The regulation of UAV, commercial drones, recreational drones and RC Aircraft.
We speak with a lot of drone pilots, operators and businesses. And we can tell you. There is confusion about the FAA laws on drones, commercial use, recreational drone operation and FAA drone regulations. Worse, there is some misinformation about what the FAA wants and expects of drone operators both on the recreational use side, as well as commercial drone operators. Drone law and regulation is complicated by the fact that many states have started to enact laws specifically targeted on drone use.
To help you navigate the FAA regulations, so you can start navigating the skies, we put together this handbook on “Everything FAA & drones / sUAS.” Let us know if you still have questions. We love helping people like you fly safe, and in compliance with the Federal Aviation Administration’s approach to small unmanned aerial systems.
What are the FAA Laws on Drones?
Technically, the FAA doesn’t really have “laws” on drones. The FAA has “regulations” which apply to all aircraft which operate in the national airspace (NAS). Because the FAA has defined a “drone” as an “aircraft,” all of the federal aviation regulations which govern manned flight flight also apply to small unmanned aerial systems. This has created a lot of confusion and controversy.
Some people argue that the FAA has no authority or jurisdiction to regulate drones or unmanned aerial vehicles. In fact, there have been some court challenges on the FAA’s jurisdiction to regulate drones. We won’t get into all those details in this post. The thing you need to know is that the FAA takes the position that it can, in fact, regulate drones. The FAA cites its authority granted under the laws passed by Congress giving the FAA jurisdiction over the NAS and the law which allows the FAA to enforce its regulations regarding all aircraft operating in the NAS. At least one court, in a legal challenge to the FAA Authority to regulate drones, upheld the FAA’s jurisdiction over drones. That court agreed that unmanned aerial vehicles or drones come within the definition of a aircraft.
Managing your risk as a business owner is critical. You cannot manage your risk if you do not understand the legal and regulatory framework in which your business is operating. So unless you want to fight the FAA and incur the legal fees necessary to launch a court challenge, you should do what most businesses are doing. You should get in line behind the FAA, and follow the FAA regulations concerning drone use. A legitimate drone business seeks to understand FAA drone regulations and the drone laws may have been passed in the states where you want to operate.
Drone Regulations: FAA Defines “Drones” as “Aircraft” Setting the Stage for FAA Jurisdiction.
Title 14 Code of Federal Regulations provides the framework for civil aviation, both manned and, now at least according the the FAA, unmanned. Part 1 of these regulations include such things as the Definitions for Civil Aircraft. The definition of “Aircraft” under 14 CFR Part 1 .1 means “a device that is used or intended to be used for flight in the air.” This is important. Since the FAA, backed by court decisions, defines a ‘drone’ as an ‘aircraft,’ drones need to comply with the federal aviation regulations for all aircraft, including manned aircraft. Drones can’t possibly or economically comply with many of the provisions of the federal aviation regulations. This is where section 333 exemptions from the FAA come into play. A petition for exemption is exactly what it implies. You are asking the Federal Aviation Administration for permission to NOT comply (i.e. be exempt) from certain federal aviation regulations which would be too expensive to comply with, or practicable.
Part 21 addresses Certification Procedures for Products and Parts and Part 21. Subpart H addresses Airworthiness Certificates. An airworthiness certificate is an FAA document which grants authorization to operate an aircraft in flight. An aircraft, and those a drone, must be in a condition for safe operation in order to be considered airworthy under FAA regulations. This means your drone needs to be approved by the FAA as “airworthy” before it can be used commercially. Section 333 exemptions are sought from the burdensome and expensive airworthiness part 21 directives included in the federal aviation regulations.
There’re many other exemptions which you will seek if you want to fly your drone for business under section 333. The good drone attorney can help you navigate these drone laws and regulations to grow your commercial drone business.
Regulations Applicable to Commercial Use of Drones.
Do you want to fly a drone for commercial purposes? Then you need permission from the FAA or risk an enforcement action that could include cease and desist orders and substantial fines. FAA permission comes in the form of a Section 333 Exemption AND a civil Certificate of Waiver or Authorization (COA). FAA permission to fly your drone will only be granted if the FA determines your operations involve low-risk, in a controlled environment.
The FAA’s regulatory authority is always ripe for a good debate. For those who wish to comply, the benefits of a Section 333 are clear. No harassment from the FAA or your competitors who are operating legally under a 333. And virtually guaranteed safe flight under the conditions and limitations the FAA will place on your drone operations. Here is the FAA’s spin on its drone regulations.
The Section 333 Exemption process provides operators who wish to pursue safe and legal entry into the NAS a competitive advantage in the UAS marketplace, thus discouraging illegal operations and improving safety. It is anticipated that this activity will result in significant economic benefits, and the FAA Administrator has identified this as a high priority project to address demand for civil operation of UAS for commercial purposes.
The FAA’s small UAS (sUAS) Proposed Rules
It’s true. The FAA has proposed Part 107 be added to the federal aviation regulations which will specifically regulate commercial drone use. The big issue is when the FAA will send the proposed rules to the Office of Management and budget for review, what the OMB will think of the comments it receives and whether the proposed rules will eventually become law under an Act of Congress.
How long will it be before the proposed regulations under Part 107 become law? No one knows. The FAA says by the end of 2016. Most observers thing that is optimistic. Many are guessing spring of 2017 at the earliest. Until then, the only way to fly your drone legally is under a Section 333 exemption and civil COA.
Aren’t Recreational Drones Treated the Same as Model Aircraft Under Aviation Regulations?
First things first. In fact, RC or hobby aircraft are by definition unmanned aerial vehicles. They are both operated from the ground in the NAS as unmanned flight. Unmanned Aircraft (UA) – aka drones – for hobby or recreation purposes meet the statutory definition of “model aircraft” according to the FAA. The FAA has been clear that recreational drones and model aircraft must comply with the laws, statutes and regulations applicable to any aircraft in the NAS.
There has been a significant debate as to whether not the FAA has the authority to regulate model aircraft or recreational drone use. Again, this is a good debate for the courts if you have the money. Let’s start with definitions. What is a model aircraft, which includes recreation drone users, according the the federal aviation administration?
Determination of “Model Aircraft” Status. Whether a given unmanned aircraft operation may be considered a “model aircraft operation” is determined with reference to section 336 of Public Law 112-95:
(1) The aircraft is flown strictly for hobby or recreational use;
(2) The aircraft operates in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization (CBO);
(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 CBO;
(4) The aircraft operates 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 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).
Here is what the FAA says about its existing and continuing jurisdiction over model aircraft, and by extension recreational drone use:
[C]ongress also recognized the potential for [model aircraft] operations to endanger other aircraft and systems of the NAS. Therefore, it specifically stated that “[n]othing 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.” P.L. 112-95, section 336(b). Through this language, Congress specifically recognized the FAA’s existing authority to take enforcement action to protect the safety of the NAS. …
Reading the broad reference to the NAS, along with Congress’ clear interest in ensuring that model aircraft are safely operated, we conclude that Congress intended for the FAA to be able to rely on a range of our existing regulations to protect users of the airspace and people and property on the ground. Therefore, regardless of whether a model aircraft satisfies the statutory definition and operational requirements described above, if the model aircraft is operated in such a manner that endangers the safety of the NAS, the FAA may take enforcement action consistent with Congress’ mandate.
What does this mean? It means both recreational drones and model aircraft are, from the FAA’s point of view, subject to aviation regulations. Laws, rules and regulations addressing operation of the aircraft may include prohibitions on careless or reckless operation, violation of right-of-way rules for converging aircraft. The FAA has stated that both recreational drones and model aircraft that do not comply with those rules could be subject to FAA enforcement action.
President Obama Embraces Commercial Drone Use & Pushes for Regulations.
In February 2015, President Obama issued a presidential memorandum to all executive departments, including the FAA, on drones and UAS. Here are some highlights:
- A wide spectrum of domestic drone users — including industry, private citizens, and Federal, State, local, tribal, and territorial governments — are using or expect to use these systems, which may play a transformative role in fields as diverse as urban infrastructure management, farming, public safety, coastal security, military training, search and rescue, and disaster response.
- Congress recognized the potential wide-ranging benefits of UAS / drone operations within the United States in the FAA Modernization and Reform Act of 2012 (Public Law 112-95) … As compared to manned aircraft, UAS / drones may provide lower-cost operation and augment existing capabilities while reducing risks to human life. Estimates suggest the positive economic impact to U.S. industry of the integration of UAS into the NAS could be substantial and likely will grow for the foreseeable future.
- The Federal Government currently operates UAS in the United States for several purposes, including to manage Federal lands, monitor wildfires, conduct scientific research, monitor our borders, support law enforcement, and effectively train our military. Departments should develop policies which address (a) Privacy Protections, (b) Civil Rights and Civil Liberties Protections, (c) Accountability, (d) Transparency, (e) Reports.