with a phone number for me to call. Furthermore, the AFD’s have the airport manager phone numbers in them so I can call them and ask to get the tower’s number. What happens if I’m wanting to fly after getting off of work and all I have is the airport manager’s phone number who left at 5PM? I can’t fly because I can’t notify the tower via phone. My only other choice is to get an aviation handheld transceiver which only has limited range and could sound horrible at 5 miles.
  • It does not clarify as to what the model aircraft operator must do if the tower tells them to not fly within their airspace. 14 C.F.R. § 91.123 (b) says, “Except in an emergency, no person may operate an aircraft contrary to an ATC instruction in an area in which air traffic control is exercised.” To get even more technical, Class B airports require clearances, while Class C and D airports require only two way radio contact. See 14 C.F.R §§ 91.131(a)(1); 91.129(c); 91.130(c). Do I have to get a “clearance” to fly in Class B? The FAA charged David Zablidowsky with flying in Class B without a clearance and he was a recreational flyer.   Since I have two flight instructor certificates and a commercial certificate, I’m totally not flying in a Class B until I get the tower telling me that I’m cleared. If I’m flying in a Class C or D airport, does the simple phone call suffice for two way radio contact?  After all, this is just an ADVISORY circular while I just referenced hard regulations with the force of law behind them and the FAA used one of them in a prosecution!
  • It does NOT clearly advise non-pilots of what they are required to comply with to safely operate in the national airspace. The new AC says, “Nothing in this AC changes the requirement to comply with the statute or any applicable regulations.” The regulations I just listed above were NOT clarified and this AC gives model aircraft operators a false sense of security.
  • It does not echo what was said in the 2014 Model Aircraft Rule Interpretation. For Example here is a list of what is said in the 2014 2014 Model Aircraft Interpretation but NOT in the new AC:
    • “The aircraft must be visible at all times to the operator[.]”
    • Do not fly the aircraft beyond visual line-of-sight.
    • “[T]he operator must use his or her own natural vision (which includes vision corrected by standard eyeglasses or contact lenses) to observe the aircraft.” You cannot use “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.”
    • “[P]eople other than the operator may not be used in lieu of the operator for maintaining visual line of sight.”
  • It did not clarify how close model aircraft flyers can fly to people. The FAA mentioned in their Model Rule Interpretation § 91.119(c) which says do not operate the aircraft in a non-congested area “closer than 500 feet to any person, vessel, vehicle, or structure.” Model aircraft “may still pose a risk to persons and property on the ground warranting enforcement action when conducted unsafely.” However, in the Know Before You Fly campaign which the FAA partnered with, it says, “Do not intentionally fly over unprotected persons or moving vehicles, and remain at least 25 feet away from individuals and vulnerable property.” This distance requirement is unclear.

In the back of my book, I had to compile everything into a chart that  the FAA said regarding model aircraft because the FAA has said certain things and not echoed them elsewhere. If we are going chronologically, is this the most up-to-date interpretation and we should just ignore the 2014 Model Aircraft Interpretation? If it is both/and, then how in the world is this even advisory?

 

Put it all down in one place.