Who's Safety Guidelines Should Modelers Abide By?

Let's start off with a fact: model aviation has a nearly impeccable safety-record. Given the sheer numbers of radio-controlled aircraft operating in the National Air Space, the actual instances of collisions with manned aircraft are surprisingly low; we're talking count-on-one-hand low. There have been a few reported collisions in Europe over the years, and who can forget the full-scale biplane that struck the hovering giant-scale aircraft at the charity fly in, and the poop-storm of finger pointing that ensued from both sides? Yes, a few bad apples and a quadcopter with a flame thrower roasting a turkey make for sensational media headlines, but all joking aside, we've kept our noses pretty clean since the beginning.

So here's where our hobby made a u-turn and headed south for the winter. The FAA, standing behind 700+ unsubstantiated reports of near misses with drones, and peppering in some fear-inducing statements about 'millions of drones under Christmas trees', reacted with emergency action to push through a UAS registration process aimed at combating this perceived threat to the National Air Space. Before we as modelers had time to digest or even comment on the registration process, it was implemented and set into motion. The Federal Aviation Administration must have had selective amnesia with regards to the FAA Modernization and Reform Act of 2012... you know, the act containing section 336 that prevents The FAA from regulating hobby model aircraft? In case you forgot, here's what section 336 states:

Section 336 prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft” if the following statutory requirements are met:

the aircraft is flown strictly for hobby or recreational use.

the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.

the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization.

the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and

when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower ... with prior notice of the operation....

The FAA's Acknowledgement of Safety Guidance

Since the registration process began, the FAA has claimed they aren't violating section 336 of the FAA Modernization and Reform Act of 2012, that model airplanes have always been able to be registered, which isn't technically regulation... who comes up with this stuff? So we begrudgingly rolled over just enough to show our bellies, as a small percentage of the total modelers in the USA began signing up and registering themselves with the FAA. Law suits have begun to pop up here and there, legal experts have weighed in with optimistic outlooks on the FAA losing this battle, and grassroots letter-signing campaigns have been making their rounds on social media and the modeling forums.

But wait just one minute there, FAA. You say you're not making any new rules or regulations? I beg to differ! In order to register, the helpless modeler must agree to the Acknowledgement of Safety Guidance, a page in the registration process requiring you to check a box labeled "I have read, understand, and intend to follow the safety guidance". But what exactly does the safety guidance say?

The FAA Acknowledgement of Safety Guidance states:

I will fly below 400 feet.

I will fly within visual line of sight.

I will be aware of FAA airspace requirements.

I will not fly directly over people.

I will not fly over stadiums or sports events.

I will not fly near emergency response efforts such as fires.

I will not fly near aircraft, especially near airports.

I will not fly under the influence.

A few of those sound like new rules and regulations to me. They aren't laws per-se, but the ambiguous wording leaves the true nature of the guidelines very much open to interpretation, especially in a legal setting. Most of the above safety guidelines are common sense and covered under the AMA's Safety Code, but what about flight above 400 feet and FPV? By checking the box, could the rules of the Acknowledgement of Safety Guidance be held against you in civil or federal court? These are real questions that modelers are asking, and fortunately the AMA has stepped in and said otherwise.

The AMA Safety Code to the Rescue?

The AMA recently updated their Government Relations Blog with a couple of answers to frequently asked questions that take aim at the FAA's Acknowledgement of Safety Guidance, specifically the 400 foot and FPV rules. Here's what they said:

Q: Am I permitted to fly above 400 feet? What if I had to check a box saying otherwise on the federal registration website?

A: Yes. AMA members who abide by the AMA Safety Code, which permits flights above 400 feet under appropriate circumstances, and are protected by the Special Rule for Model Aircraft under the 2012 FAA Modernization and Reform Act. Checking the box on the federal registration webpage signifies an understanding of the 400 foot guideline. This is an important safety principle that all UAS operators need to be aware of, and is the same guideline established in AC 91-57 published in 1981. However, the placement of this guideline on the FAA website is intended as an educational piece and more specifically intended for those operating outside of AMA’s safey program. We have been in discussions with the FAA about this point and the agency has indicted that it will be updating its website in the next week to make clear that this altitude guideline is not intended to supplant the guidance and safety procedures established in AMA’s safety program.

Q: Am I permitted to fly first person view (FPV)? Can I fly at night?

A: Yes. AMA members are still protected by the Special Rule for Model Aircraft, which is part of the 2012 FAA Modernization and Reform Act. As long as AMA members continue to follow AMA’s safety guidelines for these activities, they can continue to fly. The guidelines listed on the FAA UAS website do not negate the modeling activities and related safety procedures established in AMA’s community-based safety program.

So as long as AMA members abide by the AMA Safety Code and specifically AMA Document #550 for FPV operations, the FAA's Acknowledgement of Safety Guidance with regards to the previous mentioned rules is not valid. But how does the FAA feel about this blatant null-and-void rendering of their own "rules"? Apparently, they're ok with it.

The FAA Actually Tells Modelers to Follow the AMA's Rules

Just when you thought all the wrenches had been thrown into all the gears, the FAA further confuses modelers by saying we should indeed abide by "aeromodeling community-based safety guidelines", the very same guidelines that allow for flight over 400 feet and FPV. You can read the do's and don't here. And if that wasn't the icing on the cake, Forbes editor John Goglia posed the same question in an article. You can read the article here, in which he asks an FAA spokesperson about the obvious discrepancies between the FAA and AMA safety guidelines. Essentially, the spokesperson replies that modelers should follow the AMA's rules.

Conclusion

In my humble opinion, the FAA's UAS Registration is wrought with holes. The forced acceptance of the Acknowledgement of Safety Guidance only serves to further confuse modelers who have been safely operating under the AMA's safety guidelines for decades. The grey area gets larger when you question the legality of the Acknowledgement of Safety Guidance; they aren't laws, but are they merely suggestions? The FAA Modernization and Reform Act of 2012 expressly denies the FAA from making any rules or regulations, so they must be suggestions, right? Can civil penalties be imposed for "breaking them"? The AMA thinks not. And apparently, the FAA agrees, if you go by their own list of do's and dont's.

It's been a tumultuous end to 2015 with regards to how, when, and where we operate our models. Let's hope that 2016 brings rules that we can all live by, as we continue to operate safely with the freedoms we've had in place for nearly 100 years.

Links:

AMA Blog - UAS Registration Frequently Asked Questions

FAA What Can I Do With My Small Unmanned Aircraft? Hobby/Recreational Flying

AMA Safety Code

AMA FPV Document #550