Deadline to Challenge FAA Interpretation Looms

Time is running out to legally challenge the FAA’s June 25, 2014 Interpretation of the Special Rule for Model Aircraft. If not successfully challenged before August 25, 2014, drone pilots will be barred from operating commercially, barred from flying in “first person view,” barred from operating within 5 miles of any airport without prior permission and will suddenly be subject to all Federal Aviation Regulations. The DPA is trying to raise money to fund a legal challenge.

With its Interpretation, the FAA has summarily “announced” that with the passage of the FMRA of 2012:

  • Compensation of any sort is banned. The FAA claims that flying a drone in a manner that is “in furtherance of a business” is illegal. That includes everything from the obvious (aerial photography) to the less obvious (flight instruction or demonstrations that would further one’s business). Even showing drone-obtained video and a company logo simultaneously online or on-air is considered “commercial.” Drone flights that are “incidental to a business” (which would not be considered “commercial” with a full-size manned aircraft) are considered commercial if done with a drone.
  • Flights within 5 miles of any airport require prior permission. Providing “notice” alone is no longer enough. You must obtain prior permission from ATC or Airport Operations whenever you fly within 5 miles of any airport, heliport, etc. Since the Interpretation doesn’t specify the size of the drone to which it applies, you must call for permission even if it’s a tiny, 1-ounce drone hovering 1-inch above the ground in your backyard.
  • Flying drones using “first person view” (“FPV”) is prohibited. This means you cannot use a modern “watch it on a monitor” system to fly or even the long-accepted “buddy box” method, where a second person (with a separate controller) observes the drone at all time while the pilot flies. Instead, the pilot’s eyes must be able to see the drone at all times while flying.
  • All existing Federal Aviation Regulations apply to drones. The Interpretation claims the definition of “model aircraft” applies to all Federal Aviation Regulations, even though the plain language of Section 336(c) makes it abundantly clear that the definition applies only to Section 336 itself. This means that all Federal Aviation Regulations, even those that cannot logically apply to an unmanned aircraft, apply to drones and the FAA can use any of those regulations for enforcement purposes.

There is, of course, nothing in the FMRA of 2012 that supports any of the FAA’s absurd interpretation. In fact, Section 336 specifically prohibits the FAA from promulgating any rule or regulation regarding a model aircraft or an aircraft being developed as a model aircraft. Yet it has done just that because all of the above is new.

Most important, unlike a “policy” statement, an agency “interpretation” is legally binding from the time it is published in the Federal Register. If the Interpretation is not challenged with sixty (60) days of its publication, courts might consider it permanent and not subject to challenge. The deadline to legally challenge the Interpretation is August 25, 2014. The DPA is attempting to raise legal funds to cover the cost of a legal challenge. If you can help, please do.