We have all seen them—videos of chimps swatting down quadcopters with branches, majestic photos of natural scenery taken from a bird’s-eye view, and even shots of alleged criminals in action. In contrast to the comic book heroes who searched tirelessly for that perfect photo to grace the cover of the local newspaper, many of the images we see on the news today are harvested by the public. And, many of the most-dynamic images are obtained by using drones. As one might expect, when such images are in demand, currency is often exchanged. This has raised questions regarding where to draw the line between commercial and hobby operation of drones (technically called “Unmanned Aircraft Systems” or “UAS”) and when the media may pay for images gathered by such operators. The FAA recently issued an opinion letter addressing these questions.
Unsurprisingly, the FAA opined that commercial media may only use UAS to gather images if the FAA approves the operation. However, the FAA made special efforts to distinguish between incidental images gathered by hobbyists (under the Special Rule for Model Aircraft of section 336 of the FAA Modernization and Reform Act of 2012) and images gathered with the intention of receiving compensation. The FAA stated that its regulatory focus is not on the person who purchases an image or video from a UAS operator but, rather, its focus is on the UAS operator itself. Thus, the FAA stated that the purchase of an image by a media outlet would not interest the FAA as long as the media outlet did not have operational control over the UAS.
Carving out the distinction between hobbyists and commercial operators, the FAA focused its analysis on the intention of the operator. The FAA stated that if the UAS operator’s “primary intention” is to obtain images to sell, that operator would need FAA approval. However, if the operator gathers images and happens to sell a few, the operator’s intention may be determined by the frequency at which the operator sells his/her images. The FAA did not provide a number that would set the threshold for commercial operators. But suffice it to say that, the more an operator “unintentionally” gathers images and sells them, the more scrutiny that operator will get. As usual, the FAA made it clear that each case would be considered on its own merits.
A copy of the FAA opinion letter discussed in this post is available at: http://www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/agc200/interpretations/data/interps/2015/williams-afs-80_(2015)_legal_interpretation.pdf
On April 28, 2015, the crew of Virgin America flight 769 reported seeing a “drone” flying in the approach path to Dallas Love Field as the airliner descended for landing. Based on media reports, at about 9:30 p.m., the crew witnessed a lighted quadcopter flying above their aircraft as they passed over the Crescent Hotel near downtown Dallas, which is approximately 3 miles from Love Field. The Dallas Police Department dispatched a helicopter in an attempt to verify the report and to locate the quadcopter. However, at this time, it does not appear that the quadcopter or its operator were found.
With the increasing availability of high-quality “drones” (referred to by the Federal Aviation Administration as “Unmanned Aircraft Systems” or “UASs”) these types of encounters are on the rise. Such encounters are a concern for many reasons. Not only do they present an obvious safety hazard for larger aircraft, their passengers, and the public on the ground; such encounters are harmful to the UAS industry, which is only beginning to develop the full potential of this important technology. Many private organizations and governmental bodies are searching for ways to regulate UAS operations in a manner that will encourage growth of the industry without compromising safety.
The FAA recently announced proposed regulations applicable to operation of Small UASs.1 Those regulations are meant to apply to commercial operators, and they are designed to address pilot certification, registration, and safety. The UAS flight witnessed by the Virgin-America crew might have run afoul of several of the proposed regulations because:
- they require operators to maintain visual-line-of-sight to the UAS (meaning that the UAS must remain within the sight of the operator, unaided by any device);
- they prohibit flight over persons not directly involved in the operation of the UAS;
- they prohibit operation at night;
- they require an air-traffic-control clearance for operation within Class B airspace; and
- they prohibit operation at an altitude higher than 500 ft. above ground level.
As the UAS industry grows, it is important for UAS operators to use good judgment to avoid encounters with other aircraft and to avoid operating in an unsafe manner. Additional encounters like flight 769 may cause more-stringent regulations and may restrict the growth of the UAS industry. Further, although it is difficult, it is important for pilots to remain vigilant to “see and avoid” potential hazards (just like the crew of flight 769 did) and to report errant UAS operations to air traffic control when spotted.
1The proposed regulations are available at: http://www.faa.gov/regulations_policies/rulemaking/recently_published/media/2120-AJ60_NPRM_2-15-2015_joint_signature.pdf