The FAA is investigating New York City realtors who are using drones to document properties. They’ve also issued guidelines saying the use of model aircraft (drones) by farmers is unlawful. The guidance is the next absurd step in the never ending saga of government agencies that can’t figure out how to regulate new technology.
The FAA’s position is as simple as it is inane. If a realtor films buildings for fun using a remote controlled quadcopter that’s legal. But if she takes that same quadcopter and films buildings as part of her job, that is illegal. If a farmer flies a model aircraft over his cornfield doing barrel rolls and loops, that’s legal. But if he uses the same model airplane to determine how to conserve water or use less fertilizer that’s illegal. This is government regulation at its worst.
The FAA claims their decision is all about safety, FAA administrator Michael Huerta stated last week “We have a mandate to protect the American people in the air and on the ground, and the public expects us to carry out that mission.” But regulating based on commercial versus non-commercial use has nothing to do with safety, in fact it may be the worst way to draw the line on safe versus unsafe operations.
When a realtor or farmer uses a piece of equipment for commercial purposes their livelihood and businesses are on the line, that fact creates clear incentives for safe operation (not to mention big insurance policies). They aren’t going to fly irresponsibly and push the limits of their equipment because they are working with a clear business purpose in mind. The last thing they want is a PR nightmare tied to their company or their real estate license. Realtors, farmers and others using drones for business will think carefully about what exposes them to unnecessary business risks or lawsuits. In short, commercial users will be at least as careful as a hobbyist, but the FAA is keeping them grounded. This is completely backwards and it seems that it isn’t about safety, it’s about bureaucrats flexing their muscles as they struggle to deal with new technologies.
The agency’s guidelines for model aircraft operations have drawn the ire of the Academy of Model Aeronautics, a group with 165,000 members who stated that the FAA’s regulations “threaten to destroy a wholesome and enriching activity enjoyed by a vast cross-section of our society.” Note the use of model aircraft for hobbyist purposes pre-dates the existence of the FAA, and Congress specifically wrote language into the FAA Modernization and Reform Act that was designed to protect the use of model aircraft, not empower the FAA to regulate its use. That’s why the FAA’s new guidelines are so controversial.
The FAA’s crackdown on realtors isn’t the only example of the FAA’s largely arbitrary regulations. They’ve also said using a drone to determine whether crops need to be watered is not allowed if done as part of a commercial farming operation, but is allowable if the crops are grown for personal enjoyment. Moving a box from point A to point B is legal if done for fun, illegal if done for pay. They’ve also said drone photos for personal use are allowed, while drone photos for commercial use are prohibited. What’s unclear is what will happen if a person uses a drone to take photos for fun, then later decides to sell the photos. Would such a use be considered commercial by the FAA? The agency has said that it makes its determination based on intent, but if a person chooses to later sell their recreational photos, how will the agency know what the person’s intent was at the time they flew? This example proves just how untenable the FAA’s position is. As the bloggers over at Dronelife.com noted, “the FAA favors frat bros over farmers” and that doesn’t seem to be a sensible way of regulating.
The better way for the FAA to regulate would be to pass interim guidelines for the use of very small unmanned aircraft (perhaps those weighing less than 4.4 pounds). There is already a precedent for this, as the 2012 FAA Modernization and Reform Act already includes a provision allowing “a government public safety agency to operate unmanned aircraft weighing 4.4 pounds or less” under certain restrictions. The bill specified these systems must be flown within the line of sight of the operator, less than 400 feet above the ground, during daylight conditions, inside Class G (uncontrolled) airspace and more than five miles from any airport or other location with aviation activities. Those seem like reasonable interim regulations for farmers and realtors and are much better than a nonsensical outright ban based on “commercial use.”
Gregory S. McNeal is a professor specializing in law and public policy. You can follow him on Twitter @GregoryMcNeal or on Facebook.