Not So Fast…Commercial Drone Legality Still Remains Unclear

On 6 March 2014, in FAA v. Pirker, a NTSB Administrative Law Judge dismissed the first complaint brought by the FAA against the operator of a commercial drone for reckless operation of an aircraft. While some claim that this opinion means that the commercial drones are absolutely legal, serious questions remain, and this opinion is potentially subject to appeal by the FAA. (Update: On March 7, 2014, the FAA stated intent to appeal.) Rather than clarify, the Pirker opinion seems to further obfuscate and confuse what was a fairly clear, temporary policy, pending the formal regulations expected in 2015. Thus, persons considering the operation of commercial drones should consult an attorney in their state familiar with this complex area of law—Internet claims notwithstanding, federal, state, and local laws may still apply. The take away: this isn’t over by a long shot.

Background—Authority to Control “Drone” Use?

The complexity of the situation deserves some background.

Congress gave the FAA statutory authority to provide for the safe operation of aircraft within the National Airspace. 49 USC 40101. National Airspace is essentially defined as any navigable airspace. 49 USC 40102(a)(32) Congress broadly defined aircraft as “any contrivance invented, used, or designed to navigate, or fly in, the air.” 49 USC 40102(a)(6) Furthermore, Congress stated an express policy to “maintain[] safety as the highest priority in air commerce.” 49 USC 40101(a)(1) (emphasis added, note the word commerce). The plain text indicates that Congress gave the FAA broad powers to regulate “any contrivance invented, used, or designed to navigate, or fly in, the air” and which operates in National Airspace. Congress, not the FAA, defines these powers.

In 1981, the FAA issued Advisory Circular 91-57 addressing the operation of model aircraft. The circular was issued in a different era: the R/C aircraft hobby was just starting to take off and legitimate questions arose regarding R/C aircraft use—specifically because the model aircraft were aircraft. The nascent R/C aircraft were, and are, small scale operations that can, as hobbyist activity, be conducted in non-populated areas. Rather than take a draconian, but perfectly legal, stance in 1981, the FAA struck a bargain and issued the Advisory Circular (rather than promulgate detailed and complex formal regulations). In simple terms, the effect of this Advisory Circular is:

  • we, the FAA, have authority to regulate model aircraft (as statutory aircraft) operating in National Airspace per Congress
  • but, we want to be reasonable and fair so we agree not to start an enforcement action (based on our general regulatory structure for aircraft operations) if model aircraft operators voluntarily follow these rules
    • avoid populated areas,
    • avoid noise sensitive areas,
    • keep model aircraft under 400′ altitude, and
    • avoid operation near an airport or real aircraft.

That is, the FAA simply agrees not to initiate enforcement actions if guidelines are voluntarily met.

Note, nowhere does the FAA imply or otherwise state that model aircraft are not aircraft subject to statutory regulation. In fact, a natural reading of the Advisory Circular suggests just the opposite—the FAA can take action if you do not voluntarily comply. Basically, this was the FAA trying to “do-the-right-thing” and avoid absurd results (remember, this was issued in 1981 and the dawn of the anti-regulatory Reagan-era). Specifically, it seems as if the FAA tried to avoid the literal, but perhaps draconian, letter of the law—because, as the statutes mandate, the FAA must regulate all aircraft (of ANY kind) in National Airspace which was the apparent genesis of the Advisory Circular in the first place. (More on this later.) Congress, likewise, neither revised the definitions of aircraft nor retracted any regulatory authority from the FAA.

In the intervening years, model aircraft capabilities dramatically increased—carrying cameras, streaming video, delivering products, and other uses. Those capabilities attracted commercial users. These new commercial uses implicated different issues—especially operation of aircraft over and within populated areas (something expressly prohibited by the model aircraft guidelines).

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 internally 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.” That is, commercial drones are not “illegal”—they simply must follow the stated process to certify the commercial drones. Persons using commercial drones without an airworthiness certificate face potential FAA enforcement actions (“prosecution”). Again, this policy is not a regulation but a re-statement (or statement) of enforcement policy and binding on the FAA. (More on this later.)

In 2012 and as part of a larger transportation bill, Congress passed the general FAA Air Transportation Modernization and Safety Improvement Act of 2012 (Public Law 112-95). The Act directed the FAA to promulgate specific regulations to accelerate the integration of commercial drones into National Airspace  by September 30, 2015.

Also, the Act (Public Law 112-95) creates a new note to 49 U.S. Code § 40101  entitled “Special Rule for Model Aircraft” which expressly defines model aircraft as

  • aircraft “flown strictly for hobby or recreational use” Public Law 112-95, §336 (a)(1) ,
  • flown using good safety guidelines, and
  • not flown within five miles of an airport are exempt from regulations for unmanned aircraft systems.

This definition of model aircraft seems fatal to claims by commercial drone activists that assert that commercial drones somehow fall under the 30 year old R/C model aircraft guidelines because “the term ‘model aircraft’ means an unmanned aircraft that is– (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.” Public Law 112-95, §336 (c) and 49 USC §40101. Thus, the recent note expressly and unequivocally re-asserts Congressional intent that model aircraft are distinctive aircraft (and commercial drones are unmanned aircraft systems).

Together, these documents and actions paint a 30+ year history of drone aircraft -related oversight. The history demonstrates a balancing of policy, fairness, and political issues. Indisputably, the FAA has never promulgated specific drone regulations. But, that does not mean that general FAA regulations do not apply to drone aircraft.

The Pirker Opinion

Pirker represents the first apparent challenge to FAA regulatory authority over drone aircraft. In Pirker, the FAA issued a complaint for alleged reckless operation of an aircraft and issued a civil fine of $10,000. The FAA alleged that Pirker:

  • “deliberately operat[ed] [] an aircraft at extremely low altitudes over vehicles, building, people, streets, and structures;”
  • operated a drone over active streets,
  • caused a pedestrian on the ground to take evasive maneuvers to avoid the drone,
  • operated a drone near “numerous individuals,”
  • operated a drone near a heliport,
  • flew directly towards a building at less than roof-top level, and
  • operated the drone inside a “tunnel with moving vehicles.”

See Attachment 1 in the Slip Opinion. (Side Note: Compare these allegations/claims with the Advisory Circular 91-57 guidelines.)

Pirker challenged the fine. An Administrative Law Judge dismissed the FAA complaint (meaning, there was no “day in court” so the allegations were never vetted in court). But, what the dismissal-opinion means is the subject of significant Internet discussion and confusion. Compare, e.g., Judge dismisses FAA fine against small drone user, AP (Mar. 7, 2014), Administrative Judge Dismisses First Case Ever Against Drone Pilot, Forbes (Mar. 7, 2014); and Commercial Drones Are Completely Legal, a Federal Judge Ruled, MotherBoard (Mar. 6, 2014).

Examining the Pirker Opinion

First, Pirker is an administrative law opinion. As such, it binds the parties but may or may not have application to other people (known as precidential value). The FAA can also appeal the decision—thus, Pirker is not final. (Update: On March 7, 2014, the FAA stated intent to appeal and the appeal stayed the opinion) The, perhaps well-meaning but hyperbolic, statements that Pirker somehow means commercial drones are automatically “legal” are questionable at this point.

Second, Pirker re-asserts that, at minimum, all model aircraft operators must still follow Advisory Circular 91-57 from 1981. That means avoiding populated areas, noise sensitive areas, and interference with other aircraft. Thus, even if Pirker somehow narrows FAA authority, the Guidelines still apply. These Guidelines limit most commercially feasible uses of drones anyway so Pirker really gave little to the commercial drone community. (Again, compare the FAA’s allegations noted above with the Advisory Circular guidelines which, even under Pirker, still apply. Reconciling these two will need to await the appeal(s).)

Third, Pirker re-states that no specific drone regulations exist.  While that is technically true, that is not necessarily the whole story. General regulations governing aircraft might still apply (and would likely be a specific topic on appeal) because, according to statute, model aircraft are aircraft. (Otherwise the Advisory Circular, contrary to Pirker, apparently would have no effect at all.)

Fourth, the outcome, dismissal, arose due to apparent defects in the FAA’s complaint. Reviewing the Order of Assessment (“Complaint”), the opinion concludes that the FAA indirectly cited to a policy statement, Unmanned Aircraft Operations in National Airspace, for some of the allegations. Compare Complaint Items 2, 5, and 6 to Unmanned Aircraft Operations in National Airspace. The opinion notes this issue and further notes that the Policy Statement is not a valid regulation. Pirker [Slip Opinion, 5-6]. Thus, the Complaint appears technically defective, at least in part, because the Complaint seems to cite to non-law policy statements rather than regulations. That is, the Policy Statement applies internally to the FAA but not necessarily externally to the public—thus the implied citations are arguably surplusage. But, those items could be struck from the complaint and an arguably valid complaint, reckless operation of an aircraft, stands. In other words, the problem appears a pleading issue and not a substantive defect.

Potential Problems with the Pirker Opinion

But the Pirker opinion is not without problems, and those problems might lead to reversal of the opinion on appeal. Potential problems include

  • assuming the statutory definition, aircraft, does not mean what it plainly says;
  • somehow claiming Advisory Opinion 91-57 simultaneously does and does not apply; and
  • negating the distinction between personal/hobbyist drone aircraft use and commercial drone aircraft use (despite decades of precedent for such distinctions).

A key assumption in the opinion is that the statutory definition of aircraft does not mean what it says. The opinion argues that the statutory definition of aircraft might lead to seemingly absurd results, including possibly regulating paper airplanes, and thus is somehow null.  Pirker [Slip Opinion, 2, 3-4,  7 at fn 24]. But, the statute plainly states that aircraft are “any contrivance invented, used, or designed to navigate, or fly in, the air.” 49 USC 40102(a)(6) It is up to Congress to correct, if wrong, this plain language definition—and for 30 years, Congress has not done so.

Much of the opinion discusses (the now apparently controversial) Advisory Circular 91-57. The opinion argues that because the FAA issued Advisory Circular 91-57, the FAA cannot apply the FAR to model aircraft and that the statutory definition of aircraft does not apply to “model” aircraft. See Pirker [Slip Opinion, 3-4]. The opinion goes on to conclude, contrary to 30 years of history and context, that model aircraft are now excluded from the FAA’s FAR regulations (seemingly turning the law on its head). Pirker [Slip Opinion, 3] Rather than the natural and historically accurate conclusion that the FAA played-fair with model aircraft operators, to avoid absurd results and due to the relatively benign nature of limited model aircraft operations away from populated areas, the opinion claims the FAA now has little or no power to regulate model aircraft as aircraft under the FAR. Pirker [Slip Opinion, 3-4].

However, the opinion’s analysis conflicts with the opinion’s own conclusions (stating that Pirker did need to comply with the Advisory Circular guidelines, Pirker [Slip Opinion, 7]) and the plain letter of the law which defines aircraft. 49 USC 40102(a)(6) ).  Compare [Slip Opinion, 4] and [Slip Opinion, 7] But, if model aircraft are not aircraft subject to the FAR, then Advisory Circular 91-57 would seem largely moot even though the opinion flatly asserts that it does apply. But if the FAR cannot be applied for infractions, what is the “penalty” for not complying with the voluntary guidelines in Advisory Circular 91-57?  Who enforces the penalty? Contrary to the plain text and natural application of the Advisory Circular, the FAA’s enforcement authority now would be potentially limited to interference with other aircraft and seemingly making most of Advisory Circular 91-57 superfluous. This appears the absurd result that the FAA has tried to artfully avoid for 30 years. (The FAA might now need to enforce the statutory law as written which may mean revoking the 1981 Advisory Circular. The revocation would then subject all aircraft, including hobbyists, to regulation per statute to be fair and consistent with the letter of the law. Congress, not the FAA or courts, would then need to clear-up the problem.)

Furthermore, if the analysis in the opinion stands, this apparently strips the FAA of any safety oversight and opens the field for a myriad of state and local laws.  Again, the inconsistencies in the opinion, addressed on appeal, make the long-term effect of Pirker highly questionable—and even if it stands, opens thousands of other avenues for regulations at the state and local levels. The FAA either does or does not have regulatory authority and if not, then states and local governments do.

Similarly, the dismissal with prejudice (in legal terms, this means the FAA cannot re-file the claims) seems problematic considering that the opinion states that Pirker did need to comply with Advisory Circular 91-57. Pirker [Slip Opinion, 7] Why dismiss with prejudice if Advisory Circular 91-57 does, according to the opinion, apply? While Pirker was dismissed (meaning no trial on the facts occurred) a hypothetical case of similar FAA’s allegations against a drone operator, if true, seem to indicate that the operator would hypothetically violate Advisory Circular 91-57 guidelines by operating in populated areas and near an airport/heliport. So why dismiss with prejudice?

One other complication arises in Pirker regarding distinguishing commercial uses from hobbyist uses (see Unmanned Aircraft Operations in National Airspace ( Docket No. FAA-2006-25714)). Enabling statutes indicate that part of the FAA’s authority in managing aircraft is managing air commerce. 49 USC 40101(a)(1) (e). Thus, axiomatically, a distinction can be drawn between hobbyist model aircraft uses and commercial model aircraft uses—with the latter having different rules. This is why reading these various elements together and in a cohesive and historically-accurate context is necessary to make sense of the situation. The FAA has decades of precedent for distinguishing between private and commercial in everything from pilot’s licenses (distinguishing private pilots and commercial pilots) to aircraft certifications (distinguishing private aircraft from commercial aircraft).

Furthermore, the new commercial drone uses, almost by definition, conflict with the reasonable assumptions underlying Advisory Circular 91-57. That Advisory assumes, reasonably, that small-scale hobbyist model aircraft operation can take place away from populated areas, away from noise sensitive areas, and away from airport operations. This directly conflicts with proposed and current uses of commercial drones which largely require operation over or near populated areas. Thus, contrary to Pirker, a natural distinction can be drawn between commercial uses and traditional hobbyist uses. While the distinction might be less than perfect (using commercial as a basis), having no distinction seems even more problematic. Commercial uses by their very nature might trigger additional inquiry.

These criticisms merely illustrate the complexity of the situation and the remaining unanswered questions. Rather than a bright-line decision, Pirker itself seems to muddy the waters even further and brings what might have been latent issues to the fore. The point is: the FAA either does or does not have authority. And the complications the opinion leads to seem to indicate an appeal would be in the FAA’s favor.

What Might Happen Next with Commercial Drones?

A number of scenarios arise—and most are likely far less palatable than commercial drone activists might want.

  1. The FAA might win an appeal permitting a return to the status quo ante—essentially, continuing the 1981 Advisory guidelines for private model aircraft and experimental airworthiness certificates for commercial drones per Unmanned Aircraft Operations in National Airspace ( Docket No. FAA-2006-25714). Regulations will occur in 2015 per Congressional mandate. This essentially restores the situation to pre-Pirker.
  2. The FAA might lose an appeal. That is, the FAA, and even Pirker notwithstanding, might have no or minimal regulatory authority regarding drones. At least one attorney has argued that the FAA has no regulatory authority—see DroneLawJournal.com. As noted above, if Pirker stands, the continued application of Advisory Circular 91-57 a) creates its own set of problems (what does the FAA enforce for infractions if the FAA cannot apply the FAR?) and b) prevents commercial drone operators from flying in populated or noise sensitive areas or near other aircraft (including other drones?).
  3. The FAA might be forced to revoke Advisory Circular 91-57 and/or the 2007 Policy Statement Docket No. FAA-2006-25714 and instead rotely apply the law as written—asserting that all aircraft in National Airspace (including hobbyists) must comply with FAA regulations. Because these are merely policy statements and not regulations, the FAA can revoke them. This would permit the FAA to directly enforce current regulations and greatly simplify the situation. Both hobbyists and commercial drone operators would probably find this outcome unfortunate, but the administrative law opinion itself suggests this outcome. See Pirker [Slip opinion, fn19 at 6 (stating that the FAA could have just brought the action as an aircraft, not commercial drone action)]. Some might criticize the FAA for “retaliation;” but the outcome might be necessitated by the plain letter of the law—something, ironically, that the FAA successfully avoided for 30 years until pressed by commercial drone users.
  4. The FAA might quickly issue an emergency notice ceasing all enforcement (unlikely), re-asserting Advisory Circular 91-57 as applicable to commercial uses (but Pirker makes this problematic now because what happens if you do not comply?), or defining new guidelines. Those new guidelines wouldlikely derive from Public Law 112-95, §333 which seems to permit some latitude with integrating some unmanned aircraft systems before formal regulations ensue. However, the time allotted for such determination has already lapsed.
  5.  The FAA might revise how its “pleads” the elements of an enforcement action. Rather than citing to Policy Statement Docket No. FAA-2006-25714, the FAA could simply regulate “model” aircraft as aircraft. Drone operators failing to comply with Advisory Circular 91-57 would simply be cited for aircraft violations. While not an optimal solution, the simplified pleading does obviate many of the confusions introduced or highlighted by Pirker.
  6. Pirker might simply stand for the proposition that the FAR cannot be applied, as currently written, to commercial drones. Specifically, this would lead to enforcement under interference with national airspace rather than, perhaps, reckless operation of an aircraft. While unlikely and an apparent distortion of both statute and regulations, this might be an outcome of the appeal. However, this outcome significantly weakens the entire aircraft regulatory scheme.

Conclusion

The FAA’s attempts to clarify and provide structure until full regulations can be developed by 2015 are now in jeopardy. With a projected $10 billion global market for commercial drones and considering the special issues associated with drones (usage in populated areas and potential radio frequency interference), the situation is extremely complex. First Amendment, journalistic, privacy, safety, financial responsibility, liability, regulatory, training, and other issues remain unanswered. But, rather than clarify, the recent administrative opinion might force some hard decisions at the FAA. And, the outcomes from those decisions are unlikely to please many advocating for commercial drone use.

Update

On March 7, 2014, the FAA issued a press release indicating that the FAA will appeal the Pirker decision. The appeal stays (suspends any effect of) the opinion.

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 Articles

Restrictions on the Commercial-Use of Drones

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.