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These Aren't the Drones You're Looking For

Despite recent PR stunts by Amazon and Lakemaid Beer which have whetted the public's appetite for convenient, efficient and inexpensive on-demand delivery of packages and beer, respectively, such widespread commercial use of drones requires FAA approval. At least that is the FAA's intent with its June 25th publication in the Federal Register of a notice titled "Interpretation of the Special Rule for Model Aircraft" (the "Notice").  Complete with an infographic, helpful Do's and Don'ts and only one new restriction to hobbyists, the Notice appears relatively innocuous. However, what lies behind is a notice which impacts a potential billion dollar industry, the inevitable commercial use of drones.   
 

On June 9, 1981, the FAA issued Advisory Circular 91-57 ("AC 91-57"), which by its own admission, was an, "outline of safety standards for model aircraft operators," compliance with which was voluntary. Some 33 years later, the FAA issued the Notice. So why after more than 30 years has the FAA decided to move away from AC 91-57, which, judging by the relative absence of incidents with model aircraft, has been effective for so long? The FAA states that it is, "issuing this interpretation because we have received many inquiries regarding the scope of the special rule for model aircraft...and the FAA's enforcement authority over model aircraft..."[i] In reality, while never directly mentioned, the Notice has everything to do with the FAA's ongoing efforts to maintain its self-professed authority over the commercial use of unmanned aircraft systems ("UAS").

 

On March 6 of this year, administrative law judge Patrick Geraghty issued a decisional order in the FAA v Pirker[ii] case, striking down the FAA's fine on Raphael Pirker, an order which the FAA is currently appealing. Pirker was fined $10,000 for the careless or reckless operation of an aircraft. The incident at issue involved Pirker's use of a 5 pound Styrofoam drone, which he was using to capture video on behalf of an advertising agency. Among other reasons why Judge Geraghty struck down the fine was his finding that the FAA's 2007 Policy Notice 07-01 ("Notice 07-01") was ineffective as it was arguably an attempt at legislative rulemaking and did not adhere to 5 U.S.C. Section 553(d) which requires 30 days' notice prior to an effective date. What's important about the fact that Notice 07-01 is no longer enforceable is that Notice 07-01 was the vehicle through which the FAA dichotomized commercial UAS activity from hobbyist use of model aircraft, and placed strict restrictions on commercial UAS use.  So strict in fact, to date, no commercial UAS use has been approved south of the Arctic. The ruling of the ineffectiveness of Notice 07-01 was not addressed by the FAA in its appeal brief, and therefore has been waived, arguably exposing a gaping hole in FAA regulatory authority through which adventurous enterprising UAS operators could literally fly a drone.

 

If you are indeed a hobbyist reading this article, be advised that the safety guidelines which you were voluntarily adhering to for the last 30 years are no longer voluntary and in addition, first person view (FPV) piloting of drones is now prohibited.[iii]  However, this was never really about you, this was the FAA's first step in replacing the defunct Notice 07-01 and closing a loophole in their enforcement powers over UAS use.

 

Prior to the issuance of the Notice, the reality of the FAA's regulation of commercial UAS use resembled more of a "because I said so" scenario. However, through the publication of the Notice, the FAA is setting itself up to properly regulate commercial UAS activity in the guise of a safety manual for hobbyists. So while it may be years before you can receive a copy of Terminator 3: Rise of the Machines delivered to your door by drone, if you look closely, the regulatory efforts to control that scenario are slowly taking form.



[i] Notice, page 3.

[ii] Michael P. Huerta, Administrator, Federal Aviation Administration v. Raphael Pirker, National Transportation Safety Board Docket CP-217.

[iii] Notice at 8.

 

 
Garrett Caffee is an attorney at FMJ in the Aviation practice group where he concentrates in the areas of commercial and private aviation, purchase, sale, finance and leasing, as well as cross-border transactions. 
 

 

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