How High Can That Drone Fly?
Congress screwed up this simple bit of the law when it comes to keeping pilots and passengers safe. And I had it all wrong.
TLDR: Pilots think they are safe from drones when flying above 400 feet above the ground. They have been told that software and the regulations keep drones out of the airspace where we regularly fly. But ironically, those rules only apply to professional drone operators, not hobbyists. Congress needs to fix the rules. Pilots need to be aware of the threat.
A very familiar scene popped up on Twitter this week. It was a classic view of the Chicago skyline, from the unique perspective of flying along the shore.
It’s familiar because I’ve snapped this picture myself dozens of times. I’ve become accustomed to this fantastic view, cruising along at the lakefront, flying patrols, touring above the city with friends, or even while teaching students.
What bothered me was precisely how familiar the view in the drone photo was… the angles, the lighting, the altitude. It was all so suspiciously familiar.
It looked to me that the drone had taken the picture from the same altitude that I fly, (About 1,000 feet above the lake.) from a position inside of the charted VFR corridor small planes and tour helicopters fly through all the time. Uh oh.
So I asked…
Wait a tick. Hold on. Aren’t drone operators limited to only flying those things below 400 feet Above Ground Level? (AGL)
This is a problem. Drones are flying at pretty much the same altitude as fixed-wing aircraft, and even higher than the helicopters which typically operate at even lower altitudes. We often fly at 1,000 to 1,500 feet above the ground, which around here would be 1,600 to 2,100 above Mean Sea Level. (MSL is what our altimeters read out, which is why it is on the chart that way.)
It has been drilled into our heads in the pilot community that drones fly below 400 AGL. That, unless operators get a waiver, unless a DROTAM (Drone nOtice To Airmen) is issued, we can fly at comfortable and legal 1,000 feet AGL without really having to worry too much about randomly smashing into one of these things. We have our swath of the National Airspace System, (NAS) and the buzzing little robots have theirs. Cool. Or so I thought…
It Turns out, I was completely and utterly wrong.
The 2012 FAA Modernization and Reform Act, prohibits the agency from regulating model aircraft, including drones that weigh up to 55 pounds and flown for non-commercial purposes.
So something with a the mass of a bowling ball could easily be hovering in the path of my airplane, and nobody would be the wiser. It could all be completely legal.
Pilots have been citing part 107 of the Federal Regulations, the relatively new part of the law that deals specifically with Small Unmanned Aircraft Systems. (UAS) I thought the rules kept guys like our photographer friend above, from flying in the same airspace as people. Specifically, we pilots always seem to talk about §107.51(b) so here’s the full text.
§107.51 Operating limitations for small unmanned aircraft.
A remote pilot in command and the person manipulating the flight controls of the small unmanned aircraft system must comply with all of the following operating limitations when operating a small unmanned aircraft system:
(a) The groundspeed of the small unmanned aircraft may not exceed 87 knots (100 miles per hour).
(b) The altitude of the small unmanned aircraft cannot be higher than 400 feet above ground level, unless the small unmanned aircraft:
(1) Is flown within a 400-foot radius of a structure; and
(2) Does not fly higher than 400 feet above the structure’s immediate uppermost limit.
(c) The minimum flight visibility, as observed from the location of the control station must be no less than 3 statute miles. For purposes of this section, flight visibility means the average slant distance from the control station at which prominent unlighted objects may be seen and identified by day and prominent lighted objects may be seen and identified by night.
(d) The minimum distance of the small unmanned aircraft from clouds must be no less than:
(1) 500 feet below the cloud; and
(2) 2,000 feet horizontally from the cloud.
Except… you have to remember to look at section §107.1, and consider the type of operation your particular camera-laden robot happens to be participating in… again, here’s the full text of the regulation:
§107.1 Applicability.
(a) Except as provided in paragraph (b) of this section, this part applies to the registration, airman certification, and operation of civil small unmanned aircraft systems within the United States.
(b) This part does not apply to the following:
(1) Air carrier operations;
(2) Any aircraft subject to the provisions of part 101 of this chapter; or
(3) Any operation that a remote pilot in command elects to conduct pursuant to an exemption issued under section 333 of Public Law 112–95, unless otherwise specified in the exemption.
Wait… what? What does section 333 of Public Law 112–95 have to say about what altitude drones can fly? And why would I care?
OK, here we go again, here’s the full text… and you won’t even find the juicy bits until you scroll all the way down to Section 335…
SPECIAL RULE FOR MODEL AIRCRAFT.
(a) In General. — Notwithstanding any other provision of law relating
to the incorporation of unmanned aircraft systems into Federal Aviation
Administration plans and policies, including this subtitle, the
Administrator of the Federal Aviation Administration may not promulgate
any rule or regulation regarding a model aircraft, or an aircraft being
developed as a model aircraft, if —(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community-
based set of safety guidelines and within the programming of a
nationwide community-based organization;
(3) 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;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is
located at the airport)).
OK so NOW someplace in all that… it must tell me that drones flown for, “hobby or recreational use,” MUST be limited to 400 feet… right? Still, no.
Note the complete lack of any altitude limitation for flying recreationally in the above statute. There’s a lateral exclusion of 5 miles from any airport, but beyond that, there’s no limit to altitude, beyond keeping the gadget within line-of-sight of the unaided eye to be found in this law either.
OK, so while it’s complicated, the law must be written in a way to keep these things out navigable airspace… right?
So finally, I looked for what could qualify as a, “a community-based organization,” I found the Academy of Model Aeronautics. (AMA) and even found their Safety Handbook. (.pdf) Could I find a rule in there? Something to back up what has become common knowledge in the aviation community?
No joy. Here’s the closest thing I could find in the AMA guide…
Model Operations Near Airports
When within five (5) miles of an airport, AMA
members must notify the airport(s) before model
operations take place. Permanent flying locations,
such as chartered club flying sites, should establish a
mutually agreed-upon operating procedure to eliminate
the need for constant and repeated notification.
When within three (3) miles of an airport, model
aircraft should remain below 400 feet above the ground
unless there is notification or an agreement with
the airport that allows models to safely go higher.
Yikes. Nothing. Nada. Again, recreationally flown drones can fly as high as they please, outside the 5 mile exclusion zone according to the model aircraft rules…
Have a look at FAA Advisory Circular 107–2, it even includes the specific guidance that part 107 does not apply when the aircraft is flown strictly for hobby or recreational use.
So where does this leave us? It leaves us with this…
While we’re at it, part 107 as it is written today specifically waivers the requirement for drones operating within 30 miles of a Class B airport (Like Chicago O’hare.) to have a working transponder.
But drones flown by hobbyists are not considered to be operated under part 107, which means every drone flying recreationally within 30 miles of a major hub airport without prior permission is illegal. (The operator could telephone the appropriate radar facility for the Class B airspace and ask for permission to make the flight, but this is the only way to be compliant with § 91.215 today.) Remember, unless drones are squawking a transponder code, they are invisible to ATC radar, traffic information services, ADS-B, and traffic collision avoidance systems. (TCAS)
Congress and the FAA need to work together and fix the rules.
We’re going to keep seeing drone operators bypass the limits imposed by software and common sense. We’re going to have to stay vigilant in the cockpit for the threat of drones which are hard to spot visually, yet have no transponders, flying in navigable airspace for the fun of it.
