Hold On, Part 107 Applies to What?

By any measure, the popularity and notoriety of unmanned aircraft has mushroomed within the last few years.  This is particularly true for aircraft that weigh less than 55 pounds, popularly referred to as “small drones,” and are available to consumers and professionals at price points that rival DSLR cameras.  Their use for operations such as search and rescue, fire detection, construction management, building inspection, real estate marketing, and other endless commercial uses are becoming evident every day.  Because of their low price points they have also become popular for fun and recreation.  

Since 1981, the Federal Aviation Administration has tried to keep pace with the proliferation of small drones, and until recently has tried to maintain a policy that was “based on whether the unmanned aircraft is used as a public aircraft, civil aircraft or as a model aircraft.”   The FAA, and Congress, followed this trinity designation, and even adopted a statute giving substance to the definition of what is a model aircraft.

Upon reportedly lobbying by a special interest group, however, Congress included a section in the FAA Modernization and Reform Act of 2012  which removed authority from the agency to promulgate any regulation which governed model aircraft “operations” itself defined in the statute as model aircraft “operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.”  (emphasis added).  This carve out of agency authority, known as the “Special Rule for Model Aircraft” understandably has occasioned complexity and misunderstanding in the regulatory landscape, especially because while taking away authority from the FAA with one hand, Congress provided on the other hand that the Special Rule did not limit the ability of the FAA to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system. 

Recently, the FAA adopted a final rule contained in Part 107 of Title 14 of the Code of Federal Regulations.  Relying upon the statement of purpose in the Notice of Proposed Rulemaking for Part 107 that this was to be a business rule, and widely anticipated as such, the FAA issued a surprise reinterpretation in an Advisory Circular asserting that Part 107 also applied to hobby or recreation model aircraft that are not flown in accordance with the Special Rule.   With this one sentence in an Advisory Circular, the FAA has thrown in question the entire scheme of regulation of small unmanned aircraft.

In short, what this means is that recreational flyers have only two options:  they either have to join the special interest group that lobbied for the carve-out in the Special Rule and fly pursuant to its programming, or they have to comply with the more rigorous provisions of Part 107, including licensing, higher age requirements, testing, and TSA vetting.  Indeed the FAA frequently asked questions webpage clearly identifies this Hobson’s choice for recreational flyers.  To make this point clear -- flying a model aircraft on your own for recreation, not within the programming of a “nationwide community-based organization,” is no longer legal unless you are in compliance with Part 107. 

These issues are discussed in more detail in the article you can get here.

`© Robert Rose 2015