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Public Comment Period for Controversial FAA Rules for Unmanned Aerial Vehicles (Model Aircraft) Closes Soon

The Federal Aviation Administration (the FAA) has already received more than 3,000 comments on a controversial Notice of Interpretation (the Notice) regarding the special rule for model aircraft in the FAA Modernization and Reform Act of 2012 (the Act).

The Act directs the Department of Transportation to develop a comprehensive plan to accelerate the integration of civil unmanned aircraft systems into the national airspace system and provide guidance regarding the operation of unmanned aircraft systems. The Act defines unmanned aircraft as “an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.” Unmanned aircraft are more commonly referred to as unmanned aerial vehicles (UAVs) or drones.

Section 336(a) of the Act prohibits the FAA from promulgating any rule or regulation regarding model aircraft if:

  1. the aircraft is flown strictly for hobby or recreational use;

  2. the aircraft is operated in accordance with a community-based set of safety guidelines;

  3. the aircraft is limited to not more than 55 pounds;

  4. the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and

  5. when flown within five miles of an airport, the operator provides the airport operator and the airport air traffic control tower (if applicable) with prior notice of the operation.

Section 336(c) defines a “model aircraft” as an unmanned aircraft that:

  • is capable of sustained flight in the atmosphere;

  • is flown within visual line of sight of the person operating the aircraft; and

  • is flown for hobby or recreational purposes.

On June 16, the FAA issued the Notice, which provides additional guidance interpreting the special rule in the Act. First, the Notice sets forth the FAA’s position that model aircraft that meet the exception are not necessarily excepted from all rulemaking having an effect on model aircraft, including rulemakings that apply to all aircraft. Second, the Notice interprets the “visual line of sight” requirement to exclude the use of first-person view/remote-person view technology. Third, the Notice interprets the “hobby or recreational purpose” requirement to exclude commercial operations and flights in furtherance of business, or incidental to business. According to the examples provided in the Notice, an operator may fly a model aircraft at the local model aircraft club, but may not receive money for demonstrating aerobatics. Similarly, an operator may take photographs for personal use, but a realtor may not photograph property he or she is trying to sell. An operator of a model aircraft may move a box from point to point without compensation, but may not deliver packages for a fee. Finally, an operator may use model aircraft to view a field to determine if crops grown for personal enjoyment need water, but may not if the crops are grown as part of a commercial farming operation.

The Notice also sets forth the FAA’s position regarding its enforcement authority. Section 336(b) provides that the FAA may pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system. In the Notice, the FAA concludes that Congress intended for the FAA to rely on its existing regulations to protect the safety of the national airspace system and sets forth a non-exhaustive list of regulations that apply to model aircraft.

The comment period for the Notice ends on July 25. Comments received to date indicate strong opposition to the rules prohibiting the use of first-person view technology as well as the restrictive interpretation of the phrase “hobby and recreational purpose.”



About this Author

Michala Irons, Tax Attorney, Barnes Thornburg, Law Firm

Michala P. Irons is an associate in Barnes & Thornburg LLP’s Indianapolis, Indiana office and a member of the firm’s Tax Department. Ms. Irons assists individuals, businesses, and nonprofit organizations with federal tax planning, including income tax, employment and self-employment tax, excise tax, and net investment income tax issues.  Ms. Irons also represents taxpayers in matters before the Internal Revenue Service, including collections, examinations, appeals, and requests for private guidance from the IRS National Office.

Connie Lahn, Barnes Thornburg Law Firm, Minneapolis, Corporate and Litigation Law Attorney

Connie A. Lahn is the managing partner of the Minneapolis office of Barnes & Thornburg. She is a member of the Finance, Insolvency and Restructuring Department and co-chairs the Asset Revitalization Practice Group. Ms. Lahn is also the co-chair of the firm’s Special Servicer Team. She also serves on the firm's diversity and inclusion committee. Ms. Lahn focuses her practice on bankruptcy law, workouts, equipment leasing issues, foreclosures, real estate remedies, commercial mortgage-backed securities defaults, and related commercial litigation. Additionally, she advises on UAV matters. Ms. Lahn has a national practice representing Fortune 500 clients across the country. She has appeared in cases such as Hostess Brands, Inc.; Petters Company, Inc.; Polaroid Corporation; Delta Air Lines, Inc.; Lyman Lumber Company; and Northwest Airlines.

She represents financial institutions, creditors, and equipment lessors in major restructuring cases. Ms. Lahn considers her relationship with clients on workouts and defaults as that of a trusted business partner who understands the business objectives and the sensitivities of such matters. She has represented a number of national clients with workouts and foreclosures of their major loan portfolios.

Ms. Lahn also represents unsecured creditors’ committees and liquidatory trusts. She represented the creditors committee in one of the largest Ponzi scheme cases in the nation. In addition, she represents the creditors committee in one of the nation’s oldest and largest lumber cases. Ms. Lahn also has bankruptcy appellate experience having participated in numerous bankruptcy appeals on behalf of clients, including preparing numerous amicus briefs.

Ms. Lahn has been active in every major aviation bankruptcy. This has given her an intimate understanding of the aviation industry and led her to form the firm's UAV Practice Group. She is a frequent presenter on UAV issues and regularly advises clients on UAV issues, privacy and procedural issues.

Prior to joining Barnes & Thornburg, Ms. Lahn was a shareholder and chair of the Bankruptcy & Insolvency Group at Fafinski Mark & Johnson, P.A., in Minneapolis. In addition, she previously served as a law clerk for the Honorable Dennis D. O’Brien, Chief Judge of the United States Bankruptcy Court for the District of Minnesota.

Ms. Lahn has been recognized on the Minnesota Super Lawyers list every year since 2007 and was named on the Top 50 Women Lawyers in the 2013-2016 editions. Similarly, she was named one of Minnesota's Top 100 Women Attorneys in both 2008 and 2009 by Super Lawyers. In the 2018 edition of The Best Lawyers in America, Ms. Lahn was recognized for her work in bankruptcy and creditor debtor rights/insolvency reorganization law.

Clifford G. Maine, Barnes Thornburg Law Firm, Grand Rapids, Corporate Law Attorney

Clifford G. Maine is chairman of the firm’s Aviation Law Group. Mr. Maine's practice encompasses a wide variety of aviation law practice areas. He serves as general counsel to numerous aviation organizations, including the Southwest Michigan Regional Airport Authority.

Mr. Maine’s aviation clients include some of the largest corporate flight departments in the world. He has structured numerous aviation transactions, including domestic and foreign-based aircraft purchase and sale transactions, like-kind exchanges, timeshare agreements,...