The FAA Is Trying to Erase the 1981 Document That Legalized Hobby Drones

The agency says that AC 91-57 is no longer necessary.

Oct 10 2014, 9:12pm

Image: John Biehler/Flickr

The Federal Aviation Administration took the first initial steps today toward severely restricting or banning all hobby and commercial drone flights in the country, putting in a request to formally cancel the document under which model aircraft have legally operated since 1981.

The document it wants to kill is called Advisory Circular 91-57, and it's a really important one for those who fly drones: issued in 1981, the document sets the voluntary guidelines under which drones can be flown (you can read much more about that in our earlier explanation here). 

The fact that the guidelines contained within it—do not fly higher than 400 feet, do not operate near an airport, etc.—are just that, guidelines, was seen as an implicit suggestion that there are no legally enforceable regulations under which to fine or arrest drone pilots. 

To be clear: Flying model aircraft before 1981 was technically legal as well, but this document expressly notes that the FAA has no regulations on them and that following the rules outlined in the document is strictly voluntary.

Today, however, the agency issued a memorandum "to request cancellation of AC 91-57, Model Aircraft Operating Standards" (embedded below).

This would apply to both hobby drone pilots and commercial users, except for those with express permission (like some movie studios and one oil company).

"This AC is superseded by statutory language in the FAA Modernization and Reform Act of 2012, Section 336," the memo, written by a member of the agency's Airspace Policy and Regulations Group, said. "The guidance in [AC 91-57] is no longer applicable."

That part is key—earlier this summer, the FAA put out an "interpretation" of that FAA Modernization law that the agency says gives it wider latitude to restrict certain very popular types of drone activity, such as first person view flights. The latest interpretation is much more restrictive than AC 91-57, which has been cited in important court cases regarding the legality of commercial drones.

Viewed through that lens, it shouldn't come as a surprise that the agency wants to kill off the document that explicitly says all its drone rules are voluntary.

Beyond that, the memo notes that a "new advisory circular is under development," which suggests that, rather than putting out a notice for public comment and standard rulemaking, as the agency was ordered to do by Congress, it's thinking about putting out yet another document that's not legally binding.

The latest interpretation, which the agency says is legally binding and enforceable, is being challenged by three separate lawsuits.

"AC 91-57 has guided model aircraft operators safely for over three decades," Brendan Schulman, the lawyer representing those clients, told me. "This proposal to cancel it seems premised on the notion that Congress imposed new regulations on model aircraft in a 2012 statute and by the FAA's June 25 so-called 'interpretation' of that same statute. That is a premise that is being challenged in court by the Academy of Model Aeronautics and other clients."

Cancellation Memo AC 91-57