Drone Law: FAA Regulation of Non-Commercial Drones

IN BRIEF

The Federal Aviation Administration, an agency of the U.S. Department of Transportation, oversees all aspects of civilian aircraft operation in the national airspace system. The surge in civilian use of drones has forced the FAA to consider how drones fit into its existing scheme. This alert focuses on the FAA’s recent announcement that it will require all drones to be registered, and its current treatment of recreational, non-commercial drones.

The FAA Registration Initiative and Recreational, Non-Commercial Use of Drones

In a news conference on Monday, October 19th, the U.S. DOT announced that most drone users will soon be required to register their aircraft with the federal government, possibly by the busy holiday season this year. The initiative includes formation of a task force that will flesh out the details of the registration process and what types of unmanned aircraft it will cover. The task force has until mid-November to complete the job, and regulations are expected in December. Until now, only commercial or public agency operated drones were required to register and had to do so in the same manner that manned aircraft did, which entails a complicated and time consuming process. The new registration system is expected to include a separate and streamlined process for the registration of most drones.   

The new registration requirement is intended to foster accountability by allowing the authorities to track drones back to their users. Currently, the FAA does little to regulate the use of non-commercial, recreational drones. The FAA Modernization and Reform Act of 2012, has set forth certain parameters for the operation of recreational, non-commercial drones. If a recreational drone user operates within those parameters, that person does not need FAA authorization (as commercial drone use requires) and such use is exempt from future FAA rulemaking. Per the FAA guidance, recreational drone users must operate as follows:

• The drone must be flown strictly for recreational or hobby purposes, any use that has even an incidental business purpose likely does not qualify
• It must be flown within the visual line of sight of the operator
• It must be “operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization,” which is understood to include safety standards such as those issues by the Academy of Aeronautics
• It must weigh no more than 55 pounds
• It may not be flown within 5 miles of an airport unless the operator has obtained authorization from the air traffic control tower
• It must not interfere with and must give way to any manned aircraft   

It should be noted that the FAA’s baseline safety guidelines for aircraft presumably apply to recreational drones, which poses somewhat of a conundrum for drone operators. For instance, aircraft may not be operated below an altitude of 500 feet, “except over open water or sparsely populated areas.” In those situations, “the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.” Strict adherence to such standards would significantly restrict the use of recreational drones, but from a practical perspective, the question is one of enforcement. Situations where there is an obvious danger or safety issue are more likely to result in a call or letter from the FAA, and possible penalties.

What’s Next

In FAA Regulation of Drones: Part 2, we will discuss the current FAA landscape with respect to the commercial use of drones, and where you can expect to see significant changes in the next few years.  

Note: Even if a drone operates within FAA parameters, there are other possible legal mechanisms through which they could be regulated. For instance, state and local laws are popping up around the country that seek to regulate the use of drones in various ways. Additionally, there are issues of privacy rights and ownership of the airspace directly above the earth’s surface. These issues will be addressed in future alerts from the Bernstein Shur Drone Team.

Seek legal representation on any particular drone related issues you have. For more information, contact one of our Drone Law Team members today.

This issue of Drone Law Boot Camp was authored by Kelsey Wilcox Libby.