The scope of the aviation revolution that began in 1903 when the Wright brothers shocked the world with their first flight cannot be overstated: Since then, a host of engineers, entrepreneurs, and innovators have advanced the techniques of manned aviation, allowing pilots, passengers, and freight to move faster and more efficiently than ever before. Today, a century later, we are in the midst of a similar period of innovation in the form of Unmanned Aircraft Systems (UAS), commonly known as “drones.”[REF] UAS have seemingly limitless potential that includes delivering medical supplies to remote locations, expediting search and rescue operations, surveying private land and national borders, and delivering the Internet to far-flung locales.

Regrettably, a legislative and regulatory environment that treats two radically different technologies—large, manned aircraft and small, unmanned drones—as if they were the same is needlessly hampering the development of these and possibly countless other beneficial technologies. The Federal Aviation Administration (FAA) has attempted to shoehorn drones into an existing legal and regulatory framework developed for a wholly different industry. The result: a series of costly, burdensome, and irrational regulations premised on the notion that drones are aircraft, no different from a Boeing 747. These regulatory decrees have slowed, outright halted, and in some cases forced overseas the development of commercial drone technologies. Congress should rectify this by specifying that drones are not aircraft as defined in existing federal law (which was FAA policy for decades prior to 2015) and develop a new suite of drone-specific aviation laws.

The Law Defines “Aircraft”

Following the birth of powered flight in 1903, the federal government did not rush to regulate the budding aircraft industry. That began to change, however, when the Post Office, which had begun operating a federal airmail service in 1918, allowed private companies to bid on contracts and turned the service over to the winning bidders pursuant to the Air Mail Act of 1925.[REF] Then, in 1926, Congress enacted the Air Commerce Act[REF] to promote safety and reliability in the commercial aviation industry. A new aeronautics branch was created within the Commerce Department and was given regulatory authority over commercial aviation.[REF]Ultimately, the statute required the establishment of uniform air traffic control rules and, for interstate flights, a registration and certification system for both aircraft and pilots.[REF]

The Act also sets forth a single, nearly all-encompassing definition of what constitutes an aircraft: “any contrivance, now known or hereafter invented, used or designed for navigation or flight in the air, except a parachute or other contrivance designed for such navigation but used primarily as safety equipment.”[REF] The modern definition of the term has hardly changed in a century,[REF] with the most significant modification being the striking of the safety equipment clause.

With such a broad definition, Congress may have been trying to avoid having to write a new statute for every innovation in the field of aviation. At the time, such innovations were frequent; only two decades before, fixed-wing aircraft had yet to be invented, and two decades later, an entirely new breed of flying machine, the helicopter, was just becoming practical. The advantage to Congress’s approach was efficiency, but the dangers of a single, all-encompassing definition are overinclusion, vagueness, and arbitrary enforcement, particularly when laws referencing that term carry criminal penalties that can then be applied to individuals in situations not originally intended or contemplated by lawmakers. That is the problem facing drone operators today.

Drones: A Leap Beyond Aircraft

For decades, remotely operated model aircraft—the predecessor to what we now call drones—were understood to be beyond the scope of federal aviation regulators’ authority. The FAA’s own single-page advisory circular that guided unmanned model aircraft operating standards from 1981 to 2015 left drones out of federal aviation laws.[REF] Now regulators at the FAA are attempting to force drones into a legal and regulatory framework crafted over the course of a century for the purpose of regulating manned aviation. Recently, the FAA asserted that drones fall within the statutory definition of aircraft and, therefore, within its regulatory purview.[REF] FAA officials have indicated at various times that drones are subject to all federal aircraft-related laws[REF] as well as to the aircraft provisions contained within the Federal Aviation Regulations.[REF]

This approach makes little sense because drones differ drastically from their larger, manned cousins. For instance, while a jet aircraft may have a wingspan in excess of 200 feet,[REF] the most popular models of quadcopters currently on the market are roughly only a foot wide at their widest point.[REF] Traditional aircraft are designed to cruise as high as 35,000 feet and in many cases have a range sufficient to cross continents or oceans; drones, limited by the capacity of onboard batteries and the range of their radio control signals, typically can fly no more than a few hundred feet and operate for only a few minutes before their power fails.[REF] Finally, drones do not carry human occupants as either passengers or crew. Human involvement in their flight is restricted to remote control of the vehicle.

As a result of these fundamental differences, it should not be assumed that current aviation laws and regulations can or should be applied to drones. The vast majority of federal aviation laws and regulations were written to apply specifically to manned aircraft.[REF]

Oddities in Federal Aircraft Law as Applied to Drones

A number of oddities arise when existing federal law governing aircraft is applied to consumer drones.

Registry of Drone Owners. The first step in the FAA’s recent push to regulate the nascent drone industry was to create a recreational drone owners’ registry. The FAA claimed it had the authority to do this pursuant to 49 USC § 44101(a), which specifies that “a person may operate an aircraft only when the aircraft is registered, subject to limited exceptions for military aircraft or short periods following transfer of ownership.” Careful readers will note that the FAA has statutory authority to require the registration of aircraft, not aircraft owners, yet the FAA’s registry requires individuals to register themselves as owners. Failure to register as the owner of a recreational drone may result in up to three years in prison and civil and criminal fines of over $277,000.

The FAA’s own drone task force report admits that the registration scheme for aircraft is ill-fitted to small UAS (sUAS) and that the statute’s penalties are disproportionate to the offense of not registering as an sUAS operator. Noting that Congress created “registration-related penalties…to address and deter suspected drug traffickers and tax evaders who failed to register aircraft as part of larger nefarious schemes,” the report observes that anyone “flying an sUAS, including consumers and juveniles, may now find themselves inadvertently in violation of this new system.”[REF] The registration scheme was concocted in contravention of the plain meaning of the aircraft registration statute, decades of consistent federal policy explicitly exempting small model aircraft from federal aviation rules, and a federal statute prohibiting the FAA from creating new regulations pertaining to recreational drones.

Policing Drone Owners’ Backyards. Under 49 USC § 1132, the National Transportation Safety Board (NTSB) is required to conduct an investigation into “each accident involving civil aircraft.” The NTSB is also authorized to “prescribe regulations governing the notification and reporting of accidents involving civil aircraft.[REF]”

If a drone is crashed, 49 USC § 1155 applies a civil fine of up to $1,000 each day a person is in violation of the regulations governing the notification and reporting of accidents pursuant to § 1132(b) and also makes it a crime, subject to a potential fine and prison sentence of up to 10 years, when anyone “knowingly and without authority removes, conceals, or withholds a part of a civil aircraft involved in an accident, or property on the aircraft at the time of the accident.” Therefore, read literally, if an operator crashed a drone in his own backyard simply because he had not yet mastered the controls and then removed it without notifying the authorities, he could be prosecuted and subjected to substantial fines and a lengthy prison sentence.

Consider, for example, 18 USC § 32 on “destruction of aircraft or aircraft facilities,” which makes it a crime when someone:

…willfully-

(1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction (see 49 USC 46501 below) of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce;

(2) places or causes to be placed a destructive device or substance in, upon, or in proximity to, or otherwise makes or causes to be made unworkable or unusable or hazardous to work or use, any such aircraft, or any part or other materials used or intended to be used in connection with the operation of such aircraft, if such placing or causing to be placed or such making or causing to be made is likely to endanger the safety of any such aircraft.

An administrative law judge wrote that it is a “risible argument” to suggest that recreational drones “could subject the ‘operator’” to the criminal penalties of federal statutes that concern aircraft. No doubt, someone, somewhere will “willfully” hurl a rock at a drone, spray one with a hose, or do something that damages or destroys it, thus violating this federal criminal law. Moreover, the judge noted, if this law applies to half-pound drones, how can courts logically exempt “paper aircraft, or a toy balsa wood glider” from a formalistic interpretation of the FAA’s definition of aircraft?[REF] The agency’s novel interpretation of the law would put children playing in their own backyard at risk of disproportionate punishment, including prison time, for playing with a drone, a paper airplane, or a balsa wood glider.[REF]

Laser Pointers. Consider too 18 USC § 39A, which makes it a federal crime, punishable by a fine or up to five years’ imprisonment, knowingly to aim “the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or at the flight path of such an aircraft.” In the context of manned aviation, this is clearly a serious and dangerous act. The federal felony status of laser strikes is justified because they temporarily blind pilots,[REF] thereby endangering the lives of all aboard.

Recently, a 21-year-old faced the statutory maximum $250,000 criminal fine and five years’ imprisonment for each of three counts of aiming a laser at an aircraft,[REF]but should those penalties apply for aiming a laser pointer at a half-pound drone? What harm occurs? The drone has neither a pilot to blind nor passengers to endanger. If the FAA’s interpretation of the breadth of the term “aircraft” is allowed to stand, federal criminal liability could attach to entirely harmless conduct.

Document Display. If drone operators wish to comply fully with federal law on aircraft, they must adhere to such requirements as displaying a copy of the registration, airworthiness certificate, and other official documents “within” the aircraft “at the cabin or cockpit entrance so that it is legible to passengers or crew.” [REF]Of course, those documents cannot fit within a drone, for just as drones have no pilots, passengers, or crew, neither do they have cockpits or cabins.

A Catch-22. Further, there is a conflict between existing regulations that ban drones from flying at altitudes higher than 400 feet[REF] and the mandate that aircraft be flown no lower than the minimum safe altitude of flight, which is generally set at 500 feet.[REF] The national airspace, which lies above this threshold, was reserved for manned aviation when it was created in 1926. While compliance with both directives is impossible, a good-faith effort to comply with the mandate for aircraft could put drones in the direct path of passenger planes.

What’s in a Name?

These oddities illustrate why it is crucial for drone operators, the drone industry, and the public that the government provide minimal and sensible regulations that respect the fundamental reality that drones and aircraft are not the same thing. As drone hobbyist John Taylor, who has filed a lawsuit in federal court in the District of Columbia challenging the FAA’s drone regulations as arbitrary and capricious, argues:

By statute, an “aircraft” is, “…any contrivance invented, used, or designed to navigate, or fly in, the air.” 49 U.S.C. § 40102(a)(6). The statute provides that an aircraft is something that is ultimately “used…to…fly…” and not simply something that flies. The distinction is significant. An aircraft is a tool of manned flight, used, by a person, to achieve that person’s flight.[REF]

This definition is not consistent with the reality of small drones, and there is no reason for Congress to allow the FAA to disregard reality. Drones should not be considered aircraft for purposes of all federal law.

Thankfully for the public, the Supreme Court of the United States has indicated that the common perception of what a regulated thing actually is can be important.[REF] In 1931, for example, the Court held in McBoyle v. United States that an airplane was not a motor vehicle for purposes of the National Motor Vehicle Theft Act, because although “etymologically it is possible” for “motor vehicle” to mean “airplane,” “in everyday speech, ‘vehicle’ calls up the picture of a thing moving on land” and not in the air.[REF] In language as relevant to drones today as it was to airplanes in 1931, the late Justice Oliver Wendell Holmes wrote:

When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used. [REF]

That line of reasoning speaks to how courts—not necessarily federal agency rulemakers—can and should approach a statute. The FAA ought to heed that guidance, however, and avoid extending the scope of statutory terms beyond their generally understood meaning.

If McBoyle were only a one-off, administrative rulemakers would not need to bother with “everyday speech” as an indication of their rules’ potential effects in the real world, but the Supreme Court seems to have doubled down on the idea that “everyday speech” matters. In a recent case, the Court concluded that while a fish is certainly a tangible object, it is not the type of tangible object that Congress had in mind when it enacted a statute to prohibit destroying certain delineated types of objects used for information and data storage.[REF] In another case, the Court found that a certain type of boathouse—one with a rectangular bottom, an unraked hull, and no propulsion or steering mechanisms but nevertheless with the ability to float like any other vessel—was not the type of vessel that is subject to admiralty jurisdiction, even though some courts had said that admiralty jurisdiction extends to “anything that floats.”[REF]

Similarly, applying federal aircraft laws to drones simply does not make sense in light of everyday speech or conceptions about drones.[REF] The term “aircraft” does not evoke the image of a quadcopter or other type of small drone any more than the word “quadcopter” evokes the image of a Boeing 747. Both machines fly, but they belong to distinct categories of machines; they are perceived differently precisely because they are physically and operationally different from one another.

There is little reason to suspect that a lay person would know or have any reason to believe that aircraft statutes with criminal penalties would apply to the operation of a drone. The FAA’s current approach to drone regulation therefore puts the public at risk of “arbitrary and discriminatory enforcement” of law and will serve only to confuse and “trap the innocent.”[REF]

What Congress Should Do

The FAA, anxious to expand its regulatory authority into the recreational drone space, has twisted the statutory definition of the term “aircraft” to enable it to circumvent the clear will of Congress as expressed in the 2012 FAA Modernization and Reform Act, which prohibited the promulgation of new regulations in the hobby drone space.[REF] By claiming that it had always considered drones and similar model aircraft to be aircraft for the purposes of federal law but had exempted them from enforcement merely as a matter of agency discretion, the FAA was able to make the dubious claim that its drone registry was not in fact a new regulation. In doing so, the agency is trying to sidestep the prohibitions of Congress’s 2012 act and has expanded the scope of federal civil and criminal liability across an array of drone operations.

The FAA’s creative wordsmithing is possible only because the law has not kept pace with innovations in aviation and an overly broad statutory definition of the term “aircraft,” written in a vastly different era, has been left to linger on the books. By default, that anachronistic definition has allowed the FAA to run amok, writing and in some cases even promulgating inherently irrational rules and applying criminal laws in ways never intended by lawmakers and not supported by the text of the statutes. This is a problem that only Congress can remedy.

In light of this situation, Congress should consider taking the following steps:

• Redefine the term “aircraft” in 49 U.S.C. § 40102 and specify that it refers only to manned aircraft in order to ensure that all federal laws applying to aircraft and all regulations promulgated pursuant to them apply only to manned aircraft.
• Create a new statutory term for unmanned aircraft that is clearly distinct from the general “aircraft” term. Language defining unmanned aircraft has already been adopted by Congress in the 2012 FAA Modernization and Reform Act; that language could serve as a template for a new statutory term to cover the range of contrivances invented for the purpose of aerial navigation but incapable of carrying human occupants. Such a definition could incorporate various weight and performance characteristics such that small unmanned craft are not treated the same as larger and higher-longer-faster-farther-flying manned aircraft.
• Examine the code of aviation law and, on a case-by-case basis, determine which existing laws should be applied to drones and what new drone-specific laws should be crafted and adjust any existing criminal sanctions to better reflect the status of the crime in an unmanned-aircraft context.
• Restrict the FAA’s ability to regulate unmanned aircraft activity that does not take place within the national airspace or within a reasonable radius of an airport or sensitive military or national security–related site. Congress should also consider codifying the exact altitude at which the national airspace begins in order to prevent the FAA from redefining the term and abrogating property rights in, and local and state control of, low-altitude, currently unregulated airspace.

Conclusion

In 1926, Congress crafted the core of a federal legal and regulatory scheme that endured for a century. Recent advances in aviation technology, however, have outpaced the law, and regulators have responded by stretching the text of our aircraft statutes beyond their breaking point. Drones promise a revolution in sectors of the economy as disparate as parcel delivery and disaster relief, with untold and as-yet-undeveloped benefits for society. Shoehorning this 21st century revolution into a statutory and regulatory framework developed for a wholly different technology is not a sensible way to foster continued development and innovation.

Congress should rein in the FAA and redefine the term “aircraft” to prevent the recent excesses and overreaches of the FAA from happening in the future. Done correctly, such a move could do for drones what the Air Commerce Act did for manned aviation and could endure as the cornerstone of American drone law.