The distinction between model aircraft and drones is a significant regulatory difference that may not be properly understood by drone users and the general population. However, one thing is certain: drones are aircraft. This is clear from Federal legislation, FAA rules and administrative cases interpreting FAA rules, (See, e.g., Administrator v. Pirker, Docket CP-217 (NTSB Order No. EA-5730, Nov. 18, 2014.)
Consequently, while Federal law exempts model aircraft from certain aspects of FAA regulation,
the FAA’s enforcement authority prohibiting model aircraft operators from endangering the safety of the National Air Space (“NAS”) is not affected.
The FAA has been concerned with model aircraft operating in the NAS for decades. Specifically, the FAA issued an advisory circular (AC) 91-57 and a policy statement elaborating on AC 91-57, which provide guidance for the safe operation of “model aircraft.” See Advisory Circular 91-57, Model Aircraft Operating Standards (June 9, 1981).
The policy statement defines a “model aircraft” as a UAS that is used for hobby or recreational purposes. The policy statement explains that AC 91-57:
[E]ncourages good judgment on the part of operators so that persons on the ground or other aircraft in flight will not be endangered. The AC contains among other things, guidance for site selection. Users are advised to avoid noise sensitive areas such as parks, schools, hospitals, and churches. Hobbyists are advised not to fly in the vicinity of spectators until they are confident that the model aircraft has been flight tested and proven airworthy. Model aircraft should be flown below 400 feet above the surface to avoid other aircraft in flight. The FAA expects that hobbyists will operate these recreational model aircraft within visual line-of-sight.
However, this Advisory was issued before the dawn of the Age of the Drone.
Also, keep in mind that that Advisory Circulars are not regulatory in nature. See Gorman v. Nat'l Transp. Safety Bd., 558 F.3d 580, 582, 587- 89 (D.C. Cir.), cert denied, 558 U.S. 580 (2009) (upholding an FAA interpretation of its regulations advanced through adjudication that contradicted the content of an advisory circular).
The FAA Modernization and Reform Act of 2012 (Pub. L. 112-95) specifically prohibits the FAA from promulgating rules regarding model aircraft that meet all of the following statutory criteria:
The aircraft is flown strictly for hobby or recreational use;
The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
The aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
When flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation.
So if the operation of model aircraft meet the above criteria, such aircraft would not be subject to the requirements in the new FAA regulations concerning small UAS.
It would seem that the most problematic element of this five-point definition would be the meaning of the second element, i.e., the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization. The FAA in its Interpretation of the Special Rule for Model Aircraft, 79 FR 36172, 36175 (June 25,2014) (“Interpretation of the Special Rule”) states as follows:
Section 336(a)(2) requires model aircraft to be operated within a community-based set of safety guidelines and within the programming of a nationwide community-based organization. Congress explained that it intended “nationwide community-based organization” to mean, in part, a “membership based association that represents the aeromodeling community within the Unites States; [and] provides its members a comprehensive set of safety guidelines that underscores safe aeromodeling operations within the National Airspace System and the protection and safety of the general public on the ground. . . .”U.S. House, FAA Modernization and Reform Act of 2012, Conference Report (to Accompany H.R. 658), 112 H. Rpt. 381 (Feb. 1, 2012) (discussion of special rule for model aircraft). Based on this language, which provides context to Congress' use of the term “nationwide community-based organization,” the FAA expects that model aircraft operations conducted under section 336(a) will be operated according to those guidelines.
The FAA gave as an example of a “nationwide community-based organization “…groups such as the Academy of Model Aeronautics and others that meet the statutory definition.”See Interpretation of the Special Rule, footnote 7.
While not a crystalline definition, there is at least minimal guidance in this language. Again, it is clear that the use of drones for commercial purposes will not exempt the model aircraft from regulation as a small UAS pursuant to the FAA’s proposed rules.