Drone Operator Near McCarran Airport Avoids Colliding with Plane, But Is Less Likely to Avoid Enforcement

Footage emerged on Friday of an unmanned aircraft system (UAS) operating directly above a commercial airplane making its descent into McCarran Airport in Las Vegas.  A local news outlet reported that the Federal Aviation Administration (FAA) is currently investigating the incident, which raises serious questions under both federal and state law.

Although details are still emerging about the nature of the operations, it seems certain that the stunt violated FAA regulations.  The only questions appear to be which ones, and how many?

Unless you are a public safety user, in the United States there are only two ways to lawfully fly a drone like the one operating in the video without special approvals from the FAA. The first is under Part 107, which applies to commercial and non-recreational uses.  The other is Part 101, which applies to recreational users who meet the criteria outlined in Section 336 of the 2012 FAA Modernization and Reform Act, which carves out recreational UAS operators from the Act’s mandate that the Secretary of Transportation integrate UAS into the national airspace system.  Whichever applies to the recent stunt near McCarran Airport, there appear to be numerous FAA rule violations.

The McCarran UAS under Part 107

Part 107 has cleared the path for a lot of new and innovative uses for UAS, but still imposes strict limits on operations—and several of those appear to have been violated here.  First, the UAS likely violated Part 107’s altitude and airspace restrictions.  UAS operating under Part 107 may not be operated higher than 400 feet above ground level, yet the UAS filming the video is well above the aircraft making its descent and thus may be above 400 feet.  Further, commercial UAS are prohibited from operating in airspace other than Class G without prior approval from air traffic control (ATC).  McCarran Airport is a Class B airport and is therefore surrounded by Class B airspace, which is reserved for the busiest airports designed to ensure the safety of aircraft flying into and out of the airport.  The UAS in question reportedly took off from Whitney Park, a public park located just over 5 miles from the airport.  To the extent the UAS operated within Class B airspace—which seems likely because the video shows it operating above a descending aircraft—the operation would have violated this provision unless the operator obtained prior ATC approval.  Part 107 also requires commercial UAS operators to register the aircraft and obtain a UAS pilot certification from the FAA; it’s not clear whether either of those happened here. 

Even if the operations fell within the proper altitude and airspace and the operators obtained the requisite certifications, they almost certainly violated Part 107’s proscriptions on dangerous operations.  Specifically, Part 107 prohibits operating UAS in a manner that “interferes with operations and traffic patterns at any airport” or in “a careless or reckless manner so as to endanger the life or property of another.”  The regulations also require UAS operators to yield the right-of-way to all aircraft, and preclude operators from “operat[ing] a small [UAS] so close to another aircraft as to create a collision hazard.”  These are fact-specific questions, and it will be up to the FAA to determine whether the video represents evidence of a violation—but it certainly looks like it.

The McCarran UAS under Part 101

The other way to fly a drone in the United States is pursuant to the FAA’s Special Rule for Model Aircraft, which creates a narrow exception that allows recreational users to fly drones (and other model aircraft) free of the Part 107 operating restrictions so long as they abide by a strict set of requirements. Even if the operator of this particular UAS intended to operate under the Special Rule for Model Aircraft, it appears several of those restrictions were violated.

Included in the criteria, which originated in Section 336 of the 2012 FAA Modernization and Reform Act and are now codified in Part 101 of the FAA’s Rules, are that the model aircraft is operated “in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization.”  In practice, this legalese means that to escape Part 107, recreational users must abide by the rules of the Academy of Model Aeronautics, (AMA), as this is the only community-based organization that currently qualifies under the statute.  The AMA’s Model Aircraft Safety Code provides that model aircraft pilots must yield the right of way to all human-carrying aircraft and must not interfere with operations and traffic patterns at any airport, thus mirroring Part 107 with regard to these operational restrictions.  Another Section 336 requirement is that the model aircraft is operated “in a manner that does not interfere with and gives way to any manned aircraft,” which is certainly far from clear with respect to the McCarran UAS.  To the extent a drone doesn’t satisfy one or more of the Section 336 criteria, it does not fall under the Special Rule for Model Aircraft and is therefore subject to the more restrictive Part 107.

However, even if the UAS at McCarran satisfies the Section 336 criteria for model aircraft, it is still subject to the proscription in Part 101 that model UAS may not be operated “so as to endanger the safety of the national airspace system.”  In addition, like commercial operators, model UAS operators are required to register their aircraft with the FAA—although this requirement was invalidated by the D.C. Circuit last year, Congress recently reinstated it in the National Defense Authorization Act for Fiscal Year 2018.

Interestingly, while the prohibitions on reckless operation in the AMA safety code and Part 101 are almost certainly a problem for the McCarran UAS, proximity to the airport may not have been an issue to the extent the flight was recreational.  Community-based guidelines require recreational operators to give notice for flights within 5 statute miles of an airport.  According to the “Know Before You Fly” airspace map that the FAA (in conjunction with the AMA and the Association for Unmanned Vehicle Systems International (AUVSI)) provides to assist model UAS operators in determining where they can operate, Whitney Park (shown as a white pin drop icon inside a black circle in the map below) falls just outside the proscribed area.

Of course, Whitney Park was only the takeoff location: it is possible that in flight the UAS drifted closer to the airport, leading to yet another violation of model aircraft safety standards unless the operator obtained prior ATC approval.

Next Steps: Potential Enforcement and the Question of Identification

What happens next is up to the FAA and local law enforcement.  The FAA has the authority to enforce its regulations through the imposition of substantial monetary penalties.  In addition, UAS operators may be subject to criminal penalties including significant fines or even imprisonment.  The FAA has attempted to impose penalties against a reckless UAS operator in only one prior case, which pre-dated Part 107 and ultimately settled, so it’s difficult to know what the agency’s next steps may be.  However, the high profile nature of this case suggests that the FAA might take it very seriously.  If the FAA does pursue enforcement and the operator purports to be a modeler, it will be interesting to see whether the agency proceeds under Part 101 or Part 107.

The operator of the McCarran UAS also may face penalties under state law.  For instance, Nevada law makes it a gross misdemeanor to operate aircraft “in a careless or reckless manner so as to endanger the life or property of another.”  Imposition of state law penalties may raise preemption issues, though, because the FAA occupies the field of aviation safety.

An important question is whether regulators or local law enforcement will be able to identify the operator of the drone.  Although commercial and hobbyist UAS users are required to register their aircraft, and the FAA has plans to develop rules requiring technology that will allow UAS to be identified and tracked in flight (Remote ID),  the task of identifying the aircraft and operator is quite difficult when the only evidence is a video of operations conducted on some prior date.

Although no one was hurt this time, this incident should serve as a reminder to all UAS operators that safe operation requires staying far away from descending commercial airliners, and that FAA regulations and model aircraft safety codes should be strictly observed.  It also highlights the need for better technological capabilities to identify rogue UAS in real time, something that implementation of the FAA’s anticipated Remote ID rules would help facilitate.

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