The Shortfalls of Commercial UAV Law

By Stuart Motta

With the wave of consumer drones already flooding the market, few are surprised by the FAA’s efforts to regulate and control the hobby.  The next question, which is hotly debated, is whether or not strict regulation is actually necessary.  Recently the FAA released their part 107 guidelines, a sort of rulebook for how UAVs are to be operated under current law- but the newly introduced verbiage does little to satisfy the many concerns drone enthusiasts have brought to attention.  In addition, many professionals who wish to become involved, or who are already involved, say that the new regulations are getting in the way of business and innovation.

The current state of affairs are arguably better than they were back several years ago, but that isn’t saying much.  During the first snafu (when drones were initially introduced en mass), the government decided that the best way to control the use of drones was to ban their commercial use completely.  They then introduced other restrictions for those who wish to fly privately.  However, there was a catch.  The FAA did not include a public comment period, and decided not to follow other procedures that would allow them to put these restrictions into law.  As a result, a case from 2011 against a commercial operator who supposedly violated FAA law was dismissed by judge Patrick Geraghty of the NTSB (National Transportation Safety Board).  Whether this action was right, wrong, or indifferent is open for discussion, but the dismissal illustrated the lack of coherent and lawful regulations.  Many touted the FAA’s initial rulemaking as illegal and un-enforceable because they did not comply with the traditional route of law passing, and Justice Geraghty agreed.

One of the flaws that resulted in Judge Geraghty’s decision was a weak definition of “commercial operator”.  There are a few very clear instances where hobbyist flight turns into a business, such as a company solely dedicated to providing images and video to real estate agents.  Regardless, there are a vast number of scenarios where making this distinction might not be so easy.  Take for example, the umbrella term of research.  Would a researcher, working on the payroll of a public or private grant, be considered a commercial operator?  The answer is a resounding maybe.  There is a little more leeway in this category than there was the last, as researchers can obtain permits and exemptions for flying with the sole intent of data collection and research.  While this process is not easy, it is mostly possible.  This still doesn’t fill in the intricacies of the classification process, and selectively enforcing such a rule would be arguably worse than a complete ban.  Delving into the murkier side of the “commercial flight” laws, higher education, and education in general.  The initial bout of legislation from the FAA banned commercial flight.  Full stop, end of story.  Kind of.   Included under this blanket were teachers and other people in similar situations.  Teachers didn’t fit into the research category, or the hobbyist category, so surely they must fit into the business category (after all, the teacher business is incredibly lucrative).  Since educators are on the payroll of whatever institution they work for, flying while being a teacher was strictly forbidden.  That is, unless research or hobby is the motive for flight.  But what separates teachers from the other categories, and is the addition of yet another really necessary?  This definition was (and is) concerning by its very nature, because it allowed the FAA to prosecute people based on how they were “feeling” on any particular day (selective enforcement).

Regulations and laws have changed significantly(?) since their first public appearance.  That still doesn’t answer the question, are they really necessary?  As of now, there have been no reported, confirmed instances of drones colliding with planes.  Near misses and sightings are on the rise, but drones have been responsible for exactly zero airplane crashes.  Laws are put in place to avoid accidents and dangers to society, and they must only be passed when required to protect the interests of the people.  Unnecessary baggage should be left at the door, especially if it is simple “feel good” legislation.  Likewise, if current laws are not achieving the desired effect, they should be changed until they do.  Looking at the previous near misses, the problem isn’t as urgent as the beloved government agency says. This is only compounded by the fact that commercial airliners and commercial drones are almost mutually exclusive in their operation- the exception being near airports. While the dangers of drone-aircraft collisions cannot be dismissed entirely, the end of the world is not upon the aviation industry.  Elaborating on this point, it is clear that hiring a drone pilot whose sole job is to film houses for real estate agents is commercial operation.  While filming houses, what are the probabilities of colliding with aircraft?  There is no possibility of colliding with aircraft, under normal operation.  With such a simple task to accomplish, and the negligible chance of an accident occurring, requiring a lengthy licensing process is extremely unnecessary.  If drone laws are truly put in place to protect the public, why should commercial (drone) flight be any different than hobbyist, especially for unmanned aircraft?  Risks are inherent in both, and accidents will undoubtedly happen (just like manned flight), but assigning different laws based on an arbitrary motive is plain crass. Frequency and duration of flights aside, there is little to no difference between someone flying for fun, and someone flying for work.

The solution would be standardized rules that both commercial and hobbyist operators would be required to follow.  In addition to the streamlined set of regulations, simplification of the FAA’s motives and expectations would benefit everyone.   A single, coherent resource with everything a pilot needs to know would massively reduce the number of drone related incidents.  Most members of society (even those that choose to fly near airports) aren’t malicious in their actions, but they will not jump through hoops to find information either.  By organizing laws in the manner they have, the FAA inadvertently created a prime breeding ground for abuse of airspace.  How can this be improved? To start, commercial and hobbyist restrictions could be merged- whether or not the pilot is being compensated for unmanned flight should be irrelevant.  A hobbyist can fly any drone weighing up to 55 pounds (about 25 kilograms) with the basic recreation “license”, while a commercial operator must obtain an Airman Certificate before flying a 3 pound DJI phantom.  A reasonable explanation for this dichotomy is yet to surface, likely due to its nonexistence.