The FAA Now Says Flying a Drone in Most Major Cities Is Illegal

The Federal Aviation Administration has essentially just suggested you can’t fly a drone anywhere remotely near a large airport for any reason without permission from an air traffic controller without risking a fine—a radical 180 degree shift from decades of nonenforcement.

As we noted yesterday, the FAA is trying to fine a drone hobbyist in New York City—well, we’ve gotten our hands on the details (embedded below), and the statute used to go after him could be used to ban the drone hobby in much of the country.

The FAA confirmed that they are indeed trying to fine David Zablidowsky for crashing his drone in midtown Manhattan last fall and are levying a $2,200 fine against him for trying to “operate an aircraft in a careless or reckless manner so as to endanger the life or property of another,” and for operating an aircraft without receiving clearance from an air traffic controller.

The first part of that fine is the same one the FAA tried to use against Raphael Pirker—an argument they lost in court. But the second regulation is a new one, and one that the agency has specifically said does not apply to hobby pilots, even two months after the September 11, 2001 attacks. Until now, apparently. Here’s the wording of the fine:

“You violated the following section(s) of the Federal Aviation Regulations:

    1) Section 91.13(a), which states that no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.

    2) Section 91.131(a)(1), which states that no person may operate an aircraft within a Class B airspace area except in compliance with 91.129 and the following rules: The operator must receive an ATC clearance from the ATC facility having jurisdiction for that area before operating an aircraft in that area.”

That second bit, if upheld by a judge (which, given that a judge has already ruled that drones aren’t ‘aircraft,’ it almost certainly won’t), would effectively ban the drone hobby in major cities. Class B airspace, according to the FAA, is the airspace from the “surface to 10,000 feet surrounding the nation's busiest airports.” But this doesn’t just mean that the FAA thinks you can’t fly a drone, say, next to LaGuardia airport (though it does suggest that), but that you can’t fly a drone—even above your shoelaces—within many miles of one. Midtown Manhattan is more than five miles from LaGuardia, for instance, and Zablidowsky was still cited. There are dozens of Class B airports in the United States. The definition of "Class B" varies for each airport but often extends many miles in each direction.

Yes, aiports in many major cities are far outside of downtown—but it takes a bit of an expert to know exactly where Class B airspace ends and less regulated airspace begins. Is that something the average hobbyist is going to want to risk?

Brendan Schulman, the lawyer who fought on Pirker's behalf, says that the proposed fine is unprecedented.

“This proposed fine has serious implications for recreational model aircraft operators, because it asserts for the first time in the 90-year history of the hobby that a regulation concerning air traffic control might apply to children’s toys,” he said.

Of course, the FAA isn’t going to go after people who are operating safely a couple feet in the air. But they think they have the authority to. It’s interesting then, that in November 2001, the FAA sent a letter to air traffic controllers suggesting that “model aircraft do not require compliance with Federal Aviation Regulations. Model aircraft do not require a type certificate, airworthiness certificate, or registration. Federal Aviation Regulations do not apply to them … model aircraft may operate in controlled airspace without air traffic control authorization, transponders, or altitude reporting equipment.”

The FAA clearly does not believe that letter applies anymore.

Zablidowsky CP Ltr by Jason Koebler