FAA under fire for enforcing hobbyist UAS regulations

By Patrick C. Miller | March 19, 2015

The U.S. Federal Aviation Administration is being criticized for its attempts to enforce regulations limiting the use of small unmanned aerials systems (sUAS) to hobby or recreational purposes.

“This is the FAA putting its nose into an area that traditionally it has no institutional experience with, which is the First Amendment,” said Miami attorney Brant Hadaway who blogs on UAS issues at dronelaw.com and is with the Diaz Reus law firm.

Jayson Hanes of Lutz, Florida, received a letter on March 9 from FAA safety inspector Michael Singleton advising him that the agency had received a complaint about the videos Hanes shoots with his unmanned aerial vehicle (UAV) and posts on his YouTube channel.

“After a review of your web site, it does appear that the complaint is valid,” the letter stated. It goes on to cite regulations related to flying UAS for hobby and recreational purposes.

“It is not—as has been characterized—a cease and desist letter,” FAA spokesperson Les Dorr told UAS Magazine. “We really refer to them as education letters.”

On March 3, Maine resident Steven Girard received a voicemail message from Bobby Reed, manager for FAA Flight Standards District Office in Portland, Maine, which said Girard’s website violated the agency’s regulations against the commercial use of UAS. Reed advised Girard to “pull down the website” and suggested that there could be “serious implications” in the form of fines and penalties if he didn’t.

In Hanes’ case, the FAA determined that because Hanes’ videos are monetized—he can receive payment from YouTube for the advertisements that run with the videos he uploads—he is using his UAV for commercial purposes.

“Our inspectors who handle unmanned aircraft systems have certain guidelines they have to adhere to, and asking someone to take down a video is not in the guidelines,” Dorr said. “We are looking at what the best way to address this situation is, but we don’t have anything final at the moment.”

In an interview with Fox 13, a Tampa Bay TV station, Hanes said: "I have never accepted a payment from Google, or YouTube in any shape or form for this. They maybe enabled it to collect page-views, but I'm not getting paid for it. This is not a commercial operation, I'm not selling anything. If anything, it's YouTube trying to recover costs for hosting the content and making it available on their platform."

Although Google, which owns YouTube, would not comment specifically about Hanes’ videos, a spokesperson emailed UAS Magazine links that inform YouTube users of how they can monetize their videos if they choose to do so and how they’ll be paid. 

The problem, as Hadaway explained, is that there are currently no clearly defined regulations providing guidance on the difference between commercial and recreational use of UAS.

“There’s no hard and fast rule,” he said. “There’s no court opinion; there’s no statute; there’s no federal regulation that draws a bright line here that says this is where commercial activity ends and private recreational use begins.”

Girard said he started his website—xtremeaerialview.com—for fun initially and began selling scenic photos shot from his UAV. Later, he offered photos and videos for real estate listings, weddings and family events for a fee.

Girard said he attempted to contact the FAA by phone and e-mail about his website, but never heard anything. However, since receiving the phone call from Reed, he’s removed his price list from his website, which remains online. Based on advice he received, Girard also declined to attend a meeting scheduled with local FAA officials.

Referring to a recent decision not to prosecute a person whose UAV crashed on the White House lawn, Girard said, “I don’t think I’m doing anything wrong. It’s not like I’m flying over the White House. I don’t know why that guy doesn’t get charged. It doesn’t make any sense.”

Hadaway believes that with both Hanes and Girard, the FAA is making a legal stretch to characterize their UAS use as commercial operations.

“The FAA’s institutional experience is with regulating aircraft and pilots and all the support infrastructure that goes into that. So this is a very weird area for the FAA to get into,” Hadaway said. “They’re just not institutionally set up to deal with it.”

Dorr said the FAA will continue to study the best way to handle these situations. However, he explained that part of the problem is the misconception among some sUAS operators that there are no enforceable regulations that pertain them.

“Obviously, that is incorrect,” he said. “If you’re flying for hobby or recreational purposes, you don’t need specific FAA approval. But you do have to fly according to the law, the law being section 336 of the FAA authorization—a special rule for model aircraft,” Dorr explained. 

 

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