FAA Commercial Drone Ban Overturned – For Now

UPDATE: FAA has filed its Notice of Appeal of the case below <– Reuters Link

Yesterday, March 6 2014, the National Transportation Safety Board (NTSB) granted respondent Raphael Pirker’s motion to dismiss the FAA’s civil fine against him, stating the FAA policy since 2007 banning commercial use of drones in the U.S. has not had the force of law. Pirker had been fined $10,000 for using his 56 inch foam model airplane on the University of Virginia campus to obtain aerial video footage in exchange for compensation.

In the FAA Complaint, FAA alleged Respondent Pirker’s model aircraft was an Umanned Aircraft System and an “aircraft.” Thus, FAA argued, Pirker was subject to FAA Part 91 Section 91.13 (a)’s prohibition: “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another”; FAA Part 21.171 et seq requiring airworthiness certificates; and FAA Part 47 Section 47.3 requiring registration with FAA before flying.

However, the NTSB administrative law judge looked at several of FAA’s previous writings, the statutory regulation of Ultralights, and the language of the FAA Modernization Re-authorization and Reform Act of 2012 to come to the conclusion that FAA did not have the legal authority it asserted it had against Pirker. These writings  undercut FAA’s arguments that Pirker’s model airplane could be considered an “aircraft” and thus be subject to the regulations it had alleged Pirker violated.

First, the judge cited FAA’s 1981 Advisory Circular 91-57 (“AC 91-57”) which addresses model aircraft. AC 91-57 requests voluntary compliance stating: “Do not fly model aircraft higher than 400 feet above the surface” and advises against flying at sites near “noise sensitive areas such as parks, schools, hospitals, churches, etc.”; and advises staying away from spectators until the aircraft has been proven airworthy.

Second,  the judge looked to FAA Part 103 which addresses ultralight flying vehicles. The judge found here that ultralights are  not designated “aircraft” and subject to FAA Part 91. Part 103 defines an ultralight vehicle as “a vehicle that: (a) Is used or intended to be used for manned operation in the air by a single occupant; (b) Is used or intended to be used for recreation or sport purposes only;(c) Does not have any U.S. or foreign airworthiness certificate” and if powered, is less than 254 pounds empty weight, or if unpowered, is less than 155 pounds. Since an ultralight is not considered an “aircraft” then maybe a model airplane (small drone) is not one, either.

Third, the judge looked at FAA’s 2007 Notice 07-01 which specifies  that a UAS (Unmanned Aircraft System) must have an airworthiness certificate. The judge found this was a policy statement without the force of law. Notice 07-01 failed to be issued “as a Notice of Proposed Rulemaking (NPRM) and if intended to establish a substantive rule, it did not satisfy the requirements of 5 U.S.C. Section 553 (d), which requires publication of notice not less than 30 days before the effective date.”

Finally, the judge cited the FAA Modernization Re-authorization and Reform Act of 2012 as instructive as well. It believed that because the Act called for the issuance of a rule to be issued regarding regulating model aircraft, Congress did not believe any rule existed regulating model aircraft.

This NTSB opinion may be somewhat embarrassing for the FAA, coming on the heels of FAA’s February 26th publication Busting Myths about the FAA and Unmanned Aircraft wherein it states: “Anyone who wants to fly an aircraft—manned or unmanned—in U.S. airspace needs some level of FAA approval.” The Pirker opinion clearly states that the definitions of “aircraft” found in either Part 1, Section 1.1 or 49 U.S.C. Section 40102 (a)(6)’s definitions of aircraft do not apply to model airplanes like Pirker’s 56 inch wingspan RiteWing Zephyr (presumably a “small drone”). And, model aircraft are only subject to the voluntary compliance of the FAA’s 1981 safety guidelines found in AC 91-57.

The Pirker opinion is an excellent example of how legal advocacy can successfully challenge even a behemoth like FAA. Lawyers like Raphael Pirkman’s Brendan Schulman may uncover mistakes in an aggressive party’s legal position, sometimes revealing that the emperor has no clothes.

The FAA’s next move may be an appeal of this NTSB decision. While some commentators have begun rejoicing that the skies are now open for business for commercial drone use (for profit) as a result of this opinion, it would be wise for operators to act with caution. Even United States Supreme Court justices disagree with each other, and it is possible that the Pirker decision is not the last word on the ability of FAA to issue fines.

Hopefully, we will see relatively soon the new regulations for “small drones” in the under 55 pound category in 2014. This will finally give much needed clarity for when, and how, small drone operators may conduct business in the United States. Until then, tread lightly and responsibly.

Disclaimer: As always, the writings in DroneLawsBlog.com are not legal advice, and you should seek competent legal advice specific to your particular facts.  No attorney-client relationship is formed between readers of DroneLawsBlog.com and Antonelli Law unless you and the firm agree upon and sign an attorney agreement or similar letter agreement.


man carrying uav drone

How to Become an FPV Pilot in 8 Steps

Drone Laws Blog usually has original writing, but the AMA (Academy of Model Aeronautics) has just released a new article that answers the questions I, like many others, have about becoming a new FPV pilot. The following is from http://www.modelaviation.com/FPVforBeginners. I highly recommend joining AMA and obtaining their liability insurance as a member benefit – Jeffrey Antonelli
Written by Patrick Sherman
As featured in the April 2014 issue of Model Aviation.

The development of FPV, or First-Person View, during the past few years has drawn many new people into model aeronautics, including me. This surge of interest and enthusiasm has brought a new vitality to the hobby—new ideas and a new sense of mission that will ultimately transform RC flying and society. Of course, enthusiasm is no substitute for technical skill and many newcomers don’t know the difference between an ESC and an EC-5 connector.

Here at the Roswell Flight Test Crew, one of our primary goals is to teach people how to build their own FPV platforms. Because most of them fit into this novice category, we usually spend more time talking about how to build and fly aircraft than we do discussing the actual FPV systems.

When Editor-in-Chief Jay Smith of Model Aviation asked me to put together a how-to article about FPV, I jumped at the chance. As AMA members, you already have building and flying abilities, so I can skip straight to the fun part!


In order to lawfully utilize the radio frequencies that are required for FPV flying, you will need to be a licensed ham radio operator. This sounds like a daunting first step, but it isn’t the ordeal that it used to be.

In 2007, the FCC eliminated the requirement to know Morse code to become a ham operator. Today, all you have to do is pass a 35-question, multiple-choice test in order to qualify for a Technician license—the first of three levels of licenses available from the FCC and probably the only one you will ever need as an FPV pilot.

There are books and online courses available to help you prepare, but we signed up for a free, two-day class offered by a local ham radio club. To find classes in your area, visit the Amateur Radio Relay Network website listed in the “Sources” section.

If I can pass this test despite having the same level of technical acumen as a half a ton of igneous rock, anybody can do it!

STEP TWO: Choose an Aircraft

Contrary to what you might think from watching online videos, you don’t have to choose a multirotor! I believe that multirotors have become closely associated with FPV flying because both technologies matured at roughly the same time. Because multirotors are stable, mechanically robust aircraft, they were a natural choice for beginners who were drawn into RC flying by the potential of FPV.

Although you don’t need a multirotor, the aircraft does need to be a stable platform—either rotorcraft or fixed wing—with sufficient payload capacity to carry the necessary gear. Helicopters are certainly an option for a skilled pilot, but they tend to induce more vibration to the camera mount than other aircraft types. Foamie trainers and flying wings are popular fixed-wing choices, but we at the Roswell Flight Test Crew favor the ubiquitous multirotor.

Easy to fly and having as few as four moving parts, multirotors such as the Roswell Flight Test Crew’s RQCX-3 Raven hexacopter, are a popular choice for FPV platforms.

STEP THREE: Frequencies

Several frequencies are available to carry the live video feed from your aircraft back to you on the ground: 900 MHz, 1.2-1.3 GHz, 2.4 GHz, and 5.8 GHz. As a seasoned aeromodeler, I’m sure that one of those frequencies set off all sorts of alarm bells ringing inside your head—2.4 GHz, because that’s the same frequency our modern control radios use.

Unless you’re still rocking a 72 MHz crystal radio that you’ve had since 1975, let’s take 2.4 GHz off the list. Alternatively, if you’re using a 433 MHz long-range system to transmit control signals to your aircraft, 2.4 GHz is back on the table.

As a general guide, the lower frequencies (900 MHz, 1.2-1.3 GHz) tend to be more forgiving if a physical object such as a tree comes between the pilot and his or her aircraft. However, the antennas tend to be larger because of their longer wavelengths, which can make them more difficult to mount on your aircraft and more vulnerable to damage.

Conversely, 5.8 GHz signals are more easily blocked by intervening objects, but the antennas are much, much smaller and easier to install.

STEP FOUR: Transmitter/Receiver and Antenna

If you want to fly FPV, you’ll need a video transmitter onboard your aircraft to send live video, and a video receiver on the ground to pick up those signals. Wireless video systems aren’t standard equipment at most hobby stores, so you’ll probably have to look online to find one.

After you’ve identified a vendor, you’ll find that transmitters on your chosen frequency are available at a variety of different output levels, generally ranging from 100 milliwatt to 2 watts. It’s tempting to drop the most powerful one in your shopping cart and click buy; however, a good-quality antenna will actually have a much larger impact on signal quality than a high-powered transmitter.

Antenna quality is reflected in its gain (dB), and every three points of gain is equal to doubling the power of your transmitter. In other words, if you pair a 500-milliwatt transmitter with a 9 dB antenna, it will perform as though you have a 2-watt transmitter—at a fraction of the cost and the power draw on your battery.

Available online from specialty retailers, these circular, polarized receiver antennas provide great omnidirectional performance, which has made them popular among FPV pilots. As the wavelength of the signal being received decreases, the antennas shrink substantially, from the 1.3 GHz antenna at the top of the photo to the 5.8 GHz one on the lower left. A quarter is included for scale.

STEP FIVE: Choosing a Camera

When it comes to selecting a camera, you have a clear choice: a small, inexpensive, lightweight board camera or a heavier, more expensive sports camera such as the GoPro Hero series. Board cameras, which take their name from the fact that they resemble a lens attached to a circuit board, are typically powered directly from the main flight battery. They have no built-in capability to record the images that they capture.

Some sports cameras, such as the GoPro, have the ability to pass through live images as well as record high-definition (HD) video, which gives you the ability to relive your aerial adventures after the aircraft is back on the ground. A drawback is that these sports cameras are powered by their own internal batteries, which could run out of juice before your flight battery and leave you flying blind.

Many FPV pilots opt for both, wiring a board camera to their video transmitter and carrying a GoPro to record HD video without connecting it to their FPV systems. At Roswell Flight Test Crew, our practice is to use a video switch onboard our aircraft, so that we can switch back and forth between cameras while in flight.

Two frequent options for FPV cameras: a GoPro Hero on the right, which can send a live signal while simultaneously recording HD video; and, on the left, a lightweight, inexpensive board camera with interchangeable lenses to customize the field of view.

STEP SIX: On-Screen Display

This step isn’t mandatory, but it is a really good idea. An On-Screen Display (OSD) puts an overlay of aircraft telemetry on top of your video image. The most sophisticated OSDs resemble the Heads-Up Display on a modern jet fighter, with animated ladders that represent altitude, airspeed, direction, distance to home, and even an artificial horizon.

The most crucial piece of information that any OSD worth having onboard your aircraft can provide is your flight battery’s voltage. It’s easy to get caught up in the experience when you’re flying FPV, so it’s nice to have a reminder that your battery level is dropping, prompting you to complete the flight.

A sophisticated OSD can cost hundreds of dollars and include its own independent GPS receivers as well as a suite of sensors to directly measure altitude, airspeed, motor temperature, and g-forces. However, a simple OSD that only displays battery voltage can be purchased for less than $20.

This OSD provides the pilot with aircraft telemetry overlaid on top of the FPV video, including battery voltage, airspeed, altitude, compass heading, distance and direction to home, and latitude and longitude coordinates. It can even accept input from additional sensors to measure motor and ESC temperatures, g-forces, and other flight parameters.

STEP SEVEN: Choose Goggles or a Video Screen

Now that you have video and telemetry streaming live from your aircraft, you’re going to want to see it. There are basically two options available: video goggles or a small, battery-powered screen.

Goggles provide a much more immersive experience, putting you onboard your aircraft without any outside distractions. It can help novice pilots avoid becoming disoriented, because there is no temptation to look up at the aircraft itself and potentially become confused about whether it is coming or going.

Using a screen allows other people to watch the flight progress over your shoulder. This is a popular choice for aerial photographers who need to frame their shots while simultaneously keeping an eye on their aircraft as it moves through the environment.

Video goggles such as these Fat Shark Dominators, made specifically for FPV flying, are a popular choice because they provide an immersive experience by eliminating outside distractions from the pilot’s field of view.

A small video screen is one option for receiving the real-time FPV feed from your aircraft. It allows other people to share your aerial adventures by watching over your shoulder, and is a popular choice for aerial photographers. Be sure to get one that will display static rather than a “blue screen” in the event that you experience a partial signal loss—a broken-up image is preferable to none at all.

STEP EIGHT: Find a Friend

As described in Document 550, available on the AMA website, FPV flying is a team sport. There need to be at least two qualified pilots on the ground while the aircraft is in the air: the pilot, who is operating the aircraft via the FPV system, and the spotter, whose job is to alert the pilot to unseen hazards and be ready to take control of the aircraft in case of an FPV system failure.

After the goggles are on, the spotter has a critical role to play in maintaining the pilot’s situational awareness. Although the pilot can see what lies directly ahead, he or she may not detect a hazard off to one side or behind, or when there is a risk of putting an obstruction between the pilot and the aircraft. The wide field-of-view lenses typically used for FPV can make it difficult to spot small, but potentially show-stopping obstacles such as a bare tree branch or a power line.

Safe FPV flight operations require a minimum of two people on the ground: the pilot (R), who controls the aircraft and monitors the live video feed from the aircraft, and the spotter, who advises the pilot regarding unseen hazards and can take over control if the FPV system fails completely.

The Future

When conducted within the guidelines established by the AMA, flying FPV is as safe as conventional model aviation. It’s also a tremendous amount of fun, and becoming involved will put you at the forefront of revolution that will ultimately change the world.

In the years ahead, unmanned aircraft that are indistinguishable in their basic functions from the systems that hobbyists are using today will help first responders save lives, give farmers the ability to increase crop yields, and perform thousands of other functions, most of which haven’t yet been imagined.

It’s going to be an exciting couple of decades. Build yourself a system and come be part of it!

—Patrick Sherman


Roswell Flight Test Crew

Amateur Radio Relay Network


AMA Document 550

– See more at: http://www.modelaviation.com/FPVforBeginners#sthash.8MEqhZ2W.dpuf

Are They Watching Me? A Drone Legal Analysis

At Antonelli Law, we review many legislative attempts to address concerns about drones.  One man’s “reasonable expectation of privacy” may not be quite like another, especially when technology enhances the ability to “see.” Clear legislation telling us what is – and what is not – okay may be what the industry needs to realize its potential, without a stifling headwind of invasion of privacy lawsuits, among other concerns.

The United States Supreme Court has stated as recently as 2012, in United States v. Jones, that “in circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.”

One state ‘s reaction to the use of drones (“unmanned aircraft”) is Texas. In 2013, Texas enacted HB 912, which makes it illegal to use “an unmanned aircraft to capture an image of an individual or privately owned real property in this state with the intent to conduct surveillance on the individual or property captured in the image.” Many exemptions are present, such as when being used by  law enforcement, the military, and – curiously – a plethora of exemptions for the utility industry:  images “captured by or for an electric or natural gas utility….for operations and maintenance of utility facilities… for inspecting utility facilities to determine repair, maintenance, or replacement needs…. [and] for assessing vegetation growth for the purpose of maintaining clearances on utility easements.”

But what if you believed that comments you made in 2009 to a pilot about his takeoff and banking maneuvers (followed by complaints to the tower and to the airport owner) made you the object of a campaign by the FAA to surveil you? In 2012, Hank Jacobus filed a federal lawsuit claiming that due to this conversation with the pilot, he became the target of stalking and harassment campaign by the FAA. He claimed private planes and commercial jetliners followed him around the country without a warrant, and that commercial and military planes and drones were rerouted to fly over his home or any other location in which he was present. He believed that he was constantly being watched and monitored and that he had been placed on a terrorist watchlist. He also claimed that law enforcement personnel were trailing him constantly.

The federal court dismissed claims early in the case. It said that the lawsuit’s complaint failed to state a claim and must be dismissed, because “Jacobus’s contention that the FAA is responsible for the alleged surveillance and harassment is particularly implausible when considering the FAA’s mission and function.” The Court said:

Instead, the major responsibilities of the FAA include promoting civil aviation safety, operating a system of air traffic control and navigation for both civil and military aircraft, and developing and carrying out programs to control aircraft noise and other environmental effects of civil aviation. Given these responsibilities, it is extremely unlikely that the FAA would facilitate “buzzing” or harass an individual by using commercial and military aircraft. Jacobus’s contention that the FAA has allowed air traffic controllers, for more than three years, to continuously route and re-route air traffic over Jacobus’s person, regardless of his whereabouts, the weather conditions, predetermined flight plans and patterns, military operations, air space congestion, the schedules of commercial airlines, and the safety of airline passengers, is utterly fantastical.”

The United States Court of Appeals for the Fourth Circuit affirmed the district court’s dismissal of the lawsuit.

The lesson? Perhaps it is that if you think you are being surveilled by the government, you better have a record of the activity. A drone to surveil their drone, perhaps?

One Idea to Hasten Autonomous Drone Acceptance

I recently asked my research assistant David Heath  to help get me up to speed on the various Sense and Avoid (SAA) technologies available for drone/UAV use (I’m still working on whether to just use the word “drone” from now on).  David gave me some information on the BAE Systems’ AD/DPX-7 Identification Friend-or-Foe (IFF) transponder with Automatic Dependent Surveillance – Broadcast (ADS-B) receiver; the GA-ASI-developed Due Regard Radar (DRR); and Honeywell’s TPA-100 Traffic Collision Avoidance System or TCAS.

A few days later, I was discussing with attorney and pilot Kate Fletcher about an article we recently read about drones getting too close to commercial aircraft’s airspace.  Clearly, nobody wants drones to interfere with the safe operation of full scale aircraft! We discussed a bit about the systems in place for aircraft to aircraft avoidance. It then occurred to me that what is needed is a technology that prevents a drone from being operated into the path of an airplane.  In other words, no matter what the input of the drone operator, even if they tried to get a drone into prohibited airspace, it just would not work. Likewise, no autonomous drones would be permitted into the impending path, no matter the GPS way points inputted.

I have no idea if this is already being worked on, and it does make me recall the criticisms of President Clinton calling for a “V chip” in televisions to restrict children from viewing inappropriate programming -the technology apparently did not exist at the time it was required by law to be put in place in the future. However, if the drone/UAV industry were to soon demonstrate this technology is bulletproof, just maybe it will help speed up FAA regulations permitting commercial use of drones.

What do you think? Is this already being worked on? Please let us know in the comments.

Drone Laws Blog by Antonelli Law

Antonelli Law focuses on business and individual intellectual property technology issues, including internet copyright infringement, and the use and manufacturing of civilian drones. The firm’s Principal, Jeffrey Antonelli, began flying radio controlled airplanes several years ago which lead him to research new technologies including first person viewing (FPV) and drones. Drones are also called unmanned aerial vehicles (UAVs) or unmanned aircraft systems (UASs).

Our Drone Law legal practice began in January 2014. We began by researching the current state of both FAA and state laws. We then  hired an engineering student as a research assistant to help us genuinely understand the technological challenges facing our future clients.

In February 2014 we added attorney Kate Fletcher as Of Counsel to the firm. In addition to her law practice, Kate is a 737 pilot with American Airlines.  Kate has over 10,000 hours of flight experience and is Type-Rated in the Saab 340, Citation CE-500, DC-9, Boeing 737, 757, and 767.  Kate’s flying experience is varied and includes traffic watch in the San Francisco Bay Area, Air Ambulance, Flight Instructing and Communter and Major Airline Domestic and International flying.  Kate brings a wealth of knowledge in aviation to the practice of law.

We look forward to serving future clients involved in the manufacture and use of drones at Antonelli Law, and will use this  DroneLawsBlog.com to share news, insights, and updates to the swiftly changing state of the law and the Drone Law practice of the firm.

Jeffrey Antonelli

This video clearly shows the ability to provide a true bird’s eye view of an entire operation. With a drone/UAV, the operator can obtain updated data of a constantly changing site, such as this mining operation.

An Antonelli Law blog on UAS/Drone Law