An entirely too thorough look at the absurd state of drone regulations in the United States.
If you want to see the definition of the word “nightmare”, go read this article over at Vice that tries to make sense out of FAA drone regulations, it’s utterly ridiculous attempts at enforcing those regulations, and all the other nonsense going on over in Washington.
The situation is indeed a nightmare. There is no other way to put it. Essentially not even the FAA knows what the hell the regulations are, what they should be or really anything about the whole situation.
To make matters even more interesting, there are several laws already on the books and court cases dating back to the beginning of aviation that make a pretty good case for the FAA not being legally allowed to regulate drones in the first place.
The FAA claims that to use a drone commercially, you have to get a 333 exemption. But the FAA doesn’t have any regulations on the books nor case law to point to that makes commercial drone operation illegal or against the rules in the first place. Right now the most prominent lawyers dealing with drone operations are advising operators to not get the 333 exemptions because A) the FAA can’t give a permit to do an activity that isn’t illegal in the first place, and B) if you do get one you’re putting yourself at risk for breaking the 333 rules which are just as bad as the rest of the situation.
The other interesting thing is that unless you’re flying a drone for commercial purposes (i.e. making money off it), you are using the drone for hobby or personal use. And in that case, the FAA is specifically forbidden, by federal law, from having any jurisdiction at all. The FAA Modernization Act of 2012 specifically states that the FAA has absolutely no jurisdiction over model aircraft if it is flown strictly for hobby or recreational use.
Let’s make things even more interesting: In the wake of some well publicized incidents, a lot of state and local jurisdictions have been rushing to pass restrictions on the use of drones. The problem with that is they can’t. State and local jurisdictions have no legal authority over airspace. They might be able to regulate launching and landing, but actual flying? No. That’s a federal matter.
Then there are the yahoos who keep threatening to shoot down drones. Shooting at any aircraft is a felony. Plain and simple, and carries a maximum 20 years in federal prison.
But… But there’s disagreement in the courts as to whether a drone is an “aircraft” or not, believe it or not. Part of that goes back to model aircraft, which are specifically exempt from FAA regulations except under limited circumstances (i.e. can’t fly near air ports, etc.)
If it’s not an “aircraft” then all bets are off because the FAA has no jurisdiction at all except if the drone intrudes on lawful manned aircraft operations. If it is an “aircraft”, well, that opens up a whole different kettle of worms…
Now add in this fact: There are cases dating back to the early days of flight regarding land owners shooting at aircraft or otherwise trying to impede the operation of aircraft flying over their property. it’s been generally interpreted that you cannot ‘own’ the airspace above your property except up to a certain altitude. While the FAA claims it controls all the airspace in the country from ground level up, according to the courts, it almost certainly doesn’t. There have been legal cases dating back to the 1940s and before that state that the landowner controls the airspace up to a varying amount of altitude that bounces all over the place.
According to some rulings, you would be legal to fly over anyone’s property, at any time, as long as you’re higher than any structure on the property. Other rulings put the altitude at varying distances.
The whole situation is an utter and complete mess.
The FAA is finally going to be coming out with actual rules and regulations later this summer. I’ve seen early drafts, and, surprisingly, most of the new rules actually make sense. The requirement that you have a pilot’s license is being eliminated, a requirement that was utterly ridiculous from the beginning because knowing how to fly manned aircraft has absolutely nothing to do with flying a drone. The two skill sets are completely different. Especially since the big commercial drones literally fly themselves with little or no input from the “pilot”, using GPS, on-board gyros and collision avoidance systems. Requiring a pilot’s license to fly a drone is like requiring you to be a heart surgeon to buy aspirin.
But those regulations don’t do much to resolve the fact that it seems the FAA doesn’t seem to have the legal authority to regulate drones in the first place except with regard to them interacting with manned aircraft.