Analyst Says Rule May Violate Congressional Mandate Against New Model Airplane Rules

An attorney who has analyzed the new FAA rules regarding unmanned aircraft says the new UAS rules may have an adverse effect on the model airplane industry and model airplane flyers.

Writing on the Drone Law Journal online, Loretta Alkalay says that the FAA has added recreational UAV flying to Part 101 of the FARs which governs tethered balloons unmanned rockets, kites, and similar aircraft.

Alkaly says that the new rule is a transfer of statutory language in the FAA Reauthorization and Modernization Act of 2012 that was directed toward the FAA and not the model aircraft community. But the way the rule is written, the requirement that was intended to apply only to the FAA is now binding on model aircraft operators.

So Alkaly says that her interpretation of the rule is that model airplanes are now governed by Part 101 and not Part 107, which requires a requirement for a remote pilot certificate, only if they can meet all of the specific requirements Congress wrote into the FRMA 2012 law to prohibit FAA rulemaking:

• 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 (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

In other words, a hobby flyer who does not meet the requirements for Part 101 would be assumed to be operating under Part 107, and failure to meet the requirements of Part 107, including holding a remote operator's certificate, could result in penalties being imposed by the FAA.

The bottom line, Alkalay says, is that hobby fliers are now faced with uncertainty as to whether they can continue to enjoy their hobby once the new Part 101 and Part 107 rules go into effect in August.

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