How high can a model aircraft fly?


 

The Academy of Model Aeronautics received a letter clarifying the issue that has been raised by many in the model aircraft community.2

How high can I fly my model aircraft and not get in trouble with the FAA?

Let’s look at Section 336 of the FAA Modernization and Reform Act of 2012 to set the context.

Section 336

(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.

Important Points about Section 336

The first thing you should be aware of is that this section was specifically talking to the FAA, not model aircraft operators. The FAA acts in some regards like it was a section directed at model aircraft flyers. See my article Why the FAA’s Drone Registration Requirements Are ILLEGAL

Secondly, the section does NOT prohibit model aircraft flyers from doing anything else who fall into this category.

Thirdly, this section specifically lists out multiple requirements which ALL must be met. Many in the community are under the impression that flying recreationally automatically has them fall into the protections of 336 when that is NOT the case. I have a section explaining this in my Taylor v. FAA (drone registration lawsuit) article. Many recreational flyers are most likely Part 107 recreational flyers which has all sorts of requirements.

Fourthly, this section only applies to the FAA, not other federal agencies or state drone laws. To help comply with the state laws, I created a page listing out as many state drone laws as I could find.

With this in mind, let’s dive into the letter.

 

Text of the Letter from the FAA to the Academy of Model Aeronautics

Dear Mr. Mathewson:

 

This letter addresses whether unmanned aircraft flown under the model aircraft provisions of Section 336 of the 2012 FAA Modernization and Reform Act must be operated below 400 feet above ground level (AL). As stated in the FAA’s Interpretation of the Special Rule for Model Aircraft, and in historical references below, the 400ft may be flown consistently with Section 336 and agency guidance at altitudes above 400 feet when following a community-based organization’s safety guidelines.

The FAA has a long history of guidance advising model aircraft operators to fly below 400 feet AGL to minimize hazard to full-scale aircraft in flight. in 1981 the FAA published Advisory Circular (AC) 91–57 which “outline[d], and encourage[d] voluntary compliance with, safety standards for model aircraft operators” for the stated purpose of reducing the potential for model aircraft posing a hazard to full-scale aircraft in flight and people and property on the ground. In the AC the FAA cautioned: “Do not fly model aircraft higher than 400ft above the surface.”

The FAA reiterated these recommendations in a 2007 Federal Register notice discussing unmanned aircraft operations. The notice stated “[m]odel aircraft should be flown below 400 feet above the surface to avoid other aircraft in flight.” Finally, in a 2015 update to AC 91-57 the FAA advised model aircraft operators to “follow best practices including limiting operations to 400ft [AGL].”

Section 336, the provision specifically addressing model aircraft in the 2012 FAA Modernization and Reform Act, does not contain a definitive altitude limitation for model aircraft operations. Rather, it requires operation of model aircraft “in accordance with a community-based set of safety guidelines….” Community-based organizations, such as the Academy of Model Aeronautics, may establish altitude limitations in their safety guidelines that exceed the FAA’s 400ft AGL altitude recommendation.

Although such safety guidelines may provide for flight above 400 feet AGL, Section 336 also protects the safety of manned aircraft operations by requiring that model aircraft not interfere with and give way to manned aircraft. The state also explicitly affirms that the FAA may pursue enforcement action against model aircraft operators who endanger the safety of the NAS.

Sincerely,

Earl Lawrence

Director

Unmanned Aircraft Systems Integration Office

Part 107 Operators- How High Can They Go?

§107.51   Operating limitations for small unmanned aircraft.

A remote pilot in command and the person manipulating the flight controls of the small unmanned aircraft system must comply with all of the following operating limitations when operating a small unmanned aircraft system:

(a) The groundspeed of the small unmanned aircraft may not exceed 87 knots (100 miles per hour).

(b) The altitude of the small unmanned aircraft cannot be higher than 400 feet above ground level, unless the small unmanned aircraft:

(1) Is flown within a 400-foot radius of a structure; and

(2) Does not fly higher than 400 feet above the structure’s immediate uppermost limit.

This is what is looks like graphically. Keep in mind that when operating under Part 107 that you need to stay 500ft below and 2,000ft horizontally to any clouds.

Summary

Flying over 400ft AGL as a model aircraft flyer meeting all the requirements of 336 is not an automatic violation, but under certain facts, it could be considered to be endangering the safety of the national airspace (like when flying close to an airport traffic pattern).  Additionally, if you are a recreational flyer NOT meeting all the requirements of Section 336, you will fall under Part 107 and must meet all of its requirements (i.e. remote pilot certificate and registration).

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.