Earlier this year, the Federal Aviation Administration (FAA) fined Raphael Pirker $10,000 for flying a small Ritewing Zephyr, a remote controlled plane that retails for under $200. The fine was based on the careless or reckless operation of an “aircraft.” As we discussed in our article, The Law of Drone Photography, an administrative judge agreed with Pirker’s argument that his model plane was not an “aircraft” subject to the FAA’s rules, and dismissed the fine.
Now the National Transportation Safety Board (NTSB) has overruled the first judge and reinstated the fine. This means that model planes are considered a proper aircraft, and subject to FAA rules. And last month, the FAA released its new policy on drones, including using “administrative and legal enforcement action to gain compliance.”
Why Are the Rules for Drone Use in Such Disarray?
The FAA regulates all “aircraft,” which means anything “designed to navigate, or fly in, the air.” This paper airplane I just absentmindedly folded while doing research at my desk is therefore subject to federal law and FAA regulations. (One wonders if your average children’s-birthday-party helium balloon would be considered an aircraft… it is designed to fly in the air, after all).
Of course, the FAA realizes that things like small model airplanes shouldn’t be subject to the same regulations as actual airplanes. Instead, it has a set of recommended voluntary operating standards for model planes, such as not flying above 400 feet, not flying near airports, etc. And most local governments have further regulations about flying model aircraft- NYC has a handful of designated places where it’s allowed, for example. This scheme worked fine for quite a while, as the line between toy aircraft and actual aircraft seemed clear.
The proliferation of commercially available “drones” has muddied these waters. On one hand, the word conjures up images of weaponized unmanned aircraft conducting strikes in conflict zones. On the other, you have what are essentially still toys, like the little quadcopters used in this Cirque du Soleil video. There are many who use drones to take aerial shots for real estate listings and art festivals. With so many variations, the FAA needed to come up with a way to distinguish the drones that are more akin to model airplanes, from those drones that could pose threats to safety, security, and privacy.
The FAA first announced a policy regarding drones in 2007 making this distinction: to qualify as a “model aircraft,” and thus be exempt from the need for a special airworthiness certificate, the craft must be under 55 pounds and be operated “purely for recreational or hobby purposes.” This conversely means that anything flown for commercial purposes (or even just non-purely recreationally) must first get approval or be subjected to fines. Pirker’s drone use, for example, was commercial since he was hired directly by the University of Virginia to film aerial scenes at a football game.
The FAA website states: “A civil UAS [unmanned aircraft system] cannot be operated… unless there is an appropriate and valid airworthiness certificate.” To get a certificate, “Applicants must be able to describe how their system is designed, constructed and manufactured; including engineering processes, software development and control, configuration management, and quality assurance procedures used, along with how and where they intend to fly. If the FAA determines the project does not present an unreasonable safety risk, the local FAA Manufacturing Inspection District Office will issue a Special Airworthiness Certificate in the Experimental Category with operating limitations applicable to the particular UAS.”
In short, getting an airworthiness certificate is a serious pain, so very few people have obtained them.
How Do the FAA Rules Effect Artists?
The FAA drone rules put artists in a strange place: if one uses aerial drone photography purely for art’s sake, it appears that the use is exempted from the FAA regulations (if art is recreational?). If someone else uses the exact same drone in the same manner in order to sell the photos, however, they may now be subjected to fines. What if an artist begins experimenting with drone photography purely for fun, and then later others want to buy the prints? I can imagine a high-art/commercial-art rumble brewing over this (what is art, really?)
The motivation for the FAA policy was to continue to allow toy-like aircraft to fly under the radar (sorry), while strictly regulating private use of larger, faster, and more technologically advanced unmanned aircraft. The current regulation, strangely, splits two identical drones flying in an identical way into either an “Aircraft,” or just “a model plane,” based purely on whether the flight is used for a commercial purpose. Given the poorly defined term, “commercial,” flying a drone that includes a camera may be illegal simply because the owner–privately, in his or her own mind–is contemplating selling the pictures.
The result of this seemingly arbitrary FAA policies and conflicting case law is the stifling of legitimate and safe drone use for “business purposes,” such as filmmaking, journalism, and commercial photography.
Congress is attempting to remedy the situation with the FAA Modernization and Reform Act of 2012, which requires the FAA to actually come up with some workable rules to regulate the use of drones. These rules are supposed to be in place by September 2015, but government bureaucracies aren’t known for their nimbleness.
In the 2007 policy statement on drones, the FAA announced that it had “undertaken a safety review that will examine the feasibility of creating a different category of unmanned ‘vehicles’… focused on operations which do not qualify as sport and recreation, but also may not require a certificate of airworthiness.”
This certainly sounds like the FAA would consider an artistic exception to their drone rules but that policy statement was made seven years ago. So how this will play out still remains a question, given that the first handful of commercial drone flights were only approved in the last few months. Will the rules change as the technology becomes more accepted and safety concerns are addressed? Of course. How fast will the FAA drone rules change? No one knows.
Megan is an attorney and bon vivant with a background in writing about post-post modern literature. She practices intellectual property law and civil litigation. Should you have any questions, comments, complaints, inquiries, arguments, et cetera, feel free to contact her at [email protected]