3D Robotics

3689578848?profile=originalUnder the amusing headine "Free the Beer Drones", a law expert writing at Slate raises some legal concerns about the FAA's assertion that it has the authority to regulate UAV.  It's a great article, and I encourage you to read the whole thing, but these is the opening paragraph and the three main points:

Currently, the Federal Aviation Administration maintains that anyone operating a drone in the United States must obtain an experimental aircraft permit, which severely limits the number of active drones and the parties permitted to fly them. However, a closer look at the statutory and regulatory laws governing the FAA suggests that the administration may not actually have the authority to require those permits or limit drone usage. If I had a company that wanted to deliver beer by unmanned aerial vehicle (and I wish I did), there are three points I’d raise in my defense against fines levied by the FAA for unlicensed drone delivery.

1) U.S. code and regulations that give the FAA its authority do not define unmanned aircraft, unmanned aerial vehicles, or aerial drones. (Let’s call them all “UAVs.”)

..

2) Even if it has the authority to regulate UAVs, the FAA has not taken the necessary steps to do so. In fact, it’s published other documents suggesting that UAVs are permissible.

...

3) Congress did nothing to confirm the FAA’s current authority to regulate UAVs when it passed the FAA Modernization and Reform Act of 2012.

Read the rest here

E-mail me when people leave their comments –

You need to be a member of diydrones to add comments!

Join diydrones

Comments

  • Bill that couldnt be further from the truth.  The FAA isnt anti profit.  The FAA mandate has changed and they no longer promote aviation as part of their mission statement.  They have also ended many of the cozy business/regulator relationships that had caused accidents, oversights, and possible increased profits by decreasing safety years ago.  Commercial isnt misapplied at all.  It happens to just not work well with the new smaller aircraft technology that is now becoming widely available.  There will most likely be a place for small UAV type commercial aircraft in the regulations that will not entail near the same requirements as larger aircraft.  Just as there are for homebuilts, ultralights, powered parachutes and the new class of light sport aircraft.  Just like there are differences in the rules if you do your own house work, versus being a contractor, driving your own bus or charging people to ride your bus, having your own fishing boat, or charging people for fishing on your boat, the same will be true for UAV's or whatever semantically different word you choose to call them.  By definition they are all aircraft.  And the FAA has regulatory power granted by the people, through their elected officials, who then granted the power to a regulatory agency.  If you dont like it vote in different congressman who want to change it. 

  • Hmmm. I suspect the definition of Commercial has been mis-applied from the original intent of fostering "Airline Business" to "No profit allowed" for any reason, by anybody.  

  • If you look up an FAA regulation on law.cornell.edu (example links in my previous comment), there will be a tab entitled "Authorities (U.S. Code)".  Click on that to see what laws authorized the creation of that particular regulation.  Those laws were created by Congress, so probably the best answer to your question of "who gives the FAA the right..." is "Congress".  On another level, the Constitution gives Congress the right to create laws and We, The People empower the Constitution, so the answer could be "us".  The chain of authority is People -> Constitution -> Congress -> FAA.

    I think your understanding that the FAA's mandate ends with safety is mistaken.  And even if it weren't, the FAA could easily argue that commercial activity has a different set of risks than non-commercial activity, therefore regulating according to commercial activity IS regulating safety.

  • What I want to know is:

    Who gives the FAA the right to discriminate between for-profit and not-for-profit in the air? What grounds do they base their "we control profiting from air use" on?

    It's my understanding their mandate ends with safety. So where do they come from, saying that you are not allowed to make money in the air? Does that not go against the very fabric of our country? Free enterprise and all? How is it possible, other that them just making it up, that they can pose them selves in this fashion?

  • *14CFR91.203a

  • Regardless of whether commercial operations make things safer or more dangerous, the view of pretty much the whole government is that things must be substantially more regulated when money/compensation changes hands.  You're not going to win that argument against the government regardless of how right you may be.

    I'm not an expert in what constitutes a business (or any of this entire topic really), but I suspect being paid to train RC pilots and selling pictures are both business activities that you (probably) conduct as a sole proprietor, and I suspect those activities would not be considered "hobby or recreational" if push came to shove.  Of course, practically it seems fine because the FAA doesn't enforce regulations against those types of uses much.

    There IS a law that says no UAVs -- it's the one that gives the FAA the authority to create the regulations found in 14CFR (see here for the laws that grant such authority: http://www.law.cornell.edu/cfr/text/14/91.203, or see 49USC44101 directly: http://www.law.cornell.edu/uscode/text/49/44101).  An FAA official could issue a citation for violating 14CFR203.1a (operating an aircraft without an airworthiness certificate) and the penalty for such a violation is (I think) not more than $25,000 according to 49USC46301a1A.  The defense of someone flying a drone for fun would be that section 336 of the Modernization Act says that 14CFR103.1a is not allowed to apply to them because their use is "hobby or recreational".  But someone not operating under a "hobby or recreational" use cannot use that defense, and I would guess that selling pictures from a UAV flight or being paid to train RC pilots would negate that defense.  But I could be wrong, of course.  Do you know of any case law that supports the idea that paid activities can still be considered "hobby or recreational"?

  • Moderator

    Jg,

    agreed but I believe that Safety IS the relevant issue, that what the FAA was set up to improve or regulate in the NAS.

    my point is that the compensation received for taking pictures or other data is not going to alter the safety of the activity of flying the UAV. 

    on the contrary, it will probably improve the safety because I will be doing it in a professional way, with good equipment and an expectation of the customer to do a good job.

    Compare this with formula 1 racing now that is safer than it was 20yrs ago, the pay is better and the drivers and mechanics do a professional job. that's all most people here want to do. 

    Benjamin, last time I looked I could have photography or RC models as a hobby (and I still do) and I can be paid to train RC pilots and I can sell pictures. its still a hobby. my business is building the UAV's. 

    Its the safety issue that should be determined, if there is no LAW that says no UAV's then the FAA have nothing to enforce. they are just advisory's or guidelines. 

    It would be very easy to suggest that the FAA are actually making the NAS LESS safe by failing to provide a framework to intergrate our vehicles and businesses in to the NAS in a reasonable way.

  • Tim, the question of whether UAVs are dangerous is irrelevant to whether they are illegal or not -- the answer to the legality question depends only on what laws, regulations, court cases, etc say.  Enforcement ability also has nothing to do with legality -- speeding and marijuana are both illegal, yet both are common.

  • Dwgsparky, I think jg's posts explain the FAA's commercial test pretty well.  Private pilots (a regulatory class of pilots of manned aircraft that aren't allowed to fly commercially) deal with phrases like "pro-rata share" on a daily basis.

    However, I don't think that actually has any bearing here.  FAA regulations (14CFR, particularly 14CFR91) seem to clearly specify that no drones (or any other aircraft) may be operated without airworthiness certificates -- that's regardless of whether they're being operated commercially or not.  So drones are illegal.  Except that the Modernization Act (which takes precedence) specifically carves out an exception for model aircraft for "hobby or recreational" use.  So I don't think it matters whether a drone use is "commercial" as defined by FAA regulations and many followup court decisions -- it only matters whether drone use is "hobby or recreational".

  • Dwgsparky you are correct.  When you recieve compensation in the form of lunch you are now in the realm of a commercial operator.  I never said it wasnt crazy.  That is just the way the rules are written and interpreted now.  The current regulations were not designed to encompass UAV's and what they can do.  As is normal technology outpaces regulation and it will take time for the regulations to catch up to the reality of the situation.  The FAA regulates safety in the air, and the safety of non participants on the ground.  Flying your UAV has nothing to do with Mcdonalds other than it was the form of compensation agreed to.  The FAA does not regulate compensation, just any aircraft operation for compensation. 

This reply was deleted.