Technical Ramblings

Recently, the FAA issued a new policy document on their intended enforcement of drone activities, re-iterating their stance that commercial activities are prohibited, and that they have full regulatory authority over remote controlled model aircraft under their authority to regulate all aircraft.

They asked for comments on regulations.gov, and I submitted my comments. Since comments are only made public after review by the agency involved, I am posting it here as well. (My submission identifier is 1jy-8cv7-nzgk.)

This entire policy is based on a mistaken notion that the “the FAA has considered model aircraft to be aircraft that fall within the statutory and regulatory definitions of an aircraft”; the definition that the FAA uses (“contrivances or devices that are “invented, used, or designed to navigate, or fly in, the air.””) is so broad as to describe everything from a commercial jetliner to a paper airplane, and was clearly never the intent of the creators of the FAA. Considering model aircraft included in the FAA’s regulatory definitions is an absurd notion, as supported by the one case decided so far by the NTSB court: In Pirker v. Huerta: “It is concluded that, as Complainant has not issued an enforceable FAR regulatory rule governing model aircraft operation; has historically exempted model aircraft from the statutory FAR definitions of aircraft by relegating model aircraft operations to voluntary compliance with the guidance expressed in AC 91-57, Respondent’s model aircraft operation was not subject to FAR regulation and enforcement.” (http://www.scribd.com/doc/211088332/Pirker-Decision)

Given the current lack of authority that the FAA has to regulate model aircraft under current rules, this policy of enforcement can not be based on a set of rules: instead, the FAA is attempting to govern based solely on policy documents, entirely evading the process of rulemaking that is required for passing regulations.

This document/rule does not appear to be changing anything in this regard: it is another case of the FAA making an effort to define a policy for enforcement without changing the basic rules and regulations that the agency is working under. The continued lack of any rules or regulations that support this policy mean that this policy is (again) attempting to invoke fear, uncertainty, and doubt into a fledgling industry, hurting the operators of model aircraft who are currently doing so with commercial intent.

While I understand that the FAA has a mandate to ensure safe integration of civilian sUAS into the airspace, this policy does not move further towards that goal; it sets up limitations which are not based on rules with no eye towards safety, and does nothing to move towards the requirements of the FAA Reauthorization Act of 2012.

This policy document continues the FAA’s enforcement of non-existent rules, treating advisory guidelines as law. This position is untenable, and allowing this rule/enforcement policy to stand as is is unhelpful and harmful to the overall community; it will only increase uncertainty, as it continues to be based on FAA policy rather than an official rulemaking process.