The current UAS regulatory scheme draws a sharp distinction between the UAS hobbyist and the UAS businessman.  The UAS hobbyist has “voluntary guidelines” he is expected to follow, but is largely free to operate where and how he wants outside navigable airspace.  The UAS businessman, however, is forbidden from any flights unless he obtains a Certificate of Authorization from the FAA, which is neither a quick nor easy process.

Why do we have such an odd, and somewhat irrational, binary system in the United States?  Is this a well thought out system based on a coherent analysis of risks and benefits?  Did a think tank ponder the question long and hard after protracted study?  The answer, unfortunately, is that the system just happened while no one was really paying attention to the evolving technology.

In 1981, the dawn of UAS pre-history, the FAA released AC 91-57, which set out the basic rules for model airplane enthusiasts.  The document is only one page long, and provides little more than common sense advice such as:  give way to full sized aircraft, don’t fly near noise sensitive areas like churches and hospitals, stay below 400 feet, and stay 3 miles away from any airport.

Fast forward to 2007, when the FAA published Policy Notice 07-01.  The Notice addressed the novel question of whether anyone could use AC 91-57 to fly a UAS. The FAA stated:

The FAA recognizes that people and companies other than modelers might be flying UAS with the mistaken understanding that they are legally operating under the authority of AC 91-57.  AC 91-57 only applies to modelers, and thus specifically excludes its use by persons or companies for business purposes.

The decision does not appear to have been based on any analysis of differences between the capabilities of a hobbyist’s UAS vs. a business’s UAS, or a distinction between how a UAS might be flown by the two different operators.  Instead, the FAA’s decision tree can be summed up as:

Step 1:  AC 91-57 applies to hobbyists,

Step 2:  Businesses are not hobbyists,

Step 3:  AC 91-57 does not apply to businesses.

The Amicus Brief filed on behalf of Angel Eyes, Inc., a UAS technology integrator, in the FAA v. Pirker (no hyperlink provided) appeal argues, among other things, that this dual system of regulating UAS is arbitrary and unenforceable.  While this is an interesting argument, it does not take into account that the distinction between commercial and hobbyist operators has moved beyond a mere fluke of regulatory history, and is now enshrined in the United States Code.

In 2012, Congress passed the FAA Modernization and Reform Act which kicked the FAA’s UAS initiatives into high gear.  As part of that effort, however, Congress specifically forbid the FAA from regulating any person who operates a UAS for “hobby or recreational purposes” so long as the UAS is under 55 pounds and flown within line-of-sight.  The only substantive restrictions imposed by the statute are that the UAS can’t be flown within 5 miles of an airport without prior notice to the air traffic control tower, the operator has to follow “a community based set of safety guidelines,” and the UAS has to give way to manned aircraft.  These are basically the same restrictions that were established back in 1981 in AC 91-57.

So as a result, if there are any frustrated businessmen who think it is unfair that hobbyist’s UASs are literally leaving them in the dust, don’t expect the FAA to rationalize the two systems.  The FAA is officially forbidden by statute from doing so, and the current dual system might as well be etched in stone.

(Originally posted June 9, 2014)