you're listening to the ask of droney podcast you ask we answer your drone questions whether you're here to turn your passion into profit when you simply fly for fun we're a community of wares and teachers who aspire to achieve greatness we are hey everyone and welcome to another awesome episode of ask drone you my name is Paul and I have the pleasure of having John Rupert with me welcome John hey thank you so much for having me absolutely it is always a pleasure to have you sir and you know you add so much value to this and today we've got a great topic to touch on and you know a lot of fpv racers have been talking to me John and they're worried that they may have to get a license from the FAA to actually race in fpv events and recently as I told you now the Idra is actually insisting people have not part 47 the paper registration route but the part 48 on line number two actually race their drone in a race so clear this issue up for us I know it's you know it's something that a lot of people are thinking about especially with 107 right around the corner yeah yeah it's not but we all want to know so John will you break this down for us sure so primarily what you're gonna be looking at is the two issues here we have 336 and then we have one out of seven three three six is the provision that was included in the FAA modernization Reform Act of 2012 and it was specifically put in there directed at the FAA to protect model aircraft fliers and what's interesting to note is that that as in 2014 the FAA put out a interpretation on that and its view is that individuals flying recreationally fpv okay they could not comply with the whole line of sight requirement in 3 3 6 therefore you cannot currently that's right now so is that because like goggles is that because of the okay so the FDA's view of line of really seen avoid this is really kind of going back to a bigger issue of 91 113 with seeing a void they in intimate goggles devices and stuff that they put on the aircraft they don't view that is looking at you know using your natural sensors of fuel and so military pilots have to actually get a KOA to do the night vision goggle training exercises and stuff like that the Black Hawk pilots they actually have to do that because there is some just the one I mean two big reasons why you have some focusing view issues because you're not gonna have the field of view as you normally would with your very eyes to since the lights are green on your your night vision that's kind of hard to detect other aircraft which have then their position lights are red and green so it's kind of hard when it's green it's kind of like being colorblind but with green if that makes any sense yeah and so that's why they actually have to get coasst so you've had a long-standing understanding of how that's getting done and then now you have this fpv setup being brought into it and so they would view it I guess someone can too over the you know the night-vision goggles because your field of view is restricted you know depending on what type of ratio and everything you're using with the fpv setup so that's the background behind all that and then that is this comes in there they're pretty much saying that seeing a void from ninety one thirteen and really requirements in and section three three six subsection C I believe it's – or it says line-of-sight they view it much more as an operational kind of ability of a pilot not so much as a limitation on the distance from the pilot I think the proper interpretation of line-of-sight should be when it says the word within okay not constantly maintaining you know your eyes on it at all times within and be a better way to understand it in in 107 the imperium and the discussion of how they were handling fpv racing they were saying that the within is primarily a distance factor so as to not allow go beyond they can kind of control it so you could fpv race under 107 in the future provided that you maintain that distance whatever it is but currently under as it stands right now the view is that fpv racing would not be complying with the provisions in section 3 3 6 or the yeah so you're not going to be provided the protections that were directed at those that protected class from FAA regulation of rulemaking so to summarize that the three three six provision the modelers provision that really protects recreational pilots wouldn't help them so my understanding of that is that they would have to get apart 107 license in order to actually fly fpv or fly races but the next question that I wanted to ask you is a lot of people are saying well you know you only have to get a 107 if you're a commercial pilot and a lot of people have been arguing you know what is a commercial pilot but as we had talked earlier on the phone you said well Paul you've got to be careful here because 107 is not just for commercial pilots 107 is for everything but recreational pilots right right it's a aircraft you're either in the recreational section 3/3 protected area or if you're not in there then you're gonna by default fall into a 107 setup that's kind of how it's being handled in that with the 333 so law enforcement educational institutions companies filing for free nonprofits any of those things they're non recreational they by default are gonna fall into like some other thing which is what currently 3 3 3 and in the future that'll be 107 so that would be actually beneficial for law enforcement agencies to fly under 107 in the future downside to that is 107 does not allow night operations so that's kind of a big problem there and there's also there's a few other bigger issues with TFRs and stuff and waivers that could potentially apply later on but that's a whole nother discussion with public sector stuff so let me ask you this question because you brought up a really good point about another case that I actually want to bring up to you about this case right earlier we are talking about and will be another episode I believe the next episode of the podcast talking about the enforcement actions what motherboard was talking about including the case in Connecticut where a guy attached a firearm to a drone and fluid around and now we have another federal case coming down to whether the FAA has authority to get this guy for anything that being said one of the things that you had mentioned John was that he was flying a non navigable airspace he was flying between the trees right my question is correct yeah my question is if we have fpv races that are under some sort of canopy or the canopy of the trees or between the trees do you think that the FAA would waiver their authority because it is not navigable airspace well we shall soon see the well what's the thought behind that explained explain the idea of that to everyone so everyone understands especially the fpv racers okay so what's going right now what's going on down in that case right now is the FAA issued a subpoena to the father and the son and their if you will going on a fishing expedition to find out what was going on well on the video you can clearly see it's in a wooded environment where there's no aircraft flying around unless you've been watching Return of the Jedi too much so which could be the case yeah and so the defense that the attorney is making for them is that this is completely outside of the commerce clause because at the end of the day you get the back end you know scroll out on these laws what's the supreme law of the land Constitution we have some amendments to the Constitution okay and then you have to kind of consider all that article 1 section 8 of the Constitution grants Congress the power to regulate interstate commerce okay coupled with the Necessary and Proper Clause it's a very very broad set up right there especially with the Obamacare ruling recently it's it's incredibly broad but you have to kind of think about it wait if this is not in the purview of Interstate Commerce Congress really has no authority to really regulate what's going on below the tree line because there is no interstate commerce with aircraft then therefore the FA does not have jurisdiction because Congress which delegated its though the the authority to create rules and regulations governing aircraft did not actually have authority so scrolling out that's one of the big arguments he is making which will play into this so most people have been arguing over the definition of aircraft when reality there's this other argument that needs to be more fully examined and that is what is considered interstate commerce and also the navigable airspace because this isn't really applicable so does the F H have jurisdiction to to do this can be the same argument does that Bay of jurisdiction over an aircraft flying in a basketball job you know just because it's a it's something that they regulate doesn't give them jurisdiction and that be the closest thing it's maybe a Basso Jim with so let me I was open well let me ask that question because we're seeing a lot of F here you race is going indoors because they're saying there is no FAA authority indoors is that a is that a bulletproof argument I mean we're hearing from you John Rupert aviation attorney tell us what is bulletproof and what is not how I mean fpv racing whether FA likes it or not is moving forward and is moving forward at such a rate that it's exponential growth and it's like we've said before it's a very rebellious very rogue group of people in fact I know maybe 1 in 10 fpv pilots who's ever registered their aircraft and that being said you know can these races go on inside without any FAA you know regulatory red tape well based upon these enabling statutes the commerce clause navigable airspace all of that it would be incredibly difficult for the FAA to assert jurisdiction over you that would probably be the better way now could they come after you you can get sued for anything will they I doubt that they would that doesn't mean they could so well when they're looking about it when they're looking about going after someone they've got a thing to you know public relations and can we really spend our time on this Alec allocating resources and people so you know they've got to be weighing out that's it that decision am i right wrong I mean I feel like it's a stinker of a case if you're gonna go into trying to fight somebody that was flying a bowling alley or something like that would be incredibly difficult for you to get jurisdiction over them because it's not a navigable airspace it's not even in the National Airspace System so what are they trying to actually protect I mean if you're gonna do that you could start arguing this you know jurisdiction over like shooting ranges for crying out loud that indoor shooting ranges because it's an aircraft something that was designed or intended to be flown through the air and just like a bullet okay so what about indoor golf ranges baseball batting cages and stuff like that I mean you can get a little nutso with this if you really want to I just don't think a reasonable attorney inside the FAA and I do believe there are some reasonable attorneys inside the FAA would would they wouldn't waste their time on that unless there was some politically motivated situation that went behind the scenes where you know someone from up on high said hey you know you take care of it yeah yeah so let me ask you this what in your opinion do you think and obviously you're not giving legal advice um I just wanted throw that in there um do you think that the FAA will ensure that fpv racers get registered and set up under 107 or do you think this is another battle that we're going to see play out because again we're in that scenario where I feel like the FAA is throwing things against the wall you know and seeing what's gonna stick what do you think's gonna happen I mean they could potentially do that I mean this is indoors outdoors I mean if they're talking outdoors my sir yeah they might cuz indoors I don't really don't see them wasting time on that that's that's kind of a fun little argument to make but like no one's gonna waste of time I think on that unless there's some big political motivation to do so behind the scenes you're yeah I mean outside I could see a potential situation developing where you would they might start checking on people you know hey show me a registration because of the regulations you're required to actually turn over that information and for requests to bio FAA or law enforcement to to look at that so they might start cracking down at some point in the future want to also be really interesting is that it actually requires that you submit this drug testing since this is an aircraft and I'm just kind of wondering like they could just get you for that because I'm wondering how many of these FPV guys or stoners and well yeah and that's a great point but that you know there are even guys who you know have cases of PTSD veterans even PTSD and a lot of people who I've met who you know are on drugs that inhibit them whether prescribed or not from even getting a pilot's license and some of these people have very legitimate illnesses and very legitimate reasons to take these drugs and that being said with the with the rise in medical marijuana you know it's accepted in what 24 states now there are a lot of veterans who are getting into drones simply because it gives them a way to emotionally experience the air again do you think that the drug testing could inhibit not only fpv racers but other pilots as well that may have very legitimate reasons for the drugs that they're taking well you have to you have to separate the difference between there's the refusal to submit to drug testing then there's also another provision that says if there is if you've actually been convicted of a state federal statute regarding kind of like a drug-related violation but if you're in a state that has medical marijuana you're not gonna get convicted there and if you pee in a cup you're not refusing so the real big issue at that point we kind of like looking back is that the you you're not we're allowed to fly your aircraft in such ways you're impaired by some type of drug or alcohol and what most pilots refer to is the eight-hour bottle the throttle rule it's the same kind of idea with the with a stimulant so if you have our on if you're buzzed of some sort you could potentially be in violation of the of 107 under under that point so you do have a problem if you are a PTSD guy doing marijuana who also likes to do a racing at that point I'd say my advice to you is like do one or the other actually I say just just don't forget the medical marijuana that causes all sorts issues just do you have TV or anything so so you you just brought up another really good right you you said well what if someone is on a stimulant and stimulants are rampant rampant across America's youth and millennial generation I'm talking things like adderall vyvanse you know the adde medication that I you know I'm not gonna put my position on that I was once prescribed that I no longer take it though but that being said what about that group of individuals because they would totally test positive in a drug test let's be honest right they would they would but then are they actually under the influence of those those drugs at the time of either violating regulations eight hours okay or at the time of flight so there there's a potential issue there and that's really kind of up to them to prove if you will I mean not that you have to prove your defense when you're getting prosecuted but it's so much cheaper to try to prove it all right out the get-go then have to pay an attorney like myself to try to deal with the FAA I would suggest anybody dealing in that area there is a that's a bunch of landmines and that yeah are you're you're playing with fire and as time goes on there the FAA inspectors could start getting a little bit more inquisitive at that point because if they can't nail you for some other violation and I just tell you to pee in a cup just to Porky because they know there's a high likelihood of a drug abuse or something going on with a lot of the FPV ears gotcha gotcha alright last question someone had mentioned to me that they want to make sure that I ask you this question I know we've talked a little bit about the commercial nature of fpv racing but simply in the fact that anything other than recreational is kind of falling under 107 but someone said I want to make sure you ask him about the argument of whether flying fpv racing is actually a commercial activity this is something again we talked about just a couple hours ago and you said well it could be gambling it could not be commercial it could be commercial because there are guys who could be making money from sponsorship deals and never is that commercial and then you have guys that win a race and they're making money you know and I gave the example of a professional athlete you know if someone goes out and plays tennis they wake surf you know they play golf they play lacrosse and they go to a regional tournament and they win and they make money is that commercial and then you have the very last side of that which is a nun sponsored pilot goes to the race who actually lost money so you know where where does where does the interpretation fall then this is a gray area man you're you're gonna be leaning more along the lines of then it's most likely compensation and so you can get a court to actually prove otherwise because it's saying that it's too attenuated of some sort because you are gonna be deriving a bunch of benefit from the flight from the sponsorship from the exposure but at the same time you could also be R well it's not a guaranteed win so the benefit isn't really guaranteed like we did a contract or something to go out and shoot a gig you know there's a possibility but not really it's like it's like gambling so all those those things are not to be kind of taken into account and also weighing just the public benefits of FPV racing for STEM education stuff like that so that that it hasn't been fully clarified in that area and I would suggest at this point if you can't fall into the FAA is incredibly broad classification that it's really direct or indirect benefit then you should you know keep that in mind that they could potentially come after you because it's very broad no one's really fully challenged them in specificity to the unmanned aircraft fpv racing discussion not really just like the three three three parker all that other stuff even though parker khan it does bring it back in and of the but what about the education aspect you i mean you you oh sorry i didn't want to interrupt you there's an enforcement action sorry well yeah no no no but that's problem so what's going on with the enforcement actions is they also they mentioned at least in i'm looking here five of these situations they went after people for some type of they weren't flying their aircraft with inline up site and nine and three through six subsection B does provide for the FAA to actually go after individuals who are endangering the national airspace and so they FA who kind of argue that's the equivalent of many ma thirteen but they still have some power to do that so if you were arguing you know doing a commercial you could be setting yourself up for some potential many 113a violations that are coming down the pike and this is this is also problematic because going over to the educational stuff that was my mom Wayne so thank you right well I remembered being with the educational setup okay the policy yeah paint the picture for us why why could FPV racing fall under the education aspect of drones and potentially save them from all this regulatory you know stuff without me when negative or yeah right so i would say that the educational memo came out and that was specifically targeted at two groups we have educational accredited educational institutions not jimbob's hobby shop doing it but then you have also the ability of community sponsored kind of based events events like Boy Scouts 4-h Girl Scouts stuff like that where you could go out and you know fly and do demonstrations or purpose of like you know kind of hitting community involvement of some sort but doing a Jim Bob hobby shop by the fact of you merely announcing that you're gonna get some benefit and fall out of that category the educational institutions that are accredited can actually put on the they can do some classes and the professor's can teach those classes but the problem is they have to keep their hands fair off the flying they can do brief incidental kind of very let me interrupt you for a second does it make sense to you that a professor teaching someone how to fly a drone cannot physically touch the controller of the drone even though the student of the drone has significantly less experience than the professor do you see any issue with that yes I'm just clarifying so for all of you in the FAA NTSB out there I just wanted you to hear that so thank you yeah well I mean just just to just to highlight the the craziness of the situation so the memo comes out that these professors can teach these classes and then let their students if you will just play test pilot on themselves with the aircraft I'm thinking the best situation for this is like a baseball dugout the crashing I'm like okay so I'm seeing a baseball dugout set up here okay I got that there's gonna be a lot of drones being sold because there's gonna be a lot of drones being crash which I guess that'd be great for like a follow-up class which is repairing your broken drones that'll be class two and create calibrating the IMU because I am you memory recovering from class number one exactly it'll be it'll be taking a fan on a minute kind of like you know we now have to recover the fam to that is you know up on the top of that pine tree over there so it's gonna be a rescue mission so it's kind of like search and rescue for drones or something pull the thermal out pull the thermal out we're gonna teach them search and rescue all right a student has to be in control take this $20,000 drone go ahead get on the LiPo battery catches on fire Whitehall that we found it we found it there there there's some problems there so they released that at the same time I put in four for flight instructing exemptions and we submitted some manuals for those and all the individuals are commercial pilots at a minimum we get denied flight instructing as a put on the bottom of the exemptions FA just ignoring us not answering stuff at the moment and then they have this memo that they come out letting people just fly I would just like wow the the craziness here is where you have all the manned aircraft pilots you know how to operate safely the national airspace are grounded and they don't want to lose the pilots licenses which in the enforcement actions one individual the FAA proposed a suspension on his pilot's license for 90 days he voluntarily let himself be suspended there was another guy who had a student pilot certificate who actually gave it up and allowed it voluntarily to be revoked to reduce his penalty from down $2,000 so an individual like myself that is a commercial pilot certificate I have two current flight instructor certificates I don't want to risk that so I'm sitting on the sidelines meanwhile professors and their students are in a dugout crashing stuff and it's just like wow this doesn't seem like it's actually promoting safety of any sort so just kind of like seeing that whole really unfortunate situation going down but back to education they the fa reference 2014 interpretation in there for fault line in the three three six category and what comes with that the whole prohibition on fpv racing so that's very problematic if you're wanting to do some type of stem classes or teaching how to do some fpv racing and fly under the the three through six setup so in the future when one of seven comes out all those students are gonna have to go get their 107 certificate to do that now that might be able to be somewhat worked around with the educational institution like the first class you get is like drone ground school at which the very end your finals taking 107 class two would maybe next semester would be go out and build your fpv register and learn the mechanics and actually skills of flying they might do it like that but it is problematic if you're trying to do it outside of you know in a quicker timeline because now you have to always have 107 preceding it and it's a two-person operation when 107 comes out yeah yeah well well John reprint thank you so much Aviation attorney for clearing things up for us as the waters continue to get muddier here in the airspace of the FAA I mean that made no sense but guess what nothing does when it comes to no I'm just trying to wrap my no no I'm just trying to use the same rationale John I'm just trying to set everything up the same way you know air or water they're the same thing you know whatever anyway ya know I really appreciate having you on thank you so much for clearing the air hopefully we'll figure out you know what the FAA does with fpv racing because it is growing so much and at what point is Congress the Senate you know our government officials gonna say the FAA is getting in the way of significant economic growth we now know it's in the billions get out of the way I mean like that you know I don't know what else to say but I'm very interested you know our state senators here in New Mexico and in Colorado are adamantly staying on top of this so very happy about that but we'd like to see more pressure we obviously all want the same thing here I mean that's what I find funny is that you know we've got the FAA one side of the table FPV racers drone pilots commercial airline pilots and we're all saying look we just want very clear simple rules to allow your drone not to hit my aircraft I want to fly the same way we need to allow drones to you know be easily you know an easy barrier to entry into the commercial market same thing with fpv racers and recreational guys so I feel like we all kind of want the same thing we're just nitpicking at each other for you know all the little nuances in terms and again I feel like the FAA is kind of the guy on the outside of the table saying we're just gonna let everything clash and hit each other and break stuff and then see how we should write the rules so that we don't break stuff again you know again it's that whole let's let the courts figure it out ideology yeah I agree I agree well John thank us yeah we and you know what we're gonna have you on another podcast John thank you so much if we wanted to find out more information about you if we wanted to get a hold of you because maybe we got a call from the FAA or maybe we want a 33 or you know there are a hundred different reasons to call you where can we go to find out more information on you sure you can go to my website at www.ge.com you can also check out my twitter at a true Peck law and make sure to sign up for my newsletter at at my website so when i regularly put out these blog posts I include that in the newsletter awesome well John thank you so much and guys thank you for listening to this awesome episode this was episode 364 and we're gonna have John on again and we're gonna talk about these enforcement actions that we met up with motherboard and discussed with them so John thank you again so much that's can do it for us today you're listening to ask a drone you we believe that videos images words and sounds have the absolute power to inform inspire and entertain we reject indecision confusion and Bennet but they work against the community we are united under the virtues of safety and knowledge we are a training community of learners and teachers who encourage and energize each other to achieve greatness we are palace videographers photographers freelancers business owners enthusiasts experts and apprentices we are creators we are the drone
OUR APOLOGIES FOR NOT HAVING AN ACTUAL VIDEO ON THIS. WE’RE WORKING THROUGH SOME TECHNICAL ISSUES AS OUR EDITOR IS UNEXPECTEDLY SICK. THANKS FOR YOUR PATIENCE AND UNDERSTANDING. WE’LL BE BACK ON TRACK VERY SOON! THE LAST TWO EPISODES WERE LIVE STREAMED ON OUR FACEBOOK PAGE, IF YOU’D LIKE TO WATCH IT THERE (LINK BELOW).
0:35 – Today’s topic of discussion
1:17 – Response to today’s discussion by Jon Rupprecht
4:43 – Paul summarizes Jon’s response
5:01 – Is 107 required only for a commercial pilot? Who is a commercial pilot?
6:21 – Paul’s question on FAA authority on non navigable airspace?
9:44 – Indoor FPV racing
12:10 – Will the FAA ensure FPV racers to register under 107?
13:36 – Will drug testing inhibit drone pilots?
15:31 – Drug testing people on stimulants
17:09 – Is flying FPV racing a commercial activity?
20:43 – Why could FPV racing fall under education aspect of drones?
21:50 – Drone classes and authorization to drone flying teaching professors
If you’re an FPV racer then you don’t want to miss this. If you’re thinking of getting into racing like so many others, then be sure and join us today. Fly safe!
Get your questions answered:
Please do us a favor, “Like” this video and “Subscribe” to our channel.
We’d also love to have you leave a comment as we will read them.
– YouTube URL for this video
Tell us what you think of the our show. We listen and tweak often. So please leave a review on iTunes:
Download the Periscope app and watch our “pre-show” about 5 minutes before the live podcast (@THEdroneU).
Watch Ask Drone U live by visiting our Facebook page (link below).
Please watch: “Flying Drones in Hot Weather? Here’s What You Need to Know”