Flying commercially in the USA?

Kim:
I would not use the phrase "How does this all work" in this context -- it's more a case of what is actually happening than things "working."

http://www.politico.com/story/2014/02/federal-aviation-administration-faa-drones-103800.html?hp=l18

There is also a thread from November, 2012:
http://forum.freeflysystems.com/index.php?threads/insurance.369/page-2#post-4709
I posted my then current thoughts in message #25.

Andy

 

Hi Kim:
Well, as you probably saw from those articles, the FAA's policy is that there should be no commercial UAV operations in the USA.
As to what people are doing, you'll need to do some Google searching to find out.

It's very hard to make a recommendation based on little I know about the requirements, plus, I'm not sure anything I would suggest would be worth too much. You might consider details on the Jobs and Resume's section of the forum and ask anyone interested to contact you either via email or using this forum's Conversation feature.

Andy.

 

Sorry to disagree, William, but my reading of the actual Court order is (and I write this just as an interested citizen, not an attorney):

1. Model aircraft are not "aircraft" over which the FAA has control -- model aircraft have been specifically excluded from the definition of "aircraft" by the FAA.
2. Model aircraft flown non-commercially fall under AC 91-57 which is a policy document (thus only for guidance).
3. Model aircraft flown commercially, do not fall under AC 91-57.
4. Thus, model aircraft, flown commercially fall neither under the Federal Aviation Regulations nor under AC 91-57.
5. Of note, it is not entirely clear what "model aircraft" actually are (at least it's not clear to me).

That's a very odd situation because the FAA have, effectively, excluded "model aircraft" (whatever that means) from ANY kind of policy/regulation. But to say that that makes commercial use of model aircraft legal is, I would suggest, an error. There is a significant difference between operating under regulations and operating outside of any regulations.

I suspect the FAA will move quickly to rectify its definitional, err...., SNAFU.....

Just my $0.02.
Andy.

 

If you are a member of the Academy of Model Aeronautics you can get liability insurance via them, however if you fly a model aircraft commercially you are not covered.

Andy.

 

William:

I have indeed been following that case, William, and looking at the Court's opinion very closely (with the assistance of a law professor), hence my comment that it's not yet clear that commercial UAV operations are legal -- or if they are right now, they will not be for long.

I'm concerned that the news sources (many of which you cite) are not quite seeing the subtlety of the situation. Sure Pirkler's fine was struck down, and sure, his prosecution under the FARs for reckless flying was also struck down. Furthermore, the Court's opinion highlights a definitional gaffe by the FAA -- the Opinion seems to make it very clear that commercial UAV operations are not covered by the FARs (because the FARs don't cover "model aircraft") and Advisory Circular AC 91-57 does not cover commercial operations of "model aircraft" (only non-commercial use of "model aircraft.")

But, as you correctly point out, the FAA has not lost the case in its entirety -- at least not yet. Sure, the Court's opinion is adverse to the FAA's position, but to mangle the phrase, "it ain't over until the FAAt lady sings."

The FAA will has appealed, and the appeal will be heard by the entire panel of the NTSB's ALJ's (Administrative Law Judges). I've not found the hard data that shows how often the full panel has overturned decisions by individual ALJ's....but until that hearing occurs and the opinion is issued, it's hard to know what the outcome might be.

What I did find was more in the context of what happens when a pilot it investigated by the FAA, and appeals a decision by a single NTSB ALJ:

APPEAL TO THE FULL NTSB​

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"d. The full board [of the NTSB] will not overrule the ALJ’s decision unless the full board finds as a matter of law that the ALJ’s decision was arbitrary or capricious."​

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See http://www.avvo.com/legal-guides/ugc/when-the-faa-investigates-you (the paragraph numbering on this page is in error, but look for the heading "APPEAL TO THE FULL NTSB."​

So the question is, was Judge Geraghty's decision "arbitrary or capricious?" I'm not competent to make that call because it's a question of law, but purely as a private citizen, I found the Court's opinion very well reasoned and entirely supported by the facts of the various documents to which the Court cited. So to me, as Joe Citizen (non-lawyer), it didn't seem arbitrary or capricious at all.

But wait, there's more...

Based on my look at the Code of Federal Regulations (there's a good guide at http://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf), normally the FAA uses the mandated "notice of proposed rule making" (NPRM), but unless I'm mistaken there is also a provision for the FAA to declare an emergency situation and bypass the NPRM process. They have done so before regarding air marshals.

For example, the document I cited above says:

Can an agency issue a final rule without a publishing a proposed rule? ​

Yes, the Administrative Procedure Act (APA) permits agencies to finalize some rules without first publishing a proposed rule in the Federal Register. This exception is limited to cases where the agency has “good cause” to find that the notice‐and‐ comment process would be “impracticable, unnecessary, or contrary to the public interest.” These situations may include emergencies where problems must be addressed immediately to avert threats to public health and safety, minor technical amendments and corrections where there is no substantive issue, and some instances where an agency has no discretion to propose a rule because Congress has already directed a specific regulatory outcome in a law. The agency must state its reasoning for finding good cause in the preamble of the final rule published in the Federal Register.​

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See http://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf (search for heading as there are no page numbers).​

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As I read the above, that means the FAA could, if it so chose, declare an emergency in the public interest, probably citing the safety of the National Air Space, say, and issue an emergency rule without using the NPRM process.

I wouldn't propose to speculate what the emergency rule might say, but I've got a funny feeling it isn't going to say: "Commercial operation of unmanned vehicles in the NAS by unlicensed pilots flying unlicensed aircraft is permitted."

Again, just my $0.02 and please bear in mind that I'm often wrong, but rarely uncertain.
Andy

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