By: Paul Fraidenburgh, Esq.

A problem with the regulatory philosophy towards unmanned aircraft systems is quickly coming into view.  While foreign and domestic governments are investing time and money developing strict standards for commercial drone use, the more pressing threat of recreational use has largely escaped the regulatory spotlight.

The Australian Transport Safety Bureau (ATSB) finalized two reports last week that shed some light on the perils of recreational drone use.  The first report describes a near collision of a passenger plane with an unmanned aerial vehicle (UAV) near Perth Airport in Western Australia.  While approaching the airport for landing, the crew “sighted a bright strobe light directly in front of the aircraft,” reports the ATSB.  The UAV tracked towards the aircraft and the pilot was forced to take evasive action, dodging the UAV by about 20 meters.  The ATSB has been unable to locate or identify the operator of the UAV, which was flying in restricted airspace at the time of the incident.

The second report describes another near collision with a recreational drone just three days later in the airspace over Newcastle, the second most populated city in the Australian state of New South Wales.  In that incident, the crew of a rescue helicopter spotted a UAV hovering over Hunter Stadium during an Australian football match.  The UAV tracked towards the helicopter as the helicopter began its descent.  The ATSB’s report was supplemented with a comment by Australia’s Civil Aviation Safety Authority (CASA), which explained that the UAV appeared to be a “first person view” vehicle that was transmitting a live video feed back to its operator.  In other words, the operator was watching the game.  Neither the venue nor the official broadcaster took or authorized any aerial footage of the game.  CASA noted that over 90% of complaints received about UAVs relate to incidents caused by first person view drones.

Though these reports come from halfway around the world, they highlight a flaw in the Federal Aviation Administration’s (FAA) approach to the use of drones in American airspace.  The FAA subjects commercial drone users to strict regulations arising from traditional “aircraft used in commerce” standards while applying the more liberal “model aircraft” standards to recreational drone users.  (See 14 C.F.R. § 91.119 [requiring aircraft used in commerce to stay at 500 feet or more in altitude above rural areas and 1,000 feet above urban areas].)  The FAA staunchly defended this system in its appeal of the Pirker case, in which the FAA seeks to overturn the decision of an administrative law judge who ruled the FAA had no regulatory authority when it fined the operator of a drone used for commercial photography.  So does it make sense for the FAA to take a hard stance towards commercial drones and a more liberal stance towards recreational drone users?

Probably not.  Here’s why:

Google, Facebook, and Amazon are among the companies preparing to use drones in the ordinary course of their businesses.  Google and Facebook plan to blanket the earth with internet access and Amazon plans to deliver packages.  These companies have invested millions of dollars not only to develop commercial drone technology, but to monitor the pulse of the regulatory environment for commercial drones.  When the FAA finally issues its new drone regulations (due by September 2015), these companies will have teams of attorneys prepared to advise on how they can legally and safely mobilize their fleets.

Unlike commercial drone users, recreational drone users are extremely difficult to regulate.  The person flying a drone over the football game is unlikely to be as responsive to the new regulations as Amazon or Google.  Recreational drone users do not have the same profit-driven concerns as commercial users, meaning they have less incentive to monitor and comply with current regulations.  Remember, recreational drone users, by definition, are just having fun.  They may not even know what the FAA is.  The activities of recreational drone users are also more difficult to monitor.  Combined with the increasing availability and affordability of drones, recreational drone users will pose a far greater threat to safety in the air and on the ground than the Googles and Amazons of the world.

With the highly anticipated new drone regulations due out within the next 15 months, only time will tell whether the FAA will correct its disproportionate treatment of commercial and recreational drone users.

From Aviation and Airport Development Law News Blog