COMMERCIAL DRONE USE EXPANDING— FAA RULES COMING
The use of airborne drones in commercial activities has expanded beyond contexts usually associated with aviation. Areas of business usually unconcerned with aviation regulation are coming increasingly within the scope of regulated activity to the extent they use remotely piloted drones for any aspect of their work. This is being seen in fields as diverse as real estate marketing, land surveying, pipeline and power line inspection, and all manner of aerial viewing of every imaginable sort of events and activities. The Wild West is coming to a close, and the marshals have come to town.
As of November 17, 2014, according to an order of the National Transportation Safety Board (NTSB), a drone is an aircraft, subject to full regulation by the FAA. While the NTSB stopped short of declaring a drone subject to all of the rules and regulations of the Federal Aviation Administration, the NTSB made clear that a drone operator may be held responsible by the FAA for flying his drone in a reckless or harmful manner. A suite of proposed and detailed rules for drone operations is now working its way through the FAA rulemaking process.
The NTSB upheld the FAA’s authority to fine a drone operator who, in 2011, flew a fixed wing drone across the University of Virginia campus. The drone flew in close proximity to an active heliport, through a tunnel containing moving vehicles and flew directly at a pedestrian, forcing the pedestrian to take evasive action. The operator was retained by a third party to provide photographs and video of the UVA campus. The FAA fined the operator $10,000 for operating his drone in a dangerous and reckless manner.
Appealing the fine, the drone operator argued that drones are not “aircrafts” but “model aircrafts” because they are not manned in flight. “Model aircrafts” are not subject to the same regulation as “aircrafts” under the FAA. The NTSB ultimately ruled that whether a device was manned or unmanned was not a critical distinction for purposes of defining a flying device.
The NTSB ruled that drones meet the very broad legal definition of “aircraft,” thus enabling the FAA to exercise authority over their operation. In making its ruling, the NTSB overruled a decisional order by an NTSB law judge which claimed that defining drones as “aircraft” would open the door to the FAA’s regulation of paper airplanes, or toy balsa gliders thrown in a dangerous manner. The NTSB did not find that argument compelling, citing the fact that the FAA’s advisories on “model aircraft” suggested flying no higher than 400 feet, whereas the operator’s drone reached heights as high as 1,500 feet on the day in question.
Because the NTSB did not provide a bright line definition of “aircraft” vs. “model aircraft” for the purposes of FAA authority, it appears the FAA has a certain amount of discretion in enforcing its regulations. Because the manned vs. unmanned distinction has now been declared non-definitive for purposes of defining an “aircraft”, the next most likely distinction may come down to the capacity of the flying device itself. Capacity distinctions may run the risk of being declared arbitrary and capricious if not properly laid out.
Drones are an increasingly valuable adjunct to many commercial endeavors. It will pay in immediate future to be up to speed on the rules and requirements for your needs. In hiring out for such needs to be met, you will want to ensure that appropriate rules and industry standards (which do exist) are being followed and incorporated in any such service contracts for drone use.