BFV Perspectives, Drones in Business, | Apr 25, 2018

Section 336 & Drones: Should it stay or should it go?

The Air Line Pilots Association and the Commercial Drone Alliance have called on Congress to repeal the Special Rule for Model Aircraft, codified in Section 336 of the FAA Modernization and Reform Act Of 2012. Section 336 prohibits the FAA from making any rule or regulation regarding a “model aircraft.” The issue is whether there is any logic or data to support enforcing safety regulations against 122,000 commercial drones but at the same time exempting 870,000 individuals who may own and operate multiple drones?

Repealing Section 336 would mean that the same rules, such as 14 CFR 107, would apply uniformly to all drones, regardless of why they are being flown. If the purpose of any FAA regulation is safety, the distinction between commercial and recreational seems unsupportable. The safety concerns and risks of flying an airplane from New York to Atlanta do not increase or decrease based on the reason for the trip, which seems to reflect the logic underlying Section 336.

The Academy of Model Aeronautics (“AMA”) has issued a response in support of Section 336, which also reappears in the proposed FAA Reauthorization Act of 2018. The AMA concedes some tweaking may be reasonable.

The AMA’s position is that the FAA does not have the resources to enforce regulations in the 870,000 + modeler community, that the modeling community needs FAA oversight because it has the AMA, and that regulation will stifle innovation. The core argument, however, is that modelers’ effect on the national airspace is negligible and that their operations take place under the auspices of the AMA at designated, remote, and safe locations far from other air traffic. In other words, the AMA has adequate mechanisms in place to ensure safety of recreational flying. The numbers, alone, seem to tell a different story.

Section 336 only applies to, and thus only exempts from full FAA regulation, model aircraft activities operated in accordance with a community-based set of safety guidelines and within the programming of nationwide community-based organization. Presently, the only such nationwide organization is the AMA. The AMA reports that it has 195,000 members worldwide. That means, at best, at least 670,000 U.S. drone owners who registered as flying only for recreational purposes are not even members of a community-based organization, much less participants in its programming. Carrying around a copy of the AMA Safety Code does not fulfill the requirements of Section 336 and even abiding by the safety rules does not mean that the modeler is participating in AMA programming.

Section 336 is ambiguous and vague. Participation in official AMA events would be within the programming of a nationwide community-based organization, but it is not clear what other activities might or might not be covered. Even the AMA concedes that clarity is needed.

Section 336 as presently written must go. That does not mean, however, that self-regulation is totally inappropriate. Further clarification of Section 336 may solve the problem. That Section 336 is problematic also does not mean that the national airspace must or should be ceded to commercial interests. The National Airspace System belongs to everyone and modelers have the same rights of access as anyone else. In fact, uniform regulation avoids creating the impression that one constituency has greater value or competency than any other.

As always, if you have questions about unmanned aircrafts, please contact us.

The views expressed in this article are solely the views of the author.

BFV Perspectives, Drones in Business, | Apr 25, 2018
Lydia M. Hilton
Lydia M. Hilton

Lydia Hilton knows bankruptcy – and drones. Having spent more than 25 years concentrating on real estate litigation and bankruptcy matters, today Lydia also applies that versatility to the highly entrepreneurial business opportunities within unmanned aircraft systems (UAS), a/k/a “drones.”