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COMMENT OF PATRICK MCKAY, ESQ. ON THE FAAs

INTERPRETATION OF THE SPECIAL RULE FOR MODEL

AIRCRAFT

Docket ID: FAA-2014-0396

Agency: Federal Aviation Administration (FAA)

Parent Agency: Department of Transportation (DOT)

CONTENTS

INTRODUCTION .......................................................................................................................... 2

I. THE FAAS INTERPRETATION IS CONTRARY TO LAW .............................................. 2

A. The background and Congressional intent of Sec. 336 of the FMRA ............................. 2

B. The Interpretation improperly regards model aircraft as being legally classified as

aircraft under the Federal Aviation Regulations ..................................................................... 3

C. The Interpretation improperly construes a vague exception in Sec. 336 as an unlimited

positive grant of authority ........................................................................................................... 4

D. The FAAs assertion of enforcement authority over model aircraft violates both the

FMRA and the rule of law / due process rights .......................................................................... 5

II. THE FAAS INTERPRETATION RESULTS IN ABSURD LEGAL CONSEQUENCES,

EFFECTIVELY BANNING MODEL AVIATION COMPLETELY ........................................... 6

A. The FAAs Interpretation subjects model aircraft operators to potential criminal charges

for operating an aircraft without an airmans certificate ......................................................... 6

B. The FAAs Interpretation effectively prohibits the development, testing, marketing, and

sale of model aircraft .................................................................................................................. 7

C. The FAAs commercial prohibition violates the First Amendment .................................... 8

D. Deeming model aircraft to be subject to the FARs creates irreconcilable conflicts of

laws, making it impossible to operate legally ............................................................................. 8

III. THE FAAS INTERPRETATION UNJUSTIFIABLY SINGLES OUT FIRST-PERSON-

VIEW (FPV) FOR COMPLETE PROHBITION ........................................................................... 9

A. The FAAs Interpretation seeks to ban a thriving sector of model aviation in a manner

contrary to Congressional intent ................................................................................................. 9

B. Interpreting the term visual line-of-sight to preclude video-piloting is inconsistent with

previous FAA practice and international norms ....................................................................... 10

C. FPV is a safe technology, and any risks can be mitigated by reasonable regulations ....... 12

D. The FAAs approach to FPV is unsustainable, unenforceable, and doomed to failure . 14

CONCLUSION ............................................................................................................................. 15

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INTRODUCTION

As a model aircraft hobbyist, avid first-person view (FPV) enthusiast, and a Colorado-

licensed attorney who has closely followed the legal developments in the FAAs efforts to

regulate unmanned aircraft, I strongly oppose the FAAs recently published document,

INTERPRETATION OF THE SPECIAL FOR RULE MODEL AIRCRAFT. Nearly every

aspect of this document is utterly without basis in either law or fact, and it runs directly contrary

to the clear intent of Congress as expressed in Sec. 336 of the FAA Modernization and Reform

Act of 2012 (FMRA).

The FAAs interpretation blatantly misrepresents both the current state of the law regarding

model aircraft and the effect of the FMRA, particularly Sec. 336. In so doing, it interprets an act

of Congress that expressly limited the FAAs regulatory authority with respect to model aircraft

as an unlimited grant increasing that authority. As a result, the FAAs actions threaten to destroy

a thriving hobby which has existed for nearly a century without causing any significant safety

risks either to manned aviation or to persons on the ground, with absolutely no benefit to public

safety whatsoever.

I urge the FAA to immediately retract its interpretation and acknowledge the legal reality

that model aircraft are not currently subject to any regulation by the agency and that the FAA is

in fact prohibited from establishing any kind of regulations for them in the future. In support of

this request, I offer the following arguments.

I. THE FAAS INTERPRETATION IS CONTRARY TO LAW

A. The background and Congressional intent of Sec. 336 of the FMRA

Congress included Sec. 336 in the FMRA in the context of its directive to the FAA to create

regulations to govern the heretofore unknown and unregulated technology of unmanned aerial

systems (UAS). It is axiomatic that if regulations already existed which covered unmanned

aircraft operations Congress would not have felt the need to order the FAA to create such

regulations.

By 2012, the FAA had already been considering regulating UAS for nearly a decade. Given

the rapid growth of this technology and its increasingly widespread use for commercial aerial

photography and other uses, and the FAAs apparent tardiness in regulating this technology,

Congress decided to explicitly order the agency to create regulations governing its use. Congress

included an express directive to this effect as a major portion of the standard reauthorization act

for the agency which it passed in early 2012. At the same time, model aircraft enthusiasts, who

for decades had been operating safely under the guidance of community based organizations

such as the Academy of Model Aeronautics (AMA), were concerned about the possibility that

the new regulations Congress was directing the FAA to create would unduly restrict their hobby.

In order to prevent the possibility of such undo regulation, the AMA convinced Congress to

include in its directive a provision, largely drafted by the AMA itself, to exempt from regulation

certain model aircraft operations that satisfied a number of criteria for what was universally

regarded as safe, and which were conducted under the auspices of a community based

organization such as the AMA. While the exemption did not cover every form of model aircraft

operation practiced in the United States, it was intended to carve out a safe harbor which

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guaranteed that a subset of the safest operations, practiced in accordance with the AMAs safety

code, were protected against regulation by the FAA. The text of Sec. 336 begins:

Notwithstanding any other provision of law relating to the incorporation of unmanned

aircraft systems into Federal Aviation Administration plans and policies, including this

subtitle, the Administrator of the Federal Aviation Administration may not

promulgate any rule or regulation regarding a model aircraft, or an aircraft being

developed as a model aircraft, if1

Since Sec. 336 was included in a law that was entirely directed at the FAA itself, it was

never intended to have any direct effect on the American public. It did not purport to establish

any kind of laws or regulations about what model aircraft operators are or are not permitted to

do, nor did it establish any kind of general definition of model aircraft applicable across all of

federal aviation law. By its own terms, the definition of model aircraft in Sec. 336 was

intended to only apply in the context Sec. 336 (In this section, the term model aircraft

means...2), and that term was defined in order to define the scope of model aircraft activity that

was to be exempt from the future regulations that the rest of the act ordered the FAA to create.

The intended effect of Sec. 336 is clear. Model aircraft operations included within its scope

are to be exempt from any future FAA regulations, while activities outside of its scope can be,

though do not necessarily have to be, regulated. If a given model aircraft operation is not covered

by the Sec. 336 exemption, the FAA is not prohibited by that section from regulating that

activity. If the FAA so chooses, it can include regulations governing the activity in the UAS

regulations it was ordered to draft. Either way, the implications of Sec. 336 are entirely

prospective in nature. Sec. 336 only governs what regulatory action the FAA may take in the

future; it did nothing at all to affect the present legal status of model aircraft.

There is no indication in Sec. 336 or any other provision of the FMRA that Congress

intended to prohibit any unmanned aircraft operation that did NOT fall within the Sec. 336

exemption, and there is certainly no evidence that Congress intended to subject all model aircraft

operations, even those that comply with Sec. 336, to the full gamut of existing Federal Aviation

Regulations (FARs). Such conclusions are entirely unwarranted by the legislative text, and run

directly contrary to the clear congressional intent that model aircraft remain unregulated.

B. The Interpretation improperly regards model aircraft as being legally classified as aircraft under the Federal Aviation Regulations

The basic legal premise upon which the FAAs interpretation is founded is that model aircraft

are legally classified as aircraft, and as a result are, and indeed always have been, subject to the

entire gamut of federal laws and regulations applicable to aircraft, including the entirety of the

FAAs Federal Aviation Regulations (FARs). This is stated in Sections III and IV of the

Interpretation, where the FAA claims that model aircraft are currently subject to an open-ended

(and therefore completely arbitrary) list of FARs, and that the FAA has the authority to pursue

enforcement actions even against modelers who are in complete compliance with the Sec. 336

model aircraft exemption from regulation.

1 Public Law 11295 336(a).

2 Public Law 11295 336(c).

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The idea that model aircraft are legally classified as aircraft is was the same theory that was

expressly rejected by NTSB Administrative Law Judge Geraghty in Huerta v. Pirker (2014). In

that case the ALJ referred to the argument that model aircraft are legally classified as aircraft as

risible, and stated that such a rule would bring even childrens toys such as paper airplanes and

balsa gliders under the purview of the Federal Aviation Regulations.3 The mere fact that model

aircraft could theoretically fall under the incredibly broad definition of aircraft in the FARs

was not enough in itself to subject them to regulation, particularly in the absence of any past

FAA actions which treated them as regulated.

Never before this past year has the FAA asserted that model aircraft are legally classified as

aircraft and subject to the same regulations as full-sized manned aircraft. Model aircraft have

existed for nearly a century and the FAA has published guidance for model aircraft operators

since 1983 when it issued Advisory Circular 91-57, which treated model aircraft as only subject

to voluntary guidelines which could be heeded or ignored as modelers saw fit. The first time the

agency ever suggested that model aircraft were considered aircraft and subject to the FARs was

in its briefs in the Pirker case, written in 2013 and 2014. Prior to that case, every time model

aircraft were brought to their attention, FAA employees stated that model aircraft were not

regulated by the agency.

As Judge Geraghty rightly ruled, the FAA cannot now reverse the position it has held for

decades and subject model aircraft to regulation without first engaging in formal notice-and-

comment rulemaking as required by the Administrative Procedures Act. It is in fact prohibited

from engaging in such rulemaking with respect to hobbyist model aircraft by Sec. 336 of the

FMRA. Unless Judge Geraghtys ruling should be overturned by the NTSB on appeal (which

most legal experts consider unlikely), it is clear that model aircraft are not currently and were not

ever legally considered aircraft; nor does the FAA have any legal authority classify them as

such. The FAAs assertion to the contrary in its Interpretation is utterly without legal basis and

actively misrepresents the law.

Though it pays lip service to the principles of statutory construction in a footnote (In

construing statutory language, agencies should assume that the ordinary meaning of the language

accurately expresses the legislative purpose of Congress.4), the FAA proceeds to throw those

principles out of the metaphorical cabin door, and twists Congress language to the exact

opposite meaning from what was clearly intended.

C. The Interpretation improperly construes a vague exception in Sec. 336 as an unlimited positive grant of authority

As alternative bases for its contention that model aircraft are legally considered aircraft, the

FAA cites both the definitions of aircraft in federal law and the FARs (the same argument

expressly rejected by Judge Geraghty), and the FMRA. The agencys latest theory appears to be

that even if model aircraft were not legally considered aircraft prior to the 2012 act, they are now

by virtue of the vaguely worded clause in Sec. 336 that, [n]othing in this section shall be

construed to limit the authority of the Administrator to pursue enforcement action against

persons operating model aircraft who endanger the safety of the national airspace system.5

3 Huerta v. Pirker, Docket #CP-217, NTSB Safety Board Office of Administrative Law Judges (Mar. 6, 2014).

4 Interpretation, FN 3.

5 Public Law 112-95, 336(b).

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This theory flies in the face both of Congressional intent and the clear language of this

provision. The beginning of the sentence, nothing in this section shall be construed to limit,

begins a negative statement of an effect Sec. 336 is not intended to have. It cannot logically be

construed as a positive grant of authority in itself. Simply put, Sec. 336 is intended to have no

effect whatsoever on the FAAs preexisting authority (or lack thereof) to pursue enforcement

actions against modelers. Whatever pre-existing authority the agency had prior to enactment of

Sec. 336 remains unchanged.

As it turns out, the FAA in fact had NO preexisting authority to pursue enforcement actions

against model aircraft operators, as evidenced by the Pirker case. Therefore the FAA still has no

authority to pursue such actions. While Sec. 336 expressly did not limit the FAAs authority in

regard to enforcement actions, neither did it increase it or effect any change whatsoever from the

status quo. To read this provision as a positive grant of enforcement authority over an activity the

preceding provisions declared immune from regulation allows the exception to swallow the rule

and completely negates Congress intent that model aviation remain unregulated.

Even if the FAA was intended to have any authority to take enforcement action against

model aircraft operators, that authority must be read very narrowly in light of the rest of Sec.

336. At maximum, it should be read as allowing the FAA to create, by regulation, a prohibition

on model aircraft operations which fall outside the scope of Sec. 336 and which the FAA

determines pose a significant danger to the safety of other users of the National Airspace System.

Whatever its exact meaning, this clause cannot be read in isolation as a broad grant of authority

to the agency to create a vast new regulatory regime governing model aircraft by arbitrary

interpretive fiat in the complete absence of promulgated regulations, as the FAA attempts to do

in its Interpretation.

D. The FAAs assertion of enforcement authority over model aircraft violates both the FMRA and the rule of law / due process rights

Despite the fact that Sec. 336 explicitly forbids the FAA to regulate model aircraft, the FAA

nevertheless claims that this exception has the effect of bringing all model aircraft (even those

operated according to the criteria in Sec. 336) under the scope of existing aviation regulations,6

any one of which could serve as a potential basis for an enforcement action against a model

aircraft operator for endangering the safety of the NAS.7

Not only does the FAA claim that an act of Congress which expressly exempts model aircraft

from regulation actually caused them to be regulated as aircraft, but it claims nearly unlimited

authority to prosecute modelers for anything at all that it believes endangers someone or

something either in the sky or on the ground, which it will then shoehorn into one of an open

ended array of existing regulations that were never written with model aircraft in mind.

Even as it asserts that the FARs apply to model aircraft, the FAA refuses to tie itself down by

giving a definitive list of which regulations do and do not apply. While the FAA lists a few

6 Reading the broad reference to the NAS, along with Congress clear interest in ensuring that model aircraft are

safely operated, we conclude that Congress intended for the FAA to be able to rely on a range of our existing

regulations to protect users of the airspace and people and property on the ground. Interpretation Sec. III. 7 [R]egardless of whether a model aircraft satisfies the statutory definition and operational requirements described

above, if the model aircraft is operated in such a manner that endangers the safety of the NAS, the FAA may take

enforcement action consistent with Congress' mandate. Interpretation Sec. III.

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illustrative regulations it believes apply to model aircraft, it emphasizes that the list is not

exhaustive, and is open to being arbitrarily expanded as the situation requires.8 It is therefore

impossible for model aircraft operators to determine ahead of time which regulations they are

required to follow and which they are not. They may only learn that they are expected to abide

by a particular provision when the FAA decides to prosecute them for violating it.

This is the very definition of arbitrary and capricious. Not only is the FAAs interpretation

directly contrary to the clear intent of Congress to exempt model aircraft from regulation, it

violates the fundamental principles of the rule of law. Our entire legal system is founded on the

principle that laws must be promulgated in order for a person to know ahead of time what the

government expects of him, and that law enforcement must be predicated upon a violation of

promulgated law rather than the arbitrary whim of the enforcer. This is the essence of the due

process rights protected by the United States Constitution. A person cannot be charged with

violating a law he had no prior notice applied to him before committing the alleged violation.

The Constitutions prohibition on retroactive ex post facto laws makes this very clear.

By insisting that model aircraft are governed by the FARs, yet refusing to tell modelers in

advance exactly which FARs they are expected to follow, the FAA is acting contrary to both the

Constitution and the rule of law itself. If the FAA is serious about its position that model aircraft

are subject to the FARs, then it is incumbent upon the agency to issue a definitive interpretation

listing exactly which FARs apply and which do not, so that modelers can have prior notice of

what regulations they are expected to follow.

II. THE FAAS INTERPRETATION RESULTS IN ABSURD LEGAL CONSEQUENCES, EFFECTIVELY BANNING MODEL AVIATION

COMPLETELY

A. The FAAs Interpretation subjects model aircraft operators to potential criminal charges for operating an aircraft without an airmans certificate

If the FAAs contention that model aircraft are legally considered aircraft and are subject to

the full range of Federal Aviation Regulations merely at the agencys whim is to be construed

broadly, model aircraft operators who lack pilots licenses suddenly find themselves at risk of

facing federal criminal charges for operating an aircraft without a license. Under 49 U.S.C.

46306(b)(7), a person shall be fined under title 18, imprisoned for not more than 3 years, or

both, if the person knowingly and willfully serves or attempts to serve in any capacity as an

airman without an airmans certificate authorizing the individual to serve in that capacity.

Operating an aircraft without an airmans certificate is a crime under many state laws as well,

potentially subjecting unlicensed model aircraft operators to both federal and state criminal

charges.

While some model aircraft enthusiasts also possess pilots licensees, the vast majority do not.

Indeed, one of the primary draws of model aviation is that it allows a person to pursue a passion

for aviation and flight without undergoing the significant expense and time commitment of

8 Other rules in part 91, or other parts of the regulations, may apply to model aircraft operations, depending on the

particular circumstances of the operation. The regulations cited above are not intended to be an exhaustive list of

rules that could apply to model aircraft operations. The FAA anticipates that the cited regulations are the ones that

would most commonly apply to model aircraft operations. Interpretation Sec. IV.

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becoming a licensed pilot. It is this ease of accessibility that makes model aviation an activity

that is enjoyed by thousands of Americans ranging from children to elderly adults.

While the FAA has not yet indicated whether or not they expect model aircraft operators to

be licensed pilots, the open-ended assertion that model aircraft are aircraft and are subject to

not only the regulations specifically mentioned in the Interpretation, but potentially others as

well, means it is entirely up to the agencys whim whether to refer a model aircraft operator that

raises its ire to the Department of Justice for federal criminal charges for operating without a

license. Nothing the agency has said to this point indicates that this possibility is off the table. It

is also worth noting that in its recent enforcement action against Raphael Pirker, though the FAA

did not pursue criminal charges against him for operating without an airmans certificate, it did

pursue a civil enforcement action using the procedural rules for a person acting as an airman.

If the FAA does intend to interpret federal statutes in such a way as to require a pilots

license to operate model aircraft, it will effectively destroy model aviation as it has existed for

decades. At the very moment the hobby has become more accessible than ever thanks to

dramatic decreases in prices and new tools to make learning to fly easier, model aviation would

be closed to all but those with sufficient wealth and time to obtain a private pilots license.

B. The FAAs Interpretation effectively prohibits the development, testing, marketing, and sale of model aircraft

Even if the FAA does not necessarily intend to require a pilots license to fly model aircraft,

the FAAs strict interpretation of what constitutes prohibited commercial use of a model aircraft

threatens to destroy the thriving American model aircraft industry. While the Sec. 336 exemption

expressly applies to an aircraft being developed as a model aircraft, the FAAs Interpretation

makes no distinction between commercial operation by model aircraft users and manufacturers

or retailers.

The Interpretations strict prohibition on any use of model aircraft with any business nexus

or profit motive would seem to preclude operation by a model aircraft manufacturer while

designing, testing, or marketing the model. It is absolutely essential that manufacturers be able to

test-fly models during development, as well as be able to take photos and videos of the model in

flight in order to be able to market and sell it. Yet because the model is being developed for the

purpose of a commercial sale from which the manufacturer hopes to make a profit, it appears

such use would violate the FAAs prohibition on commercial activity.

Though the FAA included in its Interpretation a detailed chart of certain activities that are or

are not considered prohibited commercial use, the document made no mention of model aircraft

manufacturers whatsoever, leaving them to guess whether the FAA intends to punish them for

simply building, testing, and marketing model aircraft for the hobbyist market as they always

have. The commercial prohibition would also seem to apply to model aircraft retailers or their

employees flying a model to demonstrate its capabilities, with the goal of making a sale. This

appears to be confirmed by the FAAs explicit prohibition on sponsored flights and contests

both time honored practices in the model aviation community that have been practiced for

decades, with the primary purpose of demonstrating and marketing the model aircraft being

flown by the sponsored pilot.

If the FAAs interpretation of commercial activity is taken literally, it would thus effectively

ban the entire model aircraft industry, which has existed for decades and contributes millions of

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dollars and thousands of jobs the U.S. economy. Given Congress clear intent that model

aviation would continue to exist in the same form it currently does, this cannot reasonably be

regarded as its desired outcome.

C. The FAAs commercial prohibition violates the First Amendment

The FAAs prohibition on commercial aerial photography using model aircraft raises

significant First Amendment concerns. Photography has long been a recognized form of First

Amendment-protected speech, yet the FAA prohibits ALL aerial photography using model

aircraft motivated by profit rather than personal enjoyment. By basing its restrictions on the

motives behind the speech rather than the safety of the activities done in connection with the

speech, the FAAs prohibition is no longer a content-neutral time, place, and manner restriction,

but a prior restraint based on the content and motivation for the speech.

This prohibition not only affects those like real estate agents and event photographers, but

model aircraft related media outlets. In the age of YouTube, many online websites and video

channels have sprung up which specialize in making videos and publishing articles containing

flying tips, equipment reviews, and general entertainment centered around model aircraft

making money from YouTube ad revenue, sponsorship deals, and advertisements on their

websites. These media outlets would also appear to be prohibited based solely on the content and

motivation of their expressive activity. This too is a content-based prior restraint based solely on

the subject matter of the speech at hand, which impinges both freedom of speech and freedom of

the press.

According to long-established First Amendment precedent, the government must justify

such restrictions by proving they are narrowly tailored to meet a compelling government interest

by the least restrictive means. The FAA has never articulated any compelling reason why aerial

photography or model aircraft related media motivated by profit is inherently more dangerous

than the same speech done for personal enjoyment. Such a contention is unsupportable, and

would stand little chance of satisfying the strict scrutiny standard for a compelling government

interest. Insofar as it prohibits photography and other expressive activity, the FAAs complete

prohibition on using model aircraft for commercial purposes therefore violates the First

Amendment.

D. Deeming model aircraft to be subject to the FARs creates irreconcilable conflicts of laws, making it impossible to operate legally

Finally the FAAs Interpretation makes it impossible to legally operate a model aircraft, as

irreconcilable contradictions exist between the FARs and the FAAs own guidance for model

aircraft. For example, the FAA advises that model aircraft should be flown below 400 feet, yet

FAR 91.113 states than an aircraft must be flown no lower than 500 feet over unpopulated

areas, or 1,000 feet over populated areas. Add to this the possibility that even if a model aircraft

operator obeys every rule they know of, the FAA believes it can still initiate an enforcement

action against anyone it feels does anything unsafe, and it is next to impossible for a model

aircraft enthusiast to operate in a manner that does not risk bringing down the wrath of the FAA

at any time.

For these reasons, not only does the FAAs Interpretation subject model aircraft operators to

a litany of regulations and requirements they have never been subject to before, but in practical

terms, the FAAs Interpretation amounts to a complete ban on operating, manufacturing,

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marketing, reviewing, or selling model aircraft; and renders it extremely difficult to even fly a

model aircraft legally as hobbyist. Despite Congress clear intention to the contrary, the FAAs

absurdly broad interpretation of a document designed to protect model aviation from regulation

has been interpreted to essentially outlaw it entirely.

III. THE FAAS INTERPRETATION UNJUSTIFIABLY SINGLES OUT FIRST-PERSON-VIEW (FPV) FOR COMPLETE PROHBITION

A. The FAAs Interpretation seeks to ban a thriving sector of model aviation in a

manner contrary to Congressional intent

Despite past public assurances by various FAA spokespeople that the FAA would allow

model aviation to continue to exist in the same form it currently does, the FAAs Interpretation

now seeks to prohibit an entire sector of model aviation that is safely practiced by a large number

of hobbyists and is officially sanctioned by the Academy of Model Aeronautics.

First-person-view (FPV) is the practice of flying model aircraft though a live video feed from

the model, observed either on a screen or monitor, or on a set of video goggles worn over the

operators eyes. This use of model aircraft first arose in the early-to-mid 2000s, made possible by

the advent of widely available small video cameras and wireless video systems light enough to

mount on a model. By the time Sec. 336 was passed into law in 2012, FPV was already fully

incorporated into the AMAs safety programming under AMA Document #550. There is a

growing and highly innovative industry devoted to selling FPV-specific equipment, which has

contributed greatly to the advancement of unmanned aircraft technologies including long-range

control systems, on-screen displays and auto-pilots, advanced radio antenna designs, motion

stabilizing camera gimbals, and new types of aircraft designed specifically as video platforms.

FPV has skyrocketed in popularity over the last few years, and there are already thousands of

FPV hobbyists (FPVers) worldwide and hundreds in the United States alone. The popular online

forum FPVLab.com currently has over 20,000 registered users from around the world, and there

are many other online communities dedicated to FPV and DIY UAVs as well. A YouTube search

for FPV returns over 1.4 million videos. As more and more ready-to-fly model aircraft,

particularly quadcopters such as the DJI Phantom 2 Vision, come pre-equipped with cameras and

live video feeds, FPV is poised to grow dramatically in the future. It is likely that within the next

decade, the majority of model aircraft sold will be equipped with video-piloting technology.

FPV represents a paradigm shift in model aviation, because the focus of the modeler is less

on simply building and flying the model and more on achieving an immersive experience of

flight as if the operator was on board the aircraft itself. The first-person perspective allows video-

piloted models to be flown with much greater precision than traditional third-person models,

allowing for complex maneuvers (i.e. weaving through trees in a forest) and other feats that

would otherwise be impossible to execute. This allows video-piloted craft to capture incredible

video footage which hobbyists enjoy sharing online, making the hobby just as much about

photography as flying.

While the response of national aviation regulators to FPV has varied, most other western

nations either have no regulations specifically addressing it, or allow FPV subject to the

requirement that the operator be attended by a secondary visual observer or spotter who must

maintain visual contact with the model at all times and watch for conflicting air traffic. This is

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the approach followed by the United Kingdom, which was the first country to adopt specific

regulations for FPV, working closely with the local FPV community to accommodate their

activities to the greatest extent possible.9 It is also the same approach that the AMA and its

international counterparts including the Model Aeronautics Association of Canada, Model Flying

New Zealand, and the Model Aeronautical Association of Australia have taken toward FPV

operations permitted under their respective safety codes.

Rather than accommodating FPV like other national aviation authorities or engaging the FPV

community in developing sensible regulations, the FAA has chosen to stretch the definition of

visual line-of-sight in Sec. 336 so as to entirely preclude FPV from inclusion among

permissible model aircraft operations. The FAA proceeds to cite FPV using video goggles

(though curiously not LCD screens, tablets, or smart phones, which are also used as video

display devices) as a type of model aircraft operation deemed to be inherently unsafe and which

threatens the safety of the National Airspace System, implying that any use of FPV

technology, no matter how benign, will render those using it subject to FAA enforcement

actions.

The AMAs safety program already incorporated FPV at the time Sec. 336 was passed by

Congress, and there is no indication that Congress intended to exclude it from protection under

the Sec. 336 exemption. While the FAA acknowledges that FPV is permitted by the AMA, it

dismisses this fact in a footnote, and declares FPV to be categorically unsafe and therefore

prohibited regardless.10

In so doing, the FAA has directly contravened the express intent of

Congress that model aircraft operations within the auspices of a Community Based

Organizations safety program be permitted and protected from interference by the FAA. If

allowed to stand, the FAAs actions threaten to eradicate the most promising sector of model

aviation in existence today, and to stifle the innovative industry that has grown up to support it.

B. Interpreting the term visual line-of-sight to preclude video-piloting is inconsistent with previous FAA practice and international norms

There is no evidence that Congress intended the phrase, flown within visual line-of-sight,

which it listed as a criterion to qualify for the Sec. 336 exemption, to mean anything like the

FAA has interpreted it. As much as the FAA may wish to pretend otherwise, the term visual

line-of-sight does not exist in a vacuum, and the FAA is not free to arbitrarily define it however

it wishes. By the time Sec. 336 was adopted, that term was already well-defined in international

aviation parlance. Even the FAA itself has published prior definitions of term, which look

nothing like the definition it now adopts in reference to model aircraft. Notably, Sec. 336 is not

the only provision of the FMRA where the term occurs, and in that and all other provisions,

Congress clearly expected the FAA to use the commonly accepted meaning for the term.

As used in regards to unmanned aircraft (UA), visual line-of-sight is universally accepted

to be a metric of operational distance, rather than a reference to a particular mode of control.

9 United Kingdom Civil Aviation Authority, Air Navigation Order 2009, General Exemption E-3780, Small

Unmanned Aircraft First Person View (FPV) Flying,

http://www.caa.co.uk/application.aspx?catid=33&pagetype=65&appid=11&mode=detail&id=6204. The UK CAA

permits hobbyist FPV operations provided that, The person in charge is accompanied by a competent observer who

maintains direct unaided visual contact with the SUA sufficient to monitor its flight path in relation to other aircraft,

persons, vehicles, vessels and structures for the purpose of avoiding collisions and advises the person in charge

accordingly. 3(b). 10

Interpretation FN 2.

http://www.caa.co.uk/application.aspx?catid=33&pagetype=65&appid=11&mode=detail&id=6204

11

This is especially true when the term is combined with the word within as it is in Sec. 336,

clearly indicating the limit of the UAs permissible operating radius. Regulations restricting

unmanned aircraft operations to within visual line-of -sight typically require that the UA be kept

close enough that it is possible to directly observe it from the ground with unaided human vision.

This requirement is normally met by having a visual observer (aka spotter or competent

observer) who continuously watches the UA and the surrounding airspace while the pilot in

command controls the craft by other means, including live video link.

At no point either in the United States or elsewhere has the term ever been understood to

require that an unmanned aircraft be flown only through direct visual observation by the pilot or

to preclude video-piloting. Past precedent from both the FAA and foreign aviation authorities

allows video-piloting as long as a secondary visual observer continues to monitor the aircraft

with their unaided vision, and as long as the UA is flown no further than where it is possible for

the visual observer to see it.

It is this definition and these accompanying procedures that the FAA has used in the past.

The FAAs current policy statement N 8900.227, Unmanned Aircraft Systems (UAS)

Operational Approval (effective July 30, 2013) defines the term thus:

44. Visual Line-of-Sight. Unaided (corrective lenses and/or sunglasses exempted) visual

contact between a PIC or a VO and a UAS sufficient to maintain safe operational control

of the aircraft, know its location, and be able to scan the airspace in which it is operating

to see and avoid other air traffic or objects aloft or on the ground. (p. A-5)

That same document permits visual line-of-sight operations to be conducted without a pilots

certificate if they are no further than NM laterally from the UAS pilot and at an altitude of no

more than 400 feet AGL at all times (p. 21), demonstrating that visual line-of-sight is intended

to define acceptable operational distance, not a particular method of control.

Notably, in this document, the requirement to maintain visual line-of-sight with the UA is

placed primarily on the visual observer, not the pilot in command. The observer is the person

who has the responsibility of watching the aircraft, while the PICs responsibility is to pilot the

craft in such a way as to keep it within the visual line-of-sight of the observer.

The FAAs UAS Integration Roadmap document published in November 2013 includes an

identical definition of the term:

Visual Line-of-Sight: Unaided (corrective lenses and/or sunglasses exempted) visual

contact between a pilot-in-command or a visual observer and a UAS sufficient to

maintain safe operational control of the aircraft, know its location, and be able to scan the

airspace in which it is operating to see and avoid other air traffic or objects aloft or on the

ground. (Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace

System (NAS) Roadmap, p. 49)

Once again the definition includes two-pilot operation by a Pilot in Command and a Visual

Observer, and operation is restricted to such distance as it remains possible for the observer to

know the location of the UAS and see and avoid other aircraft.

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As far back as 2008, the FAA issued a document entitled Interim Operational Approval

Guidance 08-01, Unmanned Aircraft Systems Operations in the U. S. National Airspace System,

which offered this definition of visual line-of-sight:

Visual Line-of-Sight: A method of control and collision avoidance that refers to the pilot

or observer directly viewing the unmanned aircraft with human eyesight. Corrective

lenses (spectacles or contact lenses) may be used by the pilot or visual observer. Aids to

vision, such as binoculars, field glasses, or telephoto television may be employed as long

as their field of view does not adversely affect the surveillance task. (p.4)

While this definition does refer to visual line-of-sight as a method of control, it once again

allowed for either the pilot or the visual observer to be the person maintaining visual line-of-

sight, and the method of control the definition refers to encompasses the entire two-pilot

procure. This definition also allows greater flexibility with respect to visual aids like binoculars

than the definition in the Interpretation.

Following these prior definitions from the FAA, the Academy of Model Aeronautics defines

visual line-of-sight in Document #550, Radio Controlled Model Aircraft Operation

Utilizing First Person View Systems:

Visual Line Of Sight (VLOS) is the distance at which the pilot is able to

maintain visual contact with the aircraft and determine its orientation without

enhancements other than corrective lenses. (Sec. 7, para. 11.)

In full consideration of this definition, the AMA allows FPV flight on the condition that the pilot

is accompanied by a spotter who maintains continuous visual contact with the model and directs

the pilot in order to keep the model within visual line-of-sight.11

The AMAs FPV policies are

entirely consistent with the FAAs own prior definitions of visual line-of-sight and its prior

approach of requiring a secondary visual observer to meet the visual line-of-sight requirement.

The FAAs new interpretation that visual line-of-sight requires that the pilot must maintain

continuous visual contact with the model, and that this requirement may NOT be met by utilizing

a visual observer, is entirely inconsistent with both the FAAs prior practice and that of the

international aviation community, and is plainly contrary to the intent of Congress.

If the FAA is going to enforce a visual line-of-sight requirement for model aircraft, then it

must at least be consistent with the way it has treated other unmanned aircraft and allow the use

of a visual observer to meet that requirement. That is the minimum required by the FMRA.

Though the Sec. 336 exemption from future rulemaking admittedly does not include FPV craft

flown beyond visual line-of-sight (meaning further than is possible for the observer to see the

craft), the FAA would do well to consider ways to accommodate this practice also in situations

where it is safe to do so (see below).

C. FPV is a safe technology, and any risks can be mitigated by reasonable regulations

When practiced correctly, FPV can actually be far safer than traditional RC piloting, as the

operator can judge with much greater precision the crafts relation to objects and persons and

11

All FPV flights require an AMA FPV pilot to have an AMA FPV spotter next to him/her maintaining VLOS

with the FPV aircraft throughout its flight. The AMA FPV spotter must communicate with the FPV pilot to ensure

the FPV aircraft remains within VLOS, warning the FPV pilot of approaching aircraft, and when avoidance

techniques are necessary. AMA Document #550, 3(b), (d).

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therefore avoid them. FPV also entirely avoids the problem of loss of orientation (losing track of

what direction the model is facing and steering the wrong way), which is one of the largest

causes of traditional RC aircraft crashes.

Large numbers of FPV hobbyists utilize advanced systems which provide them with

onscreen navigational data and telemetry regarding the status of critical systems. These on-

screen displays allow FPVers to monitor battery voltage and control signal strength, alerting

them if the battery is getting low or if they are about to fly out of control range. Many FPV craft

are also equipped with auto-pilots with return to home functionality that will automatically fly

the craft back to its launch point in the event of a control link failure. Each of these features

make FPV craft as a whole subject to far fewer crashes than traditional RC aircraft, and makes

the possibility of an accident causing serious injury or property damage much less likely.

Because FPV frees the pilot from having to directly observe the model in order to fly it, FPV

craft can potentially be flown many miles away from the operator and at significant altitudes.

While this capability understandably makes national aviation authorities nervous that FPV-

piloted model aircraft could be flown in such a way as to pose a hazard to manned aviation, in

reality this concern is vastly overblown. Most FPV pilots are careful to avoid flying near manned

aircraft, and a collision between a manned aircraft and an FPV model is extremely unlikely to

ever occur.

While the FAA has assumed that it is impossible to effectively see-and-avoid manned aircraft

while flying a model through a video feed, this is not in fact the case. Though FPV craft typically

utilize standard definition analog video feeds, it is still entirely possible to see manned aircraft

operating anywhere in the cameras field of view, even if they are miles away. Moreover, most

FPVers are careful to maintain visual and aural awareness of the airspace surrounding their

model, by listening for the sounds of approaching aircraft and either looking up from their screen

or goggles to spot it, or utilizing a secondary visual observer or spotter who watches for

conflicting air traffic. Using these procedures, thousands of FPV hobbyists perform hundreds of

safe FPV flights worldwide every week, and there has never been a collision anywhere between

an FPV craft and a manned aircraft.

Contrary to the assumptions of most regulators, it is not even necessary that the FPV pilot be

able to see his model in order to see-and-avoid other air traffic. The collective experience of

thousands of FPV hobbyists around the world has shown that it is sufficient to monitor the

airspace around where the pilot knows his craft is flying, so he can descend and/or take other

evasive action if a manned aircraft enters the area. It is entirely possible to do this without seeing

the model itself, as the video feed tells the operator exactly where it is in the sky.

In practice, this practice allows for safe operation with minimal risk of conflicts with manned

aircraft out to a distance of several miles, especially at low altitudes below 400 feet where

manned aircraft are unlikely to be encountered. The assumption that safety is inherently tied to

directly observing the model also fails to take into consideration scenarios like operating out of

sight below tree cover inside of a forest, where no manned aircraft could conceivably be present.

In their fixation on the principle of see-and-avoid, regulators have failed to take into

consideration the fact that it is possible to simply avoid manned aircraft by operating in locations

where it is physically impossible for them to fly. There is simply no conceivable reason why it is

necessary to maintain sight of the model under such circumstances.

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Rather than further tightening its rules regarding visual line-of-sight and eliminating the

ability to comply using a spotter, the FAA should be considering ways to broaden its definition

of visual line-of-sight to allow for greater operational freedom. For example, at the Drones and

Aerial Robotics Conference held in New York in October 2013, ASTM F-38 Committee

Chairman Ted Wierzbanowski proposed expanding the concept of visual line-of-sight to allow

UAS operation as far as the observer is capable of monitoring the airspace surrounding the UAS

for conflicting air traffic, even if the UAS itself is not visible. This would be a far more flexible

approach which would better accommodate the ways in which UAS and FPV model aircraft are

currently flown; and it would also align much better with the actual safety objective behind the

visual line-of-sight requirement.

Even if the FAA is for the foreseeable future unwilling to accept the fact that FPV can be

conducted safely beyond visual line-of-sight, the solution to this perceived safety problem is not

to prohibit FPV technology entirely, but to develop reasonable regulations that allow for safe

FPV operations within visual line-of-sight that minimize risk to other airspace users and those on

the ground. As mentioned above, the British Civil Aviation Authority has done this quite

successfully, and there is no reason the FAA cannot do the same in the United States.

D. The FAAs approach to FPV is unsustainable, unenforceable, and doomed to failure

In prohibiting FPV, the FAA has declared war on an entire technology and subset of model

aviation in a manner entirely unjustified by either law or fact. If the FAA ever wishes to obtain

the cooperation of FPV hobbyists in abiding by reasonable safety regulations, it must not persist

in this course. Doing so will only further alienate this growing community and drive it

underground, beyond the reach of the FAA to realistically control.

The FAA does not have the resources or manpower to enforce an absolute ban on FPV.

Hundreds if not thousands of model aircraft enthusiasts already regularly fly FPV in the United

States, and that number will only continue to grow. Because model aircraft are not physically

limited to operating from specific locations (airports) but can be flown literally anywhere in the

entire country, the FAA will find it extremely difficult to exert heavy-handed control over their

operation. Even with the help of local law enforcement, the FAA will find it impossible to police

every park, vacant lot, open field, or backyard where FPV craft can be launched.

Ironically, by overriding the AMAs rules allowing FPV, the one place the FAAs policy

guarantees FPV craft will not be flown is officially designated model aircraft fields. The FAA

will prevent FPV craft from being operated in safe environments where they are already highly

restricted, while incentivizing their operation in places not already set-aside for model aircraft

and where they could potentially pose a greater risk to the public, thereby decreasing safety,

rather than increasing it.

Given the utter impracticality of field enforcement, the agencys ability to enforce a ban on

FPV will inevitably be limited to what people post publicly online, or to instances where FPVers

are reported to the agency by other modelers and/or members of the public. Even then, the FAA

can only expect to be able to pursue enforcement actions against a handful of individuals every

year, while thousands more continue to flout the agencys rules. Unreasonable restrictions on

FPV will do nothing more than establish an unenforceable prohibition and put the FAA in the

unenviable position of playing an eternal game of whack-a-mole with FPV hobbyists.

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Until this point in its history, the FAA has only ever dealt with a compliant population that is

by-and-large willing to abide by its regulations, and where occasional violations are relatively

easy to detect and prosecute. The FAA is wholly unprepared to deal with an entire class of

airspace users characterized by willful civil disobediencepeople who are completely unwilling

to cooperate with what they view as patently unreasonable restrictions, and who will do

everything in their power to thwart the agencys efforts at enforcement. In the resulting game of

cat-and-mouse, actual airspace safety, and respect for the rule of law in general, will only be

undermined.

Historical precedent shows that when a government agency pursues a path of overbearing

regulation that the public is unwilling to accept, it cannot succeed in the long run. Such was the

case in examples ranging from the 1920s alcohol prohibition to the FCCs battles with rogue CB

radio operators and the short-lived national speed limit of 55mph in the mid-20th

century. Try as

it might, the government cannot force an unwilling populace to abide by laws they do not accept

as legitimate or warranted.

The only thing such failed prohibitions succeed at is wasting millions of dollars in taxpayer

money and ruining the lives of those individuals unlucky enough to get caught doing what

thousands of others do with impunity. In the end, any benefit of unreasonable laws is far

outweighed by the harm of attempting to enforce them. When applied to the field of aviation

safety, the consequences of having a population of airspace users trained to view the FAA as

their enemy and habituated to ignoring its decrees, could be disastrous.

Such a result is not inevitable, however. There is still time to avert a pointless war of

prohibition between FPV enthusiasts and the FAA. If the FAA acknowledges that it cannot

simply wish FPV away through regulatory fiat, and is instead willing to accommodate FPV

enthusiasts and work with them to establish a workable system of safety regulations which the

majority of people are willing to abide by, the result will be a safer airspace and a regulatory

system that is fair to all participants.

There is no need for the FAA to make FPVers its enemy. I urge the FAA instead to embrace

FPV and the tremendous potential it has to make model aircraft operations safer; and to work

with the thriving FPV community to agree on a mutually acceptable approach to safety and

regulation going forward.

CONCLUSION

For the reasons stated above, the FAA should immediately rescind its INTERPRETATION

OF THE SPECIAL RULE FOR MODEL AIRCRAFT and acknowledge the fact that model

aircraft are not currently regulated by the Federal Aviation Regulations, nor can they be subject

to future regulation be the FAA per Sec. 336 of the FMRA. To the extent that hobbyist model

aircraft activities fall outside of the Sec. 336 exemption, the FAA must work with those

hobbyists to establish sensible regulations governing those activities in the future.

Until such time as real regulations are implemented, the FAA should refrain from attempting

to exert improper control over model aviation, and allow organizations like the AMA to continue

self-regulate using their own established and well-thought out safety codes. Attempting to

shoehorn model aircraft into existing regulations not designed for them will only lead to

confusion, decreased safety, and widespread disregard among hobbyists for regulations which

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the community views as unreasonable. The FAAs current approach to model aviation is

unworkable, unsustainable, and illegal; and it therefore must be reversed.

Submitted July 21, 2014 by:

Patrick McKay, Esq.

8707 Aspen Cir.

Parker, CO 80134

Email: Patrick@fairusetube.org

mailto:Patrick@fairusetube.org