The Drone Rules That Never Became Law
How to Become an FAA-Approved Drone Pilot
A Weird Time for Drone Operators
Last week saw the 2018 FAA Reauthorization Act become law, and the new legislation has quite a few implications for people who fly small drones or model aircraft as a hobby. Before diving into the latest changes, it’s worth reviewing how the U.S. Federal Aviation Administration has regulated such things in the past.
Way back in 1981, the FAA issued an “Advisory Circular” that provided guidance for people flying model aircraft. Most modelers considered those guidelines reasonable enough, but if you didn’t conform to them, it was no big deal—they weren’t rules, just recommendations. So, for example, if you flew a model sailplane and caught a thermal that took it more than 400 feet off the ground, the FAA really couldn’t object that you were in violation of its advice to keep lower.
The FAA Modernization and Reform Act of 2012 clarified the picture somewhat, because it included Section 336: Special rule for model aircraft. That section essentially said that the FAA may not regulate model aircraft. It did, however, restrict the definition of model aircraft to something that was flown purely for recreational purposes and was kept within the line of sight of the operator. It further restricted the FAA’s hands-off posture to models that weigh less than 55 pounds, aren’t being flown near an airport, and are “operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.” That last clause has been interpreted various ways, but clearly reflects the interest of organizations like the Academy of Model Aeronautics.
A key part of the FAA Modernization and Reform Act of 2012 was the distinction it made between model airplanes and helicopters being flown for fun and other small unmanned aircraft being operated for commercial purposes. The latter category, that law made clear, was subject to FAA regulation. A 2014 “interpretation” issued by the FAA also expressed the position that flying “within the line of sight” meant the operator was looking at the aircraft, not using video goggles to fly by FPV, or first-person view, by which the pilot controls the model using video from an onboard camera.
Many folks who wanted to use small drones for commercial purposes were for years without much recourse, because the FAA didn’t give them an easy mechanism to do that until 2016, when it issued its Small UAS Rule. But by the end of August in 2016, it became possible to employ small drones for commercial purposes—after passing a test and obtaining the proper certificate, while following certain safety rules, of course.
Some questioned the distinction the FAA was making between recreational and commercial use. After all, why focus the regulatory scrutiny on commercial operators, whom you’d expect to be just as responsible, or even more responsible, than recreational flyers in general. And various troubling incidents—like the drone that crashed on the While House lawn in 2015—seemed to bear out that argument. The real troublemakers were certain recreational flyers, often people with no experience with model aircraft flying a newly purchased drone for fun.
The 2018 FAA Reauthorization Act maintains a distinction between recreational and commercial activities, but the FAA is no longer constrained by law not to impose rules on the former: Section 336, which had previously carved out an exception for model aircraft, has been entirely repealed. In its place is a new Section 349, which covers what the FAA expects of recreational flyers.
The title of Section 349 betrays a very different attitude compared with the earlier Section 336. It reads: “Exception for Limited Recreational Operations of Unmanned Aircraft.” No more calling them model aircraft: Small models—including things sold as toys, even paper airplanes—are referred to as “Unmanned Aircraft.”
That seems a little ridiculous to me. In my view, the FAA is committing what philosophers sometimes call the fallacy of the beard: A paper airplane is clearly not something the FAA should worry about, whereas a large octocopter with whirring blades carrying a heavy camera is. But where do you draw the line? The FAA refuses to set a threshold under which it bows out, insisting that everything not carrying people and capable of flight is an “unmanned aircraft” requiring the agency’s oversight and regulation.
Paper-airplane enthusiasts will, however, be happy to learn that the FAA is allowing the operation of certain unmanned aircraft without “certification” or “operating authority.” There are eight qualifications that must be met for that:
Number 1: “The aircraft is flown strictly for recreational purposes.” That seems reasonable, although it cuts out something that the previous 336 provisions appeared to allow—flying model aircraft for its development, say, by its manufacturer, who thus has a commercial interest in the operation.
Number 2: “The aircraft is operated in accordance with or within the programming of a community-based organization’s set of safety guidelines that are developed in coordination with the Federal Aviation Administration.” This is similar to provisions of the earlier Section 336, but there are two differences. For one, the safety guidelines must be developed with the FAA—no more letting the community-based organization call the shots. Also, the earlier language of Section 336 had said “operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization,” which implied a flyer would have to be a member of such an organization. Now Section 349 replaces and with or, which to my reading says that membership is not required.
Number 3: “The aircraft is flown within the visual line-of-sight of the person operating the aircraft or a visual observer colocated and in direct communication with the operator.” This liberalizes the previous prohibition against recreational FPV flight, allowing that it can be done by a recreational flyer so long as there is a visual observer present. This is a victory for FPVers, who earlier had no way to avoid breaking the rules short of obtaining formal certification as unmanned-aircraft-system pilots.
Number 4: “The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft.” Sure, that’s only reasonable. Though it’s a little odd that the FAA is using this stipulation to define recreational flight—as if commercial drones would sometimes be allowed to interfere or not give way to manned aircraft. Could that really be what the law is implying?
Number 5: “[In airspace surrounding airports] the operator obtains prior authorization from the Administrator or designee before operating and complies with all airspace restrictions and prohibitions.” Again, you have to wonder why this stipulation is being used to define recreational flight: Would the FAA ever allow commercial flight of small unmanned aircraft not to comply with airspace restrictions and prohibitions?
Number 6: “[In other airspace] the aircraft is flown from the surface to not more than 400 feet above ground level and complies with all airspace restrictions and prohibitions. This now makes the 1981 recommendation to keep under 400 feet a hard-and-fast rule. I suppose that’s to stay out of the way of all those Amazon shoe deliveries.
Number 7: “The operator has passed an aeronautical knowledge and safety test described in subsection (g) and maintains proof of test passage to be made available to the Administrator or law enforcement upon request.” So it’s official: You can get carded now for flying a paper airplane. Actually, it’ll take the FAA some time to put the test in place. And it will be interesting to see what that test demands. Presumably it won’t be too hard, or else sales of rubber-band powered, balsa-wood airplanes will surely plummet.
Number 8: “The aircraft is registered and marked in accordance with chapter 441 of this title and proof of registration is made available to the Administrator or a designee of the Administrator or law enforcement upon request.” Your model can get carded, too. This reverses a 2017 setback for the FAA, when its requirement for registering model aircraft was thrown out in court because it violated Section 336’s prohibition on making rules for models.
There are other interesting parts of the new law as well, such as a section that addresses the use of small unmanned aircraft by institutions of higher education. I’m glad to see that there, though it’s troubling to me that it doesn’t cover K-12 schools as well.
I suppose it’s not surprising given the proliferation of small drones and the problematic things some people have done with them that lawmakers were keen to have the FAA regulate recreational flight of model aircraft, drones, or whatever you want to call these little flying things. I do wonder, though, whether more rules will make any difference, given that the sorts of people who are likely to behave recklessly are not likely to follow the FAA’s rules in any event.