Restrictions on the Commercial-Use of Drones

Many vendors currently offer various types of drones. Increasingly, some use drones for commercial purposes. But, the FAA currently restricts the commercial use of drones. Put simply, persons wishing to use drones for commercial use must obtain an experimental airworthiness certificate from the FAA before deploying the drone.

Some people appear unclear about the rules governing drones. Confusion arises from

  • misunderstanding the FAA’s role,
  • mis-applying long-standing hobbyist guidelines for remote controlled aircraft (R/C), and
  • misunderstanding the legal term “commercial.”

The following generally summarizes the current state of drone usage in the United States.

FAA Current Role, Status, and Interpretations

The story of drone regulation is fairly complex and requires a little history.

Commercial uses of drones appear to have blindsided the FAA. Technically, the FAA has no specific regulations regarding drones as of 2013. (BUT READ ON!) Nevertheless, the FAA can initiate enforcement actions (prosecutions) against drone operators using other standard, regulatory authority or guidelines. Furthermore, arguably, Congress’ passage of the FAA Air Transportation Modernization and Safety Improvement Act of 2012 implies that Congress intends the FAA to have a primary role in drone regulation.

On February 6, 2007, the FAA published  a notice (Docket No. FAA-2006-25714) in the Federal Register entitled Unmanned Aircraft Operations in National Airspace. The notice summarizes the FAA’s position on drones (the FAA calls drones unmanned aircraft systems or UASs).  In short, the FAA maintains

[t]he current FAA policy for UAS [“drone”] operations is that no person may operate a UAS [drone] in the National Airspace System without specific authority.

The notice goes on to carefully distinguish between government, private/commercial, and hobbyist operations. Essentially, using its general regulatory authority, the FAA requires a private/commercial/non-hobbyist operator to apply for and receive an experimental airworthiness certificate for each drone to obtain the requisite “specific authority.” Thus, persons using drones without an airworthiness certificate face potential FAA enforcement actions (prosecution).

In 2012, Congress directed the FAA to promulgate specific regulations to control drone use by passing the general FAA Air Transportation Modernization and Safety Improvement Act of 2012. The Act includes sections requiring the FAA to develop specific rules for the regulation of the use of drones by September 30, 2015.

But in the mean time, current FAA interpretations appear to control. And those interpretations generally require an airworthiness certificate for most drones.

“But I Thought It Was OK to Use Drones As Long As…” or Misunderstanding the Hobbyist Guidelines

Some appear to confuse the narrowly defined guidelines relating to hobbyist model aircraft with general rules for drones.

On June 9, 1981, the FAA posted advisory guidelines (not regulations) relating to remote-controlled model airplanes—also known as R/C aircraft. The guidelines are available as Advisory Circular (AC) 91- 57,  Model Aircraft Operating Standards.

Essentially, in law, an advisory guideline defines how a regulatory agency plans to enforce certain rules. Thus, if one fully complies with the guidelines and definitions (as interpreted by the FAA, not the individual), then the FAA will be unlikely initiate an enforcement action (prosecution).

The genesis of the often-confused “rules” regarding drones rests with the 1981 guidelines. The recreational-use guidelines provide that recreational operation of model aircraft should (summarizing):

  • avoid populated areas,
  • avoid noise sensitive areas,
  • keep model aircraft under 400′ altitude, and
  • avoid operation near an airport or real aircraft.

But, importantly, these guidelines only apply to those uses meeting the advisory’s definitions (as interpreted by the FAA, not as interpreted by individuals).  And a core definition in the guidelines is a recreational hobbyist  (non-commercial use). Thus, these guidelines appear to provide no protection for non-hobbyists or for non-recreational uses. Hobbyist or recreational use means precisely that…and no more.

“But I’m Not Charging Anything” or Misinterpretation of “Commercial”

In law, commercial means something different from what ordinary people might consider commercial. The legal definition of “commercial activity” has a long and highly complex history. But in simple terms, “commercial” generally carries a far broader definition than most people realize.

For example, the following activities might be considered as “commercial” in law:

  • a farmer uses a drone to assess crops and inspect farm activities;
  • a photographer takes video of real estate using a drone;
  • an independent movie producer uses a drone to capture footage for a new movie;
  • a local company uses a drone to deliver coupons for services as a gimmick; or
  • an HVAC company uses drones to inspect A/C handling equipment on roofs.

The mistake that many people make is by interpreting “commercial” as “for money.” The mistake arises in cases such as, “well, as long as I don’t charge for the actual drone use, then I am OK.” Probably not. The commercial nature of the overall activity, and not just whether one charges directly for the drone use, probably defines whether an activity is commercial in law.

Some might try “nod-and-wink” methods in an attempt to “avoid” the commercial definition. But, the FAA is unlikely to view such gimmicks as compelling. Again, the analysis is likely a totality-of-the-circumstances (is this related to commercial activity?) rather than deference to some disguised, law-avoidance gimmick.

Enforcement Actions

As of 2013, the FAA appears to be enforcing the guidelines and rules on a case-by-case basis by sending cease-and-desist letters to alleged violators (failure to comply with the cease-and-desist could lead to additional enforcement actions). See, for example, Fined Drone Pilot Tests U.S. Industry Seen Reaching $89 Billion , Drone use may have violated FAA regulations , Drone use highlights questions for journalistsBeer-delivery drone grounded by FAA, and a summary of cease-and-desist letters via a FOIA request. As these articles and materials attest, the FAA appears to be taking enforcement seriously but has elected to provide notice before imposing sanctions.

Summary: Commercial Use of Drones Limited by Current Law

In conclusion, the FAA currently asserts authority to limit drone usage. Any use of drones is potentially subject to FAA oversight. Specifically, under current interpretations, any commercial use of drones requires an experimental airworthiness certificate prior to operation. To date, the FAA appears to stand by its 1981 advisory guidelines for true, recreational, model aircraft uses—but narrowly applying only to true hobbyists and recreational aircraft. In 2012, Congress directed the FAA to establish new regulations (laws) governing drone use. But, the FAA has until late 2015 to formulate regulations. Until then, the current enforcement regime appears to apply.

Caveats

This article does not address police or government use of drones. Regardless of view on the issue, significant regulatory, privacy, Constitutional, and liability issues remain unresolved—including complex issues such as radio spectrum interference, First Amendment protections, and responsibility for errant drones. Also, local governments increasingly, under their health-and-welfare authority, may promulgate local ordinances restricting drones—for example, see Conoy Township passes ordinance that limits drones’ air space (regulating drones as nuisances).

The foregoing article represents general information and is not legal advice or intended to be legal advice. Contact a lawyer licensed in your state for more information about individual circumstances.

See Related Drone Article

Send in the Drones—Flying in the Face of Danger?, adapted from Shannon Brown, CLE,  Emerging Technologies and the Media: Drones, Hacking, & Technology-Assisted-Just-in-Time News Gathering, 21st Annual Media Lawyers Conference, Pennsylvania NewsMedia Association (Jul. 16, 2013) (CLE, presenter).

Attorney Shannon Brown—Technology Law Lawyer

Attorney Shannon Brown is a Lancaster County, Pennsylvania, based lawyer focusing on technology law issues including information technology law, information governance, data breach, cybersecurity, and privacy. He regularly publishes or presents on emerging legal  topics such as drones, hacking, privacy, media issues, legal ethics, and information technology issues.