On June 18, 2014, the Federal Aviation Administration (FAA) issued a Notice of Interpretation (the Notice) regarding the special rule that exempts regulation of model aircraft under the FAA Modernization and Reform Act. Such interpretation was initially open for public comment through July 25, 2014 (see Husch Blackwell industry alert here) but was later extended through September 23, 2014 (see TMT Industry Insider article here).
On July 25, 2014, a group of professors from various public and private universities in the United States issued a letter to the FAA regarding the Notice that has gained a vast amount of publicity. The letter expresses the following five areas of concern: 1) the unprecedented expansion of FAA jurisdiction, 2) an unreasonably broad definition of the “Aircraft,” 3) unwarranted distinction between recreational and commercial model aircraft, 4) absences of stakeholder participation in the rulemaking process, and 5) the potential for conflicts with institutional safety policies and municipal ordinances. Additionally, the group asked the FAA to take the following four actions: 1) suspend the implementation of the Notice’s interpretation of the special rule, 2) focus rulemaking and enforcement efforts on persons who endanger manned aircraft, 3) introduce a new section of 14 CFR 101 (MOORED BALLOONS, KITES, AMATEUR ROCKETS AND UNMANNED FREE BALLOONS) to establish reasonable limits for model aircraft, and 4) respect what the group says is well-established precedent that the immediate reaches of airspace are vested in the landowner in all future rulemaking pertaining to model aircraft, unmanned aircraft, and other low-flying contrivances.
As of midnight yesterday, close to 30,000 comments have reportedly been received related to the Notice. With a quick scroll through the comments that are currently available for viewing at www.regulations.gov, it is clear that the professors who are today gaining media attention for their opposition to the FAA’s interpretation are not the only ones who do not agree with the FAA’s interpretation. We will continue to follow the developments of this rulemaking process to see what effect, if any, the comments may have on the FAA’s current position.