The legal status of unmanned aircraft systems (also called UAVs—unmanned aerial vehicles—and more colloquially, “drones”) has now been confirmed to technically be “aircraft” subject to relevant FAR Part 91 general operating and flight rules that govern all of us who share the airspace. The legal status of UAS has been uncertain because of the special treatment the FAA accords to other unmanned aircraft, such as free balloons, kites, rockets, moored balloons, and model aircraft. With the current growth of UAS—and with the expressed interest of the United States Congress spurring FAA rulemaking on unmanned aircraft—this legal confirmation comes at a good time.
This confirmation comes in a recent decision by the National Transportation Safety Board in a case in which the FAA administrator assessed a $10,000 civil penalty against the operator of an unmanned aircraft, alleging that he operated it in a careless or reckless manner in violation of FAR 91.13(a). An FAA assessment order alleges that the respondent remotely piloted an unmanned aircraft, a Ritewing Zephyr, in a series of maneuvers around the University of Virginia campus in Charlottesville, Virginia. The FAA says that he operated the Zephyr at altitudes ranging from the “extremely low”— 10 feet above ground level—and up to 1,500 feet agl, and “directly towards an individual standing on a sidewalk causing the individual to take immediate evasive maneuvers;” “through a tunnel containing moving vehicles;” “under a crane;” “below tree-top level over a tree-lined walkway;” “under an elevated pedestrian walkway;” and “within 100 feet of an active heliport.” The respondent was being paid to take aerial photographs and video of the campus and medical center.
The respondent appealed the FAA order to the NTSB. An NTSB administrative law judge was assigned to the appeal. The respondent filed a motion with the judge asking him to dismiss the case, because the federal aviation regulations—which govern the operation of “aircraft”—do not apply to respondent’s Ritewing Zephyr. The law judge agreed, granting the motion and concluding that the Zephyr was a “model aircraft” to which FAR 91.13(a) did not apply. The judge cited a 1981 FAA advisory circular setting forth safety standards for model aircraft operations. According to the judge, in the circular, “FAA has distinguished model aircraft as a class excluded from the definitions of the term ‘aircraft.’”
The FAA appealed the judge’s ruling to the full five-member NTSB. The board granted the FAA appeal, saying, “This case calls upon us to ascertain a clear, reasonable definition of ‘aircraft’ for purposes of the prohibition on careless and reckless operation in 14 CFR 91.13(a). We must look no further than the clear, unambiguous plain language of 49 USC 40102(a)(6) [the Federal Aviation Act] and 14 CFR 1.1 [FAR 1.1]: an ‘aircraft’ is any ‘device’...‘used for flight in the air.’ This definition includes any aircraft, manned or unmanned, large or small. The prohibition on careless or reckless operation in 91.13(a) applies with respect to the operation of any ‘aircraft’ other than those subject to part 101 and 103.” FAR Part 101 contains regulations governing unmanned free balloons, kites, amateur rockets, and moored balloons. FAR 91.1(a) specifically excludes these aircraft, as well as ultralights governed by FAR Part 103, from the requirements of Part 91. The board distinguished the 1981 FAA Advisory Circular 91-57, cited by the judge. Although the AC outlines and encourages voluntary compliance with certain safety standards for model aircraft operators, it does not specifically exclude “model aircraft” from the definition of “aircraft” for purposes of the FARs. The full board reversed and remanded the case to the law judge for him to make findings on whether respondent operated the aircraft (whose legal status is now confirmed) “in a careless or reckless manner so as to endanger the life or property of another” as proscribed in FAR 91.13(a).
This legal conclusion comes at a time when the FAA, spurred on by Congress, is currently developing a future path for the safe integration of all civil UAS into the national airspace system. More imminently, the FAA is working on a regulatory framework for safely integrating small UAS into the national airspace system, and expects shortly to release a “small UAS” proposed rule for public comment. Pending rulemaking, the FAA has been granting regulatory exemptions on a limited basis authorizing the use of unmanned aircraft in the national airspace system.
John S. Yodice provides legal counsel to AOPA members through Pilot Protection Services.