The Federal Aviation Administration made it clear today that it plans to continue trying to screw over anyone using drones without its authority, including those who fly them as part of a business and those who participate in first person view flight—the fastest-growing part of the hobby.
Citing "many inquiries" about its drone rules (remember: it doesn't have any) and a bunch of highly-publicized events in the last couple months, the agency issued a policy statement that, at points, delves into the absurd (check out the table comparing "hobby or recreation" activities with "not hobby or recreation" ones).
Most importantly, the agency is trying to assert that commercial flight of drones is illegal, despite there being no official, legally-enforceable regulations against it—a point that the FAA has already lost in court (an appeal is still pending). It's also trying to make the same tired argument that if a drone is used for a commercial purpose, it ceases being a "model" aircraft and becomes a standard one—the exact same argument a judge threw out just months ago. The document also tries to say that these new rules are already in effect, and have been for roughly two years.
In this statement, the agency tries to use the FAA Modernization Act, the 2012 law that Congress originally passed that requires the agency to make commercial drone rules, to rehash the argument.
Basically, in that law, Congress said that the FAA is not allowed to make any regulations that restrict model aircraft that are being flown for hobby use, are less than 55 pounds, operate within line-of-sight of the operator, give way to manned aircraft, are operated at or under the guidance of a national flying club, and are operated at least five miles away from an airport (or with permission from air traffic control). What the FAA argues in the statement is that if an aircraft does not meet all of those provisions, it already has the legal authority to regulate them as it would a normal plane.
"Model aircraft that do not meet these statutory requirements are nonetheless unmanned aircraft, and as such, are subject to all existing FAA regulations, as well as future rule making action, and the FAA intends to apply its regulations to such unmanned aircraft," FAA administrator Michael Huerta wrote in the statement, released for public comment today.
Huerta said that the policy is already in effect, despite just being put out for public consumption today, which is par for the course for the agency, according to Brendan Schulman, the lawyer who is fighting the FAA in two separate cases, including the one the FAA has already lost.
"The 2012 statute instructed the FAA to create rules using the notice and comment rulemaking process, with public input, not to issue policy statements. By stating that this policy is 'effective immediately,' the FAA is once again trying to impose new rules without consulting with the public," Schulman told me.
The wording of the statement, and the fact that it exists, however, should be extremely troubling to anyone who likes to fly FPV or already has a commercial drone business operating. The FAA is essentially saying that it's going to keep harassing you until it can get its act together to put together formal commercial drone rules. If you fly FPV and screw up, it's reserving the right to go after you (apologies for the long block quote, but it's all really quite relevant):
"By definition, a model aircraft must be 'flown within visual line of sight of the person operating the aircraft.' Based on the plain language of the statute, the FAA interprets this requirement to mean that: (1) the aircraft must be visible at all times to the operator; (2) that the operator must use his or her own natural vision (which includes vision corrected by standard eyeglasses or contact lenses) to observe the aircraft; and (3) people other than the operator may not be used in lieu of the operator for maintaining visual line of sight. Under the criteria above, visual line of sight would mean that the operator has an unobstructed view of the model aircraft. To ensure that the operator has the best view of the aircraft, the statutory requirement would preclude the use of vision-enhancing devices, such as binoculars, night vision goggles, powered vision magnifying devices, and goggles designed to provide a 'first-person view' from the model … The FAA is aware that at least one community-based organization permits FPV operations during which the hobbyist controls the aircraft while wearing goggles that display images transmitted from a camera mounted in the front of the model aircraft. While the intent of FPV is to provide a simulation of what a pilot would see from the flight deck of a manned aircraft, the goggles may obstruct an operator’s vision, thereby preventing the operator from keeping the model aircraft within his or her visual line of sight at all times."
So, the FAA is saying any and all FPV flight is not a "model" aircraft use, and the FAA thinks it can go after you if you try to do it. Whether it holds up in court is dubious, but the agency is clearly declaring war on any and all people who don't fly exactly how they like.
"The FAA is also apparently claiming as illegal activities that have existed for decades, such as sponsored model aircraft pilots and radio control contests," Schulman said.
How does the FAA prefer you fly? For free, within line of sight, in the middle of nowhere, and very low to the ground. Here's how absurd the document gets at one point:
So, using a model aircraft to move a box from point to point without any kind of compensation is cool. Using a drone to monitor your crops, when they are grown "for personal enjoyment" is cool. Get paid to do it, and that's not cool. It's a tired argument that the agency has been making for a few years now, and it's one they've lost in court. But why stop now?