No matter how you feel about it, the FAA is rolling out new recreational drone rules. In late 2018, Congress passed the reauthorization of the FAA Modernization and Reform Act. This law not only laid out the requirements for flying a drone recreationally, it also repealed the Special Rule for Model Aircraft (Section 336). Because the rules in Section 336 have been relied upon by hobbyist drone pilots for some time, the repeal of this section was not a small change. In its place, Congress created Section 349, which lays out the new rules for flying your drone recreationally.
In May of 2019, an FAA memorandum was scheduled to be released (even though it had been leaked on social media almost a week earlier, oops.) And while the memorandum itself does not have the force of law, it is the FAA’s first real step in providing the public with information on how it will begin to enforce Section 349. Just know, even though the memorandum does not have the force of law, the 2018 Reauthorization is law, so the FAA is beginning to enforce it. The FAA will be coming up with regulations to enforce the law and this is the first step.
So, here’s the thing. You’re either going to have to comply with these new rules or get your Part 107 license and comply with those rules. There is no third option.
My full disclaimer is available here, but this article is not intended to be legal advice and is for educational or informational purposes only.
Sidenote: Brief history of model aircraft rules
I just want to take a quick step back. As far back as 1981, the FAA released an “Advisory Circular” that provided guidance for people flying model aircraft. So remote controlled aircraft aren’t a new problem for the FAA. And while this circular was just guidance, the rules were pretty reasonable and were adopted throughout the model aircraft community.
Then in 2012, when drones were just coming onto the scene in a big way, the FAA Modernization and Reform Act of 2012 was passed. This law included Section 336, which basically said that the FAA couldn’t regulate model aircraft and made the distinction between model aircraft flown for recreational and those flown for commercial purposes. Remember Section 333 exemptions for commercial drone flights? This was part of the 2012 law.
The reauthorization that was passed in 2018 gets rid of Section 336 altogether. In its place is Section 349. Section 349 appears to be much more inclusive, now including all model aircraft in the definition of an unmanned aircraft. Importantly, Section 349 applies to recreational flyers.
So, how does the FAA define recreational?
The FAA’s website says that “you are considered a recreational user if you fly your drone for fun.” Sounds simple enough.
If you wanted to clarify that even a little bit further, you could look on the Know Before You Fly website, which was created by the Academy of Model Aeronautics (AMA) in partnership with the FAA. Know Before You Fly says that recreational flying “is the operation of an unmanned aircraft for personal interests and enjoyment.”
Again, sounds pretty simple. But just to be clear, they give a couple examples as well. If you were flying to take pictures for your own personal use, this would be recreational. If you used those same pictures and sold them to someone else, you’d need a Part 107 license for that. I know this sounds pretty cut and dry, but you’ be surprised the ways that people try and rationalize things.
If you’re looking to get your commercial license, check out our Ultimate Part 107 Study Guide.
One other thing, when I first started flying drones commercially, I came across a number of other commercial drone pilots who were claiming to provide their drone services for free and simply charging for photographs. If this is you, I’d be super wary of this kind of arrangement. Just be safe and get your drone license. Doing this, or any other in-kind or barter type arrangement sounds like you’re just asking for trouble.
What are the new recreational drone rules?
Well, once you’ve decided you’re flying for fun, the new Section 349 lays out eight rules. While you can check out the full text of the law here (you want §44809, which is stuck somewhere right in the middle), I’ll give you the basic breakdown of the new rules because I know not everyone enjoys combing through federal statutes.
1. You must only fly your drone for recreational purposes.
If you’re unsure about this, read the first section above or check out the Know Before You Fly site.
2. Your drone must be “operated in accordance with or within the programming of a community-based organization’s set of safety guidelines.”
This rule actually goes on to say that the “community-based guidelines” are developed in coordination with the FAA. Basically, you should either be a part of a group like the AMA, or fly your drone in line with their rules. Here is a link to the AMA Safety Code from January 1, 2018. The AMA Safety Code doesn’t seem like anything crazy (except for the fact that there are apparently “turbine-powered model aircraft,” which sounds awesome!). Because this rule allows recreational drone flights “with or within” (my emphasis) a community-based organization’s guidelines, at this point it does not seem like you will need to necessarily join a group like the AMA (though you certainly could).
We will have to see how the FAA decides to enforce this, but for now it just sounds like you will need to fly your drone safely and responsibly. Make sure you know what community based rules you are following in case you are ever asked by an FAA inspector or someone with law enforcement.
3. Fly your drone in visual line of sight or with a visual observer that is in direct communication with you.
So, this sounds like you’ll be able to use FPV goggles so long as you have a visual observer. This Is a really great clarification, because some hobbyist pilots have been between a rock and a hard place when it comes to current rules.
Also, I’m part of a drone group on facebook where one member is always posting “personal best” records of how far away they fly their Mavic. Uh, I’m pretty sure 1.5 miles away is WAY beyond line of sight. Help us all out here and don’t do this kind of stuff.
4. Fly your drone in a way “that does not interfere with and gives way to any manned aircraft.”
This one is pretty reasonable, and presumably something you’re already doing. If you’re not, you should be.
5. You’ll need to get authorization to fly within an airport’s airspace.
While this one might seem a bit annoying, it could actually just be a lot easier than the current situation, where hobbyists are required to inform the tower at the airport of their flight. I’ve heard numerous stories where the person at the airport being informed really doesn’t know what to do with the notification. I live inside Class B airspace and while I have my Part 107 license, I prefer to get authorization via the LAANC system. It only takes a few second to get authorization. This system will presumably be made available to recreational drone pilots as well. The FAA provides a map, which shows you airspace grids. Each section of the grid tells you the altitude that you can get approval for automatically. If the grid is green, it is available for LAANC approval. If it is red, LAANC approval is not available there yet.
While the LAANC system has been rolled out nationwide, it is my understanding that the use of this system is really up to the airports (or has been until now). Maybe this will change, but I’d assume since you are no longer supposed to be calling the tower to notify, the FAA will want more airports to use the LAANC system. Maybe it will even require it?
Temporarily though, you will only be able to fly your drone recreationally at the flying fields that the FAA has specified on this map. This is so the FAA can get the LAANC system updated for recreational drone pilots. The FAA has also provided a way for organizations to establish new fixed flying fields. At this point, we just don’t know how long it will be until LAANC is ready for recreational pilots, so sending an e-mail to the FAA might not be a bad idea if you’re looking to create a fixed flying field.
6. Don’t fly “more than 400 feet above ground level.”
So, this makes the 1981 recommendation a law. Stay below 400 feet AGL. Remember all of those posts you see where they look like they’re taken from 2,000 feet? I’d assume that’s a really great way to get on the FAA’s radar. Stay below 400 feet AGL or find a buddy with a helicopter for your epic shot.
7. You’ll need to pass “an online aeronautical knowledge and safety test and carry proof of passage”
This one is likely to cause some heartburn, but we all get the desire to help the hobbyist drone community not look so bad, right?
There was this guy, who FLEW A DRONE ONTO THE WHITE HOUSE LAWN.
Or the drone sighting that caused Frankfurt Airport to cancel 143 flights…ugh.
Here’s the thing though, will requiring a test make these things less likely to happen? Somehow I doubt it. The people that are likely to pass the required test probably wouldn’t be the same ones flying their drone near the White House. The other thing is, it’s going to take some time for the FAA to develop and release this test. But the good news here is that the test for recreational drone pilots is online. Once you pass, you’ll need to carry proof that you passed when flying your drone.
We’ll keep you updated on the development and release of this test and what it looks like.
8. Your drone should be registered and marked.
This one is sort of a re-hash of the previous registration requirement that was thrown out because it violated Section 336. But remember, Section 336 was repealed, so this version of the registration may stand. (Let’s see if anyone files suit first.) Also, put your license plate number on your drone. For real, put a sticker on your drone with your registration number. It is required.
The new rules aren’t going anywhere
While we are just now at the beginning of how these new rules will pan out, what I just laid out are the basics for your average recreational drone pilot. The new law also allows drone use by colleges in education and research to be considered “recreational”, which could lead to some really cool new uses or ways to learn about drones.
The law also requires the FAA to lay out rules for creating new community based organizations. I’m sure there will be a number of online groups that would love to solidify their standing by creating a recognized community based group.
No matter what, the new recreational drone rules aren’t going anywhere so we should start to get used to the new normal. Let me know if you have any questions.
Featured image by Nathan Gonthier on Unsplash.
