FAA spokesman Les Dorr, in a Poynter story about a journalist’s use of a radio-controlled aircraft to film airborne video, once again publicly stated the FAA’s claim that commercial use of radio-controlled aircraft is prohibited. The Spokane, Wash.,-based Spokesman-Review ran the journalist’s video of a polar-bear swim event on its website. '

Reacting to that video, Dorr was quoted by Poynter as saying, “If you’re using it for any sort of commercial purposes, including journalism, that’s not allowed.” He added, “It’s an attractive technology for journalists, and people would like to be able to use it. That said, the FAA is responsible for the safety of the airspace. And as much as we’d like to encourage them, we can’t let them do it as long as there are no rules in place.”

This is an extraordinary statement. In other words, if no rule specifies what someone can do, then they can’t do it. So Orville and Wilbur Wright should not have been allowed to fly the Wright Flyer because there were no applicable regulations. And the FAA, when it came into being, should immediately have engaged in a severe enforcement action with a hefty civil penalty against both Orville and Wilbur. 

How is it possible to violate a regulation that doesn’t even exist?

It has been pointed out before that although the FAA claims that commercial operation of radio-controlled aircraft or unmanned aircraft systems (UAS) or drones–whichever term you prefer–is prohibited, the agency has yet to cite any regulation that supports that claim. The only legal case involving this kind of activity is in the courts now and may help resolve this issue, but this case rests on violation of a single regulation, 91.13(a), the prohibition against careless and reckless operation. 

For coverage of the polar-bear spontaneous swim coverage, Spokesman-Review photography staffer Jesse Tinsley flew his DJI Phantom quadcopter to shoot video with a GoPro camera. Tinsley, who is also a private pilot, told me that he flew his Phantom at less than 100 feet and not over any people or over anyone’s private property. As a newspaper staffer, Tinsley didn’t sell his footage to the paper, so it’s questionable how this even qualifies as a commercial operation, except perhaps to note that the Spokesman-Review sells advertising on its website.

“I regret going over this line,” he said, “but I hope the FAA is reasonable about allowing hobbyists and small-time use with some reasonable rules.” Tinsley doesn’t want to become another test case for the commercial use of radio-controlled aircraft and said, “I’d just as soon keep my head down and play with my radio-controlled toy on my farm.” That said, he is also aware that thousands of hobbyists are flying their camera-equipped radio-controlled aircraft and some are even posting airborne photos in newspapers.

And what about the makers of these devices, which fly them at trade shows and other venues to demonstrate the models’ capabilities? “In a way, that’s commercial use,” he noted. Another example of commercial use might be radio-control training operations, which teach people to fly model aircraft. In any case, the FAA says it has jurisdiction over all airspace in the U.S., a claim that could allow it to regulate even a hobbyist’s radio-control flying on his own private property, such as Tinsley’s farm.

Ultimately, Tinsley hopes that the FAA will develop common-sense regulations that apply to small UAS such as the three-pound Phantom and its many possible uses. He can even see the day when there is a certified Phantom, but at the same time hopes that applicable UAS regulations are tiered, so that a Phantom-like device isn’t subject to the same strictures as a large turbine-powered, airplane-sized, long-endurance drone. 

The FAA is working on regulations addressing the use of small UAS in the national airspace system, having been pushed by Congress to come up with an appropriate regulatory framework. This effort was started in July 2009 but languished until last year when Congress enacted a law to force the FAA into action. According to the Department of Transportation, the regulations are supposed to be submitted to the Office of Management and Budget on January 13, which should then clear the proposed regulations on April 14, followed by submission for public comment on May 12. 

We’ll see if that happens. In the meantime, the FAA is going to continue saying that commercial operation of radio-control aircraft is prohibited, without any regulations to back up that claim.