FAA enforcement also means denying legal flights

Flying by the rules is no accident.  It often takes significant due diligence to ensure the location, time, and parameters of each flight adhere to FAA regulations along with any State or local prohibitions.  This is true without regards for the type of flight (hobbyist or Part 107).  Critical elements include looking for Temporary Flight Restrictions (TFRs), Notice to Airmen (NOTAMs), review of Part 101 or Part 107 regulations, and checking both the airspace and local ordinances.  Alas, even after all that study you may be grounded by an authority that doesn’t know the rules or makes up their own.  What is extremely aggravating is when that authority is an FAA representative tasked with ensuring regulatory compliance.

 

Balloons Over Bavarian Inn is an annual event in Frankenmuth, Michigan.  The location is idea for scenic aerials of hot air balloons traversing in Class G airspace over lakes and fields alongside a small town of predominantly German architecture.  Organizers of the event were approached by a group of UAS operators interested to safely fly at a distance and capture images.  It would be an event to prove that UAS and hot air balloons could safely co-exist with proper communication and coordination.  The UAS operators attended the flight briefing alongside the hot air balloon pilots and distance parameters were established to ensure safety.  Then the FAA stepped in.

 

 

As with most hot air balloon festivals an area Flight Safety District Office (FSDO) employee of the FAA attends.  Balloons Over Bavarian Inn was no different; the FSDO officer was on hand to perform ramp checks and take part in the safety briefing.  With all in order, the FSDO then turned their attention to the UAS operators that attended the pre-flight briefing and things went completely awry.

 

The FSDO dashed the intent of the UAS operators by exclaiming they were not allowed to fly.  He cited that the balloon organization’s waiver specifically mandated that no UAS were to be flown.  Despite being informed that there was no TFR, the FSDO was insistent that any UAS operators who flew would be held in violation of FAA regulations.  Not wishing to draw the ire of this official the UAS operators lamented as they watched the balloons launch in the stable air of the sunrise left thinking of the colorful images they might have otherwise been able to grab from an aerial position.

It should be noted once again that there was no TFR for the event.  Instead there were only a NOTAM that were issued.  There text is here:

!MBS 05/102 MBS AIRSPACE HOT AIR BALLOON WI AN AREA DEFINED AS 10NM RADIUS OF 431921N0834409W (1NM WNW 66G) SFC-7000FT DLY 1001-1400 1905251001-1905271400
The event coordinator’s waiver that the FSDO based his determination on was specific only to the balloonists and organizers, not giving them exemption to fly UAS for demonstration or aerial performance as part of their programming.  UAS operations not associated with the event were legitimately able to fly following FAA Part 101 and Part 107 regulations.

 

This was confirmed a few days after the event as the drone operators continued to pursue explanation from the FSDO for his denial of their intended flights.  The following text is taken from the letter responding to the further inquiry of the legality.

As I mentioned on our phone call earlier today, the FAA’s National Aviation Event Specialists, part of General Aviation & Commercial Technical Operations Branch, AFS-840, have weighed in on the intent of the standard provision concerning UAS operations that accompanies most balloon events.

AFS-840 confirmed this provision applies to demonstrations or performances of UAS only. They stated that operation of UAS as nonparticipant aircraft may be conducted in accordance with all applicable regulations provided the event is not covered by a Temporary Flight Restriction.

UAS operators are encouraged to reach out to the event’s responsible person (“balloonmeister”) prior to the planned operation and preferably prior to the pilot briefing to allow for thorough briefing of the event participants.

If you have any further questions, please feel free to contact me.

Regards,

Ryan D. Johnson

Aviation Safety

Principal Operations Inspector

Grand Rapids FSDO

 

Some may be pondering – What’s the big deal?  After all, so what if a couple of guys couldn’t fly because of a simple mistake in interpretation?  People make mistakes and maybe one could even argue that the mistake was being made on the side of safety.  Consider this instead…  This isn’t an isolated incident.  UAS operators are experiencing this much more frequently across the nation.  The frequency of reports coming in from operators denied the ability to legally fly has been steadily increasing.  Misinformed or uniformed security guards, local law enforcement, or other FSDO officers are routinely disrupting or preventing operations that have the proper authorizations and validity.  In some cases we are seeing UAS operators wrongfully detained, illegally having their equipment confiscated, or even being physically assaulted.

 

This trend is very likely to continue as the FAA begins to shift, as directed by Congress to do so in the language of the 2018 FAA Modernization and Reform Act (FMRA), from education to enforcement.  Relying upon local law enforcement to determine whether or not a drone operator is legally flying means expecting the officers to be able to read FAA sectional charts, be able to appropriately determine height of a UAS in flight from their position on the ground with no view of the UAS’ telemetry, determine whether the UAS is beyond the operator’s line of sight (subjective), and make judgement of whether or not the UAS is flying “directly over” persons on the ground.  And yet we know that even the FSDO officer in this scenario – the person who should be the most trained individual for correctly determining whether or not an UAS could be operated at an event – didn’t know for himself and prevented a legal flight.

 

Part 107 operator are rightfully anxious about this scenario and having any of their time critical operators blocked or interrupted.  Some contracts are tied to one time occurrences or specifically timed events.  Miss being able to launch or forced to land to address an ultimately illegitimate concern and it can mean the end of a client relationship, legal jeopardy for breach of contract, and loss of revenue.  Those clamoring for enforcement just may get a taste of that medicine and then be calling for education of the enforcers – after the fact.  If you haven’t considered your contingencies for this situation, well, now is the time to start planning – it will likely happen to you sooner or later.

 

As an aside, one Part 107 operator who did not attend the briefing to be accosted by the FSDO did fly the event as you can see in his shot on Instagram.  The operator did his due diligence in determining the correct legality for UAS flight.  In this case it paid off to not have any contact with the FSDO or balloon master of the event.