Under 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
Comments
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"?
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".
But if MY business is building UAVs (for profit) that's fine with the FAA, now if I take a picture of my friends house with my UAV (and I don't charge him) then that's OK, but if he buys me lunch then that's a commercial enterprise by my UAV and not allowed!
That's crazy, I understood the FAA responsibility was to regulate Safety in the air? not in MacDonalds
I don't see how the the difference in the 2 activities causes more (or less) DANGER to other air users??
No, I agree with Benjamin. When I read that thing about the farmers flying over their own land, my Weasel-Word buzzer went off big time! It was quite clear to me that they were really only saying if was fine for a farmer to fly hobby airplanes over their farms, which is obvious. But in no way were they saying they would allow farmers to use UAV's over their farms for the purposes of helping conduct the business of farming.
This "incidental to business" thing cannot be true. If it was, it would mean that... a mining operator was allowed to fly them for stockpile management, or exploration. The police would be able to use them for accident reconstruction. Etc.
-
1
-
2
of 2 Next