‘107 is coming

There’s news about a Drone Photographer in Minnesota has been fined $55,000 for his photography for a ceremony for Cecil the lion. the FAA has not charged that it was a commercial flight, instead they are charging him with flying an uncertified aircraft, plus their rubber-stamp charge of 91.13, Careless and Reckless. It’s a rubber stamp charge because the FAA adds it to virtually every letter of violation and the NTSB rarely overturns a 91.13 charge.

This is an example of not understanding what the FAA means by “commercial”. The pilot’s defense is that he was not compensated for the flight and many think “commercial” means that money changed hands”, but profit or lack of it has no bearing on whether the flight is commercial or not. If you take photos or video from your drone for a charity, then good for you. But if the charity uses one of those photos in promotional material or an ad, it’s a commercial flight.

The FAA’s main task is the safety of aviation – not just the airspace. This is why everyone who touches an aircraft or support infrastructure is certified by the FAA. Most visible are the flight crew and ATC personnel. But the airport workers including baggage handlers and fuel trucks and their operators are also certified as are all maintenance technicians and the aircraft and equipment inside.

There is no exception for personal drones, but in 2012 the Congress threw the fledgling drone industry a bone in the FAA Modernization and Reform Act of 2012 (FMRA) where Section 333 gave the FAA Administrator the authorization to not require aircraft certification if the Administrator believed that it was not necessary for small UAS aircraft. Congress did not give the administrator authorization to waive airman certification which is why drone pilots seeking Section 333 exemptions are required to hold a pilot’s certificate of some kind. Further, Section 336 of the FMRA defines hobby flight which the FAA largely ignores. Unless the operator does something stupid and gets the attention of the FAA.

The FAA is not regulating commerce, as some argue. The agency is applying the law with the tools they have. The soon to be published Part 107 rules will provide more clarity, but an airman’s certificate will still be required for commercial flight. Fortunately Part 107 rules creates a new airman’s certificate that is obtained by passing a written examination. No flight test or training is required. The Part 107 NPRM also changes a handful of other FAA rules to accommodate small UAS. Most significant is 14 CFR Part 101 which codifies AC 91-57 into the rules. Hobby flight will no longer be governed by the Advisory Circular; hobby flight will be defined in a change to Part 101 (definitions). Any operation that does not meet the new Part 101 definition of hobby flight is commercial.

What amazes me is that the FPV industry doesn’t see the prohibition of FPV as a problem.
For a recap, here is what rules are affected by the Part 107 NPRM:

14 CFR Part 21 “Certification Procedures For Products And Parts” changes to exempt aircraft operating under Part 107 rules.
14 CFR Part 43 “Maintenance, Preventive Maintenance, Rebuilding, And Alteration” changes to exempt aircraft operating under Part 107 rules.
14 CFR Part 45 “Identification And Registration Marking” is changed to exempt aircraft operating under Part 107 rules.
14 CFR Part 47 “Aircraft Registration” adds the requirement that small unmanned aircraft weighing less than 55 pounds must be registered.
14 CFR Part 61 “Certification: Pilots, Flight Instructors, And Ground Instructors” is changed in two areas.
Flight time accumulated under Part 107 flight rules cannot be used to meet the flight time requirements under Part 61.
Flight Instructor privileges are changed: “authorized to accept an application for an unmanned aircraft operator certificate with a small UAS rating and verify the identity of the applicant in a form and manner acceptable to the Administrator.”
14 CFR Part 91 “General Operating And Flight Rules” changes to exempt operations under Part 107 rules and Hobby Flight.
14 CFR Part 101 “Moored Balloons, Kites, Amateur Rockets And Unmanned Free Balloons” is modified to define “model aircraft”.
14 CFR Part 107 “Small Unmanned Aircraft Systems”
14 CFR 183.23 – “Pilot Examiners” adds the provision for a Pilot Examiner to perform the identification of sUAS operator applicants.

Got questions? Ask me. I am not a lawyer but I do have the time to research your questions.

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