What is the Legal Fund? The Drone Pilots Association intends to challenge the FAA’s Interpretation of the Special Rule for Model Aircraft, (the “Interpretation”), as published in the Federal Register on June 25, 2014, in the D.C. Circuit Court of Appeals. It is our belief that the Interpretation creates regulations pertaining to model aircraft, which are expressly forbidden by Section 336 of the FAA Modernization and Reform Act of 2012.
The FMRA states:
SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT.
(a) In General. — Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if–
(1) the aircraft is flown strictly for hobby or recreational use; (2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization; (3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization; (4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and (5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).
(b) Statutory Construction. — Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.
(c) Model Aircraft Defined. — In this section, 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.
Here’s how the Interpretation creates new rules or regulations in violation of Section 336:
The Model Aircraft Definition. The Interpretation claims the definition of “model aircraft” applies to all Federal Aviation Regulations (“FARs”). The plain language of Section 336(c), shown in boldface above, makes it abundantly clear that the definition applies only to Section 336 itself. This equates to the promulgation of a new “rule or regulation.”
The Prior Permission Requirement. The Interpretation claims that drone operators must obtain prior permission to fly within 5 miles of any airport. The plain language of Section 336(a)(5), shown in boldface above, indicates all that is required is notice. This equates to the promulgation of a new “rule or regulation.”
The FPV ban. The Interpretation bans the use of “first person view” (“FPV”) operations. The plain language of Section 336(c)(2) requires flights to be conducted within visual line of sight of the person operating the drone, but does not contain any restriction on the use of FPV. This equates to the promulgation of a new “rule or regulation.”
The Commercial Use Interpretation. The Interpretation defines commercial operation in extremely broad and nonsensical terms. Flights conducted that are incidental to a business (which are not considered commercial with manned aircraft) are termed commercial if conducted with a drone. Demonstration flights, whether conducted by manufacturers for marketing and training; for pre-purchase demonstration flights outside of a hobby shop; for paid competitions; or for paid flight instruction are all considered commercial. This equates to the promulgation of a new “rule or regulation.”
We also believe that the FAA violated the Administrative Procedure Act, the law that governs federal agency rulemaking, when it issued the Interpretative rule as an “announcement” in the Federal Register, without prior notice and comment. With its Interpretation, the FAA is not merely interpreting the law, it is changing its past practices and prior interpretation. Doing that requires that prior notice and comment be afforded the public.
Litigation is expensive, and we will need money to pay legal fees. The DPA is hoping you will help fund an appeal of the FAA’s Interpretation. If you are affected now or believe that you will be affected in the future by the Interpretation, we ask that you contribute whatever you are able to fund an appeal. There is a statutory deadline that an action challenging interpretive rulemaking must be filed within 60 days of its publication in the Federal Register. The Interpretive Rule was published on June 25, 2014.
There is, of course, no guarantee that the planned litigation will succeed. All that can be promised is that best legal efforts will be used. You should understand that the fundraising goal displayed on this site is not necessarily the total amount of legal fees that will be incurred, and that there might be additional donation drives. If the initial goal is not met, I will take a poll to determine to which other entity (that is representing the interest of all non-hobbyists) the monies should be transferred.
You should further understand that the Drone Pilots Association is not a non-profit (501(c)(3)) entity, and that any donation you make is not tax-deductible. All monies donated, with the exception of the PayPal’s fees, (2.9% + $0.30 of each donation), will be used to pay legal fees. Lastly, the DPA is not my client. I do not, and will not act as its attorney. I am not soliciting or offering any legal services to anyone.