April 30, 2014
Practice Groups:
Oil & Gas;
The FAA’s “Regulations” Pertaining to Unmanned
Aircraft Systems
By: James B. Insco II
Aviation Industry;
Construction and
Engineering
Global Government
Solutions
Amazon’s ambitious proposal to use a fleet of unmanned aircraft systems to deliver
packages may seem like a novelty announced years before its time, but the commercial use
of unmanned aircraft systems is already here. The commercial use of unmanned aircraft
systems, often referred to as unmanned aerial vehicles (“UAVs”), or drones, may be in its
infancy, but it is growing rapidly. Businesses are discovering valuable applications for UAVs
of various sizes, ranging from large commercial adaptations of advanced military hardware to
much smaller platforms available at mall gadget stores. Uses include pipeline inspection,
agricultural, aerial photography, premises surveillance, media production,
telecommunications, and many other applications.
Technological innovation in this field is outpacing the development of the regulatory
environment. Any company considering deploying unmanned aircraft systems should be
keenly interested in the myriad of legal issues surrounding their use, including regulatory
compliance issues concerning the equipment, pilots, and operating limitations, as well as tort
and insurance concerns. This alert provides an overview of a fundamental topic: the scope
of, and challenges to, the current FAA regulations concerning the use of unmanned aircraft
systems.
1. The FAA Claims Comprehensive Regulatory Authority over Unmanned Aircraft
Systems
The Federal Aviation Administration exercises broad regulatory authority in the field of
manned aviation. In short, the FAA regulations cover aircraft airworthiness, pilot certification,
and the classification and operating limitations for the National Airspace System.1 While no
one credibly questions the FAA’s regulatory authority over manned flight, there are
procedural challenges to the scope of the FAA’s authority over unmanned flight. In addition
to the FAA, states and municipalities are trying to stake out spheres of concurrent authority
with respect to regulating the flight of unmanned aircraft systems. For example, 13 states
have enacted bills that regulate drones. While most of those laws focus on public use of
unmanned aircraft, Texas specifically enumerates 19 lawful uses of drones, including many
commercial applications such as oil rig inspections. Tex. Gov’t Code Ann. § 423.00 (West
2014).
The FAA claims regulatory authority over unmanned aircraft systems, and notes that it first
authorized their use in the National Airspace System in 1990. Since that time, the FAA has
authorized limited use of the national airspace for missions it deems to be in the public
interest, including firefighting, disaster relief, search and rescue, law enforcement, weather
observation, and scientific research. Nevertheless, the FAA has been cautious about
permitting wider operations of UAVs, including most non-governmental uses. Indeed,
Congress has been pressuring the FAA to adapt more rapidly. The Federal Aviation
Administration Modernization and Reform Act of 2012 mandated that the FAA integrate
UAVs into domestic airspace by 2015.
The FAA’s “Regulations” Pertaining to Unmanned Aircraft Systems
The current FAA guidance suggests that it may approve public use of unmanned aircraft
systems under controlled conditions for specific types of operations ranging from ground
level up to 50,000 feet. The FAA guidance prohibits their use in Class B airspace, which
surrounds many of the most populated urban centers. Moreover, the current FAA guidance
has permitted limited non-governmental UAV operations in the past, but those approved
users were usually research institutions and universities. The FAA generally did not permit
any commercial use of unmanned aircraft systems.
The FAA’s restriction on commercial UAV use began to soften in July 2013 when the FAA
issued its first Restricted Category Type Certificate for a civilian operator. To date, only two
unmanned aircraft system models have been certified for commercial use. They are only
authorized to fly in the Arctic. The FAA issued that first certificate to an energy company
permitting the company to fly the two types of adapted military drones (Boeing’s Scan Eagle
and Aerovironment’s Puma) in international waters off of the Alaska coast, to survey ocean
ice floes and migrating whale patterns and to assist in evaluating potential Arctic oil
exploration areas.
2. The FAA’s Legal Interpretations Concerning Unmanned Aircraft Systems are
Comprehensive
In a series of guidance statements, the FAA has attempted to clarify its regulatory authority
over unmanned aircraft systems and operations. Most of these statements were simply
issued in releases; they were not developed pursuant to the notice and comment
requirements of a formal rulemaking process for regulatory agencies.
The statements reveal the FAA’s claim of jurisdiction in the field and provide some guidance
for entities seeking to operate within the FAA’s purported authority. They are as follows:
• An unmanned aircraft is an aircraft based on the unambiguous language in the
FAA’s statute and regulations because it is a contrivance/device that is invented,
used, and designed to fly in the air. The FAA’s position is that unmanned aircraft,
regardless of whether the operation is for recreational, hobby, business, or commercial
purposes, are aircraft within both the definitions found in under statutes 49 U.S.C. §
40102(a)(6) and 14 C.F.R. § 1.1. Section 40102(a)(6) defines an aircraft as “any
contrivance invented, used, or designed to navigate or fly in the air.” The FAA’s Federal
Air Regulations similarly define an aircraft as “a device that is used or intended to be used
for flight in the air.” 14 C.F.R. § 1.1. The FAA also cites that Public Law 112-95, Section
331(6), (8), and (9) expressly defines the terms “small unmanned aircraft,” “unmanned
aircraft,” and “unmanned aircraft system” as aircraft. Model aircraft are also defined as
“aircraft” pursuant to Public Law 112-95, section 336(c).
• Unmanned aircraft are subject to FAA regulation. The FAA’s position is that all civil
aircraft are subject to FAA regulation under 49 U.S.C. § 44701.
• The FAA is responsible for air safety from the ground up, including below 400 feet.
The FAA’s position is that 49 U.S.C. § 40103(b)(2) grants the FAA broad authority to
prescribe regulations to protect individuals and property on the ground and to prevent
collisions involving aircraft.
• All unmanned aircraft system operations for commercial or business purposes are
subject to FAA regulation. The FAA’s position is that any such flight requires all
unmanned aircraft flights for commercial or business purposes require a certified aircraft
2
The FAA’s “Regulations” Pertaining to Unmanned Aircraft Systems
and certified pilot in command. The FAA rejects the position that unmanned aircraft
systems operations for commercial or business purposes can be operated under the
special rule for model aircraft found in section 336 of Public Law 112-95.
• There is no open exception to operate unmanned aircraft for business purposes
below 400 feet above ground level. Recreational use of airspace by model aircraft is
covered by FAA Advisory Circular 91-57, which generally limits operations to below 400
feet above ground level and away from airports and air traffic. In 2007, the FAA clarified
that AC 91-57 only applies to modelers and specifically excludes individuals or companies
flying model aircraft for business purposes.
• The FAA does not certify “drone” pilots. For pilot certification purposes, the FAA does
not presently recognize a separate pilot certification applicable to individuals who fly
unmanned aircraft systems or separate category or type ratings for unmanned aircraft.
14 C.F.R. § 61. In the absence of any guidance, presumably most unmanned aircraft
flown for commercial purposes should be piloted by a commercial pilot. Highlighting the
absurdity that can occur when regulations lag behind emerging technology, any
commercial drone pilot should presumably hold a Second Class Medical Certificate
issued by an FAA designated medical examiner to satisfy the FAA’s current regulations.
3. Challenges to the FAA’s Authority to Regulate Unmanned Aircraft Flight Have Cast
Doubt on the Scope of the FAA’s Regulatory Authority.
There are challenges to the scope of the FAA’s authority. In March 2014, an Administrative
Law Judge for the National Transportation Safety Board struck down a $10,000 fine levied
against a drone photographer, holding that the FAA did not have jurisdiction of the
photographer’s drone flight.2 Mr. Michael Pirker was the first UAV operator that the FAA had
ever fined, and they wisely chose a case that presented favorable facts supporting their
authority. Mr. Pirker used a remote-controlled aircraft to film scenes for a commercial for the
University of Virginia Medical School. Mr. Pirker allegedly flew his aerial vehicle into the
approach path for an operating helipad at one of the university hospitals, which allegedly
created a hazard to medical helicopters. Promoting a safe operating environment for aircraft
is a core aspect of the FAA’s charter, so fining a drone operator allegedly directly interfering
with flight operations should have been a less controversial exercise of authority by the FAA.
Nevertheless, NTSB Administrative Law Judge Patrick Geraghty dismissed the fine, holding
that the policy notices the FAA used as a basis for the ban were not enforceable because
they had not been written as part of a formal rulemaking process. The FAA is appealing the
decision, and stated, “The FAA is appealing the decision of an NTSB Administrative Law
Judge to the full National Transportation Safety Board, which has the effect of staying the
decision until the Board rules. The agency is concerned that this decision could impact the
safe operation of the national airspace system and the safety of people and property on the
ground.”
In addition to the Pirker matter, a Texas-based nonprofit organization is petitioning the United
States Court of Appeal for the District of Columbia Circuit to set aside an FAA order
prohibiting the nonprofit’s use of model aircraft in search and recovery efforts.3 The nonprofit
organization used radio-control model aircraft to aid in search and rescue efforts of missing
persons. They operated those model aircraft at altitudes below 400 feet above ground level
and within visual line of site of the pilot. Nevertheless, in a February 21, 2014 e-mail
message, an FAA official ordered the nonprofit organization to cease using the model aircraft
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The FAA’s “Regulations” Pertaining to Unmanned Aircraft Systems
and stated that such use of unmanned aircraft systems in the lower 48 states is illegal. The
nonprofit’s petition argues that the FAA’s order violates the Administrative Procedures Act.
Although there are legal challenges to the FAA’s authority to regulate unmanned aircraft
systems, companies interested in using this technology should develop a comprehensive
corporate policy that takes into account the FAA’s regulatory activity–as well as that of other
actors. In an effort to address some of the procedural challenges, the FAA will likely
introduce proposed rules covering unmanned aircraft systems for public comment later this
year. Interested companies may want to participate actively in that rulemaking process.
Author:
James B. Insco II
james.insco@klgates.com
+1.412.355.6744
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©2013 K&L Gates LLP. All Rights Reserved.
1
The National Airspace System categorizes the airspace above the surface of the earth into six
classes of airspace and establishes different flight rules applicable to each class.
2
Decisional Order, Huerta v. Pirker, NTSB Docket CP-217 (March 6, 2014).
3
Petition for Review, Texas Equusearch v. Federal Aviation Administration, Case. No. 14-1061
(D.C. Cir. Apr. 21, 2014), ECF No. 1489169.
4