Are Drones Legal as "Hobby" Aircraft?

The prevalence of drone flights on farms and in other remote locations has apparently caused some real concern at the Federal Aviation Administration (FAA). There are court cases pending to determine whether current drone usage is legal (from both a regulatory standpoint and a First Amendment standpoint--more on that in future posts), and new FAA regulations are expected in 2015 integrating drone use into U.S. airspace. But in the meantime, many farmers are taking to the skies--either believing drones are already legal or believing no one will notice or care.

The main reason I hear explaining why drones are legal in the US is that they are essentially "model" or "hobby" aircraft. I thought it was worth digging into the legal basis for this claim. Here's what I found.

The FAA states: "Flying model aircraft solely for hobby or recreational reasons does not require FAA approval." However, flyers must follow the FAA Advisory Circular 91-57 guidelines for model aircraft. These guidelines instruct a model aircraft operator:

a. Select an operating site that is of sufficient distance from populated areas. The selected site should be away from noise sensitive areas such as parks, schools, hospitals, churches, etc.
b. Do not operate model aircraft in the presence of spectators until the aircraft is successfully flight tested and proven airworthy.
c. Do not fly model aircraft higher than 400 feet above the surface. When flying aircraft within 3 miles of an airport, notify the airport operator, or when an air traffic facility is located at the airport, notify the control tower, or flight service station.
d. Give right of way to, and avoid flying in the proximity of, full-scale aircraft. Use observers to help if possible.
e. Do not hesitate to ask for assistance from any air traffic control tower or flight service station concerning compliance with these standards.

Don't assume that these guidelines mean that flying a drone under 400 feet means the FAA will consider such usage legal. The FAA recently called this belief a "misperception" of the law, stating: "The FAA is responsible for the safety of U.S. airspace from the ground up. This misperception [that the FAA has no control under 400 feet] may originate with the idea that manned aircraft generally must stay at least 500 feet above the ground. Read: Busting Myths About the FAA and Unmanned Aircraft.

So are farm drones legal as "hobby" or "model" aircraft? That probably depends on the drone and how it is being used. Our courts are currently sorting that out. In the meantime, if you are flying your farm drone anyway, you would be wise to follow the FAA's guidelines for hobby aircraft.

Read more at Janzen Ag Law Blog by Todd Janzen, Partner, Plews Shadley Racher & Braun LLP.

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