AOPA Pilot Magazine - February 2015 - 24

PILOT COUNSEL

Unmanned aircraft systems

BY JOHN S. YODICE

Drones are aircraft, too
THE LEGAL STATUS of unmanned aircraft systems (also
called UAVs-unmanned aerial vehicles-and more
colloquially, "drones") has now been confirmed to
technically be "aircraft" subject to relevant FAR Part
91 general operating and flight rules that govern all of
us who share the airspace. The legal status of UAS has
been uncertain because of the special treatment the
FAA accords to other unmanned aircraft, such as free
balloons, kites, rockets, moored balloons, and model aircraft. With the current growth of UAS-and with the
expressed interest of the United States Congress spurring FAA rulemaking on unmanned aircraft-this legal
confirmation comes at a good time.
This confirmation comes in a recent decision by
the National Transportation Safety Board in a case in

"An 'aircraft' is any 'device'...'used for flight in the
air.' This definition includes any aircraft, manned or
unmanned, large or small."

JOHN S. YODICE

provides legal
counsel to AOPA
members through
Pilot Protection
Services.

which the FAA administrator assessed a $10,000 civil
penalty against the operator of an unmanned aircraft,
alleging that he operated it in a careless or reckless manner in violation of FAR 91.13(a). An FAA assessment
order alleges that the respondent remotely piloted an
unmanned aircraft, a Ritewing Zephyr, in a series of
maneuvers around the University of Virginia campus in
Charlottesville, Virginia. The FAA says that he operated
the Zephyr at altitudes ranging from the "extremely
low"- 10 feet above ground level-and up to 1,500 feet
agl, and "directly towards an individual standing on a
sidewalk causing the individual to take immediate evasive maneuvers;" "through a tunnel containing moving
vehicles;" "under a crane;" "below tree-top level over
a tree-lined walkway;" "under an elevated pedestrian
walkway;" and "within 100 feet of an active heliport."
The respondent was being paid to take aerial photographs and video of the campus and medical center.
The respondent appealed the FAA order to the
NTSB. An NTSB administrative law judge was assigned
to the appeal. The respondent filed a motion with the
judge asking him to dismiss the case, because the federal aviation regulations-which govern the operation
of "aircraft"-do not apply to respondent's Ritewing
Zephyr. The law judge agreed, granting the motion and
concluding that the Zephyr was a "model aircraft" to

24 | AOPA PILOT February 2015

which FAR 91.13(a) did not apply. The judge cited a 1981
FAA advisory circular setting forth safety standards for
model aircraft operations. According to the judge, in the
circular, "FAA has distinguished model aircraft as a class
excluded from the definitions of the term 'aircraft.'"
The FAA appealed the judge's ruling to the full fivemember NTSB. The board granted the FAA appeal,
saying, "This case calls upon us to ascertain a clear,
reasonable definition of 'aircraft' for purposes of the
prohibition on careless and reckless operation in 14
CFR 91.13(a). We must look no further than the clear,
unambiguous plain language of 49 USC 40102(a)(6)
[the Federal Aviation Act] and 14 CFR 1.1 [FAR 1.1]: an
'aircraft' is any 'device'...'used for flight in the air.' This
definition includes any aircraft, manned or unmanned,
large or small. The prohibition on careless or reckless
operation in 91.13(a) applies with respect to the operation of any 'aircraft' other than those subject to part
101 and 103." FAR Part 101 contains regulations governing unmanned free balloons, kites, amateur rockets, and
moored balloons. FAR 91.1(a) specifically excludes these
aircraft, as well as ultralights governed by FAR Part
103, from the requirements of Part 91. The board distinguished the 1981 FAA Advisory Circular 91-57, cited
by the judge. Although the AC outlines and encourages
voluntary compliance with certain safety standards for
model aircraft operators, it does not specifically exclude
"model aircraft" from the definition of "aircraft" for
purposes of the FARs. The full board reversed and
remanded the case to the law judge for him to make
findings on whether respondent operated the aircraft
(whose legal status is now confirmed) "in a careless or
reckless manner so as to endanger the life or property
of another" as proscribed in FAR 91.13(a).
This legal conclusion comes at a time when the
FAA, spurred on by Congress, is currently developing a
future path for the safe integration of all civil UAS into
the national airspace system. More imminently, the FAA
is working on a regulatory framework for safely integrating small UAS into the national airspace system, and
expects shortly to release a "small UAS" proposed rule
for public comment. Pending rulemaking, the FAA has
been granting regulatory exemptions on a limited basis
authorizing the use of unmanned aircraft in the national
airspace system.
AOPA
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AOPA Pilot Magazine - February 2015

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