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Drone Law Journal

Leaked: Latest Summary of Part 107

I obtained a copy of the May 2016 version of the FAA’s “Summary of Major Provisions Under 14 CFR 107,” which reveals some changes that have been made to the originally proposed NPRM.

  • The minimum age for a Remote Pilot in Command is now 16-years-old;
  • The maximum altitude has been changed to 400 feet AGL;
  • There is a read, speak, write and understand English requirement; and
  • Current Part 61 manned aircraft certificate holders will only have to take and pass an online test.

The prior (February 2015) version of this Summary is posted publicly online here.

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Don’t bother with a 333. Wait for Part 107.

At this writing, the FAA has granted over 5,000 Section 333 Exemptions, and over 4,000 petitions sit in a queue, awaiting the FAA’s “careful inspection,” which amount to little more than “rubber stamping.” After all, the only requirements for being granted a 333 is that you submit the proper paperwork and have a pulse. If you are currently awaiting your grant, you’ll get it — eventually. It takes months and months but everyone is granted one. Remember, I even got one for a paper airplane

However, once you receive your grant, will you be able to use it? Remember, the grantee can be anyone (or any company). But the person who actually flies the drone must be a licensed manned aircraft pilot, and they must be current. Does this describe you? If so, you yourself may legally fly commercially under your 333. If not, you must find (and presumably pay) a licensed and current manned aircraft pilot to fly your drone for you.

Even then, you’ll likely not benefit from it, since the myriad of onerous conditions that accompany 333s make it completely impractical — indeed nearly impossible — to operate a drone commercially. Even the FAA’s own NPRM suggests that many of the 333 conditions are entirely unnecessary. Its proposed Part 107 presents far fewer barriers to fly commercially. Unlike a 333, Part 107 proposes no pilot license or medical certificate requirement, no spotter requirement, no 500 buffer from any structure requirement and no NOTAM requirement.

Moreover, despite its claim of illegality, the FAA has never attempted to enforce against anyone solely for operating a drone commercially without a 333. Jason Koebler of Motherboard FOIA’ed all of the FAA’s enforcement actions, and they reveal the agency has never initiated a single enforcement action based solely upon commercial operation. Instead each was based on an alleged violation of some existing FAR, mostly FAR 91.13 (careless/reckless operation). Why isn’t the FAA enforcing against something it claims is illegal? They know there is no legal basis for that claim, and that they will lose.

So why bother getting a 333 now? You’re better off waiting until Part 107 is final. It might not be perfect, but it’s far better than a 333, and it’s likely to become final well before you ever see your 333 granted. In the interim, it appears that as long as you operate safely and responsibly — meaning don’t violate FAR 91.13 — you may fly for pleasure or for profit without the threat of FAA enforcement action.

As always, nothing I write is intended to be, and should not be considered legal advice.

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Coming soon: A new Drone Law Journal

In the upcoming months, the NPRM is expected to become final. At that time, and for the first time ever, there will be actual codified FAA regulations applicable to drones. Since 2013, this site has expressed the fact that (with very limited exceptions), there have been no currently enforceable federal statutes or regulations regarding drones that apply to the general public.

Since upon finalization of the NPRM, this will no longer be the case, Drone Law Journal will transform from the single page that it is, to posts about legal news and issues regarding drones. I have also invited a number of prominent individuals in the "drone world" to be occasional contributors to the site.

I look forward to providing you with interesting and useful information about drone law from this point forward.

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Protected: A Giant Step for Micro Drones

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Rhode Island’s RIAC and its Drone “Ban”

On June 12, 2014, the RIAC released the following statement:

Any use of drones/UAS in the vicinity of any public open air event would violate Rhode Island’s Uniform Aeronautical Regulatory Act (UAR) and Aeronautics Regulations, constituting a misdemeanor. RIAC is enlisting the support of the RI State Police and local law enforcement departments to monitor and enforce this law.

This statement is (1) untrue and (2) threatens the arrest of persons who would not be committing a crime. 

First, a State does not have jurisdiction over aviation, except with respect to the regulation of its own agencies’ aircraft operations. States are otherwise preempted from exercising jurisdiction over that which falls under the exclusive jurisdiction of a federal government agency, in this instance, the FAA. 

Second, Rhode Island’s Uniform Aeronautical Regulatory Act (UAR) and Aeronautics Regulations do not even include any regulation concerning drones. The regulations, adopted on May 12, 2014, and effective June 2, 2014, contain the word “unmanned” twice, and in both instances, it is used in reference to “unmanned balloons.” They do not contain the words, “drone” or the acronym “UAS.” They contain no regulations that pertain to drones, UAS or unmanned aircraft.

Therefore the RIAC is relying upon its definition of “aircraft,” which reads, 

3.3 Aircraft: Any contrivance now known or invented, used, or designed for navigation of, or flight in, the air, except a Parachute or other contrivance designed for air navigation but used primarily as safety equipment. 

The language is different than the CFR & FAR federal definitions, but is still overly broad and clearly subject to challenge. See: Administrator v. Pirker, NTSB Dccket CP-217 (March 6, 2014) and dronelawjournal.com

As stated above, the regulation does not contain the words, “drone” nor the acronym “UAS.” However, since it was adopted on the May 12th, 2014, and effective on June 2, 2014, (rather than in 1958, when the federal versions were adopted), both words were readily known and used, and could have been included into the new regulation if the state wished to clarify that drones and UAS are “aircraft,” but they weren’t.

On June 16, I emailed the RIAC with the following message:

My name is attorney Peter Sachs and I publish dronelawjournal.com. I read with great interest the statement issued by the RIAC on June 12, 2014, which read:

“Any use of drones/UAS in the vicinity of any public open air event would violate Rhode Island’s Uniform Aeronautical Regulatory Act (UAR) and Aeronautics Regulations, constituting a misdemeanor. RIAC is enlisting the support of the RI State Police and local law enforcement departments to monitor and enforce this law.”

I wanted to afford the RIAC an opportunity to comment on and/or clarify the above statement before I publish my article about it, as I see nothing within the UAR that would even remotely apply to drones, nor does any State have any jurisdiction over flight, except with respect to it’s own agencies’ aircraft operations. 

I was hoping your offices could point to exactly which RI statute or regulation it is relying upon to enlist the support of the RI State Police to enforce it.

Thank you in advance. 

Sincerely,

Peter Sachs, Esq. 

On June 17, I received a call from the RIAC’s Aeronautics Inspector, James Warcup, in response to my email the prior day. He informed me that drones are not “banned,” that the RIAC wants to ensure people fly them safely and responsibly, and the statement should probably have been released as a request to do just that, rather than an order to abide by a “law” that he could not identify to me. 

On June 18, 2014, the Rhode Island Airport Corporation‘s General Counsel, Peter Frazier, released a revised statement, which reads:

The Rhode Island Airport Corporation reaffirms its News Release dated June 12, 2014, and provides the following further clarification:

An unmanned aircraft system/vehicle or drone (collectively, “UAS”) constitutes an “aircraft” under Rhode Island’s Aeronautical Regulations (“AR”).  (AR Section 3.3)  No person may operate an aircraft in a careless or reckless manner.  (AR Section 5.3.7 and Rhode Island General Laws § 1-4-10.1)  Failure to obtain Federal Aviation Administration (FAA) approvals or to comply with “FAA Requirements” constitutes a prohibited careless and reckless operation.  (AR Section 3.9)  “FAA Requirements” are defined to include the Code of Federal Regulations, and any applicable guidance, advisory circulars, and directives.  (AR Section 3.17)  The violation of the AR or the Uniform Aeronautics Act constitutes a misdemeanor.  (Rhode Island General Laws § 1-4-19)

In accordance with FAA Requirements, the FAA authorizes UAS operations by three means:  (a) Certificate of Authorization (for public entity operators); (b) Special Authorization Certificate in the Experimental Category (for civil operators); and (c) under the auspices of Advisory Circular 91-57 for Recreational Hobbyists (applying to modelers only (excluding commercial operations)).  RIAC has no information that the FAA has issued any certificates authorizing the use of an UAS in Rhode Island.  The local operation of a UAS without a FAA certificate or in contradiction to an FAA advisory circular constitutes a misdemeanor under Rhode Island law.

What does all this mean?

The RIAC is relying upon AR Section 3.9 or RI’s regulations, which reads, 

3.9 Careless and/or Reckless Acts: Any act that may endanger property and/or the safety of Persons on the ground and/or in the air. Such acts shall include (1) Aircraft Operations other than for the purpose of air navigation on any part of the surface of an Airport used by Aircraft for air commerce (including areas used by those Aircraft for receiving or discharging Persons or cargo), (2) operating an Aircraft in a manner that is a hazard to navigation; (3) failure to obtain approvals or otherwise comply with FAA Requirements, and/or the regulations and directives issued by RIAC, and/or (4) any other acts included under 14 CFR Part 91. (Emphasis added.)

Translated:

1. If you don’t abide by a non-existent FAA regulation, you will be subject to a misdemeanor arrest by the Rhode Island State Police, for violating a RI regulation, which requires you to abide by that non-existent federal regulation. I know, it sounds silly because it is. 

2. But if you are a “non-commercial” hobbyist, operating “under the auspices of Advisory Circular 91-57,” you are exempt from the RI regulation.

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