1

BEFORE THE ADMINISTRATOR OF THE UNITED STATES

FEDERAL AVIATION ADMINISTRATION

PETITION FOR RULEMAKING

MODOVOLATE AVIATION, LLC

Petitioner

1131 Carol Lane

Glencoe, IL 20022

MEMORANDUM IN SUPPORT OF 

PETITION FOR RULEMAKING SEEKING THE REGULATION

OF

SMALL UNMANNED AIRCRAFT SYSTEMS

UNDER 49 U.S.C. §§ 44701(a), 40109(b), and 44701(f) 

9 July 2014
2

MEMORANDUM IN SUPPORT OF 

PETITION AND COMMENT OF MODOVOLATE AVIATION, LLC, 

FOR RULEMAKING ON 

SMALL UNMANNED AIRCRAFT SYSTEMS

Introduction and summary

This Memorandum supports the Petition and Comment of Modovolate Aviation, LLC, 

for Rulemaking on Small Unmanned Aircraft Systems (“sUAS” or “microdrones”).

It argues that the FAA is authorized to regulate such systems, that it is statutorily 

mandated to do so by a deadline already passed, that, as a result, many unregulated 

flight vehicles are being operated so as to pose a threat to manned aircraft and to 

persons and property on the ground, that the FAA lacks the resources to implement a 

traditional regulatory system modeled on regulation of manned aircraft, and that it 

should instead regulate microdrones as consumer products by imposing prerequisites 

for offering them in the marketplace.

As the Petition itself requests, if the FAA issues an NPRM on this subject within 45 days 

of the submission of the Petition, the Petitioner requests that the Petition and this 

supporting Memorandum become part of the rulemaking record opened by the NPRM, 

pursuant to 14 C.F.R. § 11.73(b).

Terminology is problematic. The FAA officially refers to the flight vehicles as “small 

Unmanned Aircraft Systems.” United Kingdom regulators refer to them as “Unmanned 

Aircraft”. The Australian Civil Aeronautics Authority recently amended its regulations 

to replace the term “UAV” with the term “RPA” (remotely piloted aircraft). To avoid 

terminological confusion within the current binary classification system for small 

Unmanned Aircraft Systems, this Memorandum refers to small unmanned aircraft 

weighing less than 20 pounds as "microdrones," a term commonly used in the 

intensifying public discourse. It refers to larger unmanned aircraft as “machodrones.”

Interests of the petitioner 

Modovolate Aviation, LLC, (the “LLC” or “Movo Aviation”) an Illinois limited liability 

company organized for the purpose of conducting microdrone research, 
3

experimentation, demonstration, and education. Modovolate Aviation, LLC, also is 

known as “Movo Aviation.”

The opportunities available to Movo Aviation are extensive if it were allowed legally to 

engage in these activities in a commercial context. The LLC has the capability within its 

resources to contract with customers to operate commercial microdrones for 

demonstration purposes in a variety of practical mission environments. Because of legal 

uncertainty in the absence of regulations or an NPRM from the FAA, the LLC is at a 

significant competitive disadvantage because of its knowledge of and commitment to 

comply with the Federal Aviation Rules. 

Movo Aviation was formed and is jointly owned by Henry H. Perritt, Jr. and Eliot O. 

Sprague.

Henry H. Perritt, Jr., the Managing Member of the LLC, is a law professor and former 

dean at Chicago-Kent College of Law, the law school of Illinois Institute of Technology. 

Holding a bachelor of science degree in aeronautics and astronautics from MIT, a 

master of science degree in management from MIT’s Sloan School, and a juris doctor 

degree from Georgetown University Law Center, Mr. Perritt has written dozens of law 

review articles and several books on how the law should adapt to technological 

innovation. He also is an expert on the federal regulatory process, having written many 

articles on the subject, having served as an official in the federal wage and price control 

program, as a member of the White House Staff, and as Deputy Under Secretary of 

Labor. As a consultant to the Administrative Conference of the United States, he wrote 

reports on, among other things, the utility of negotiated rulemaking, in which affected 

interests and regulatory agencies collaborate in developing the content of new rules, 

and on the process for adjudicating civil penalties under the Federal Aviation Act. He is 

a private helicopter and airplane pilot.

Eliot O. Sprague is Director of Operations and Chief Pilot of the LLC. He is a full-time 

news helicopter pilot, helicopter flight instructor, director for a Chicago-area ondemand commercial helicopter operator, and a member of the board of directors of 

Midwest Helicopter Association. A graduate of Hillsboro flight school, he is intimately 

familiar with commercial aviation and familiar with the threats that unregulated 

microdrone flight present to the safety of himself, his coworkers, his passengers, and to 

persons and property on the ground. He holds commercial helicopter and airplane, 
4

instrument helicopter, commercial flight instructor-rotary wing, and commercial flight 

instructor – instrument-rotary wing ratings.

Through the LLC, Messrs. Perritt and Sprague have flown a variety of microdrones and 

are now constructing a larger one for which they have applied to the FAA for a special 

certificate of airworthiness/experimental so that they can conduct more extensive flight 

tests and data collection in the commercial context to understand more concretely their 

capabilities, the challenges they present to operators, and the risks they pose to other 

aviators and to the general public.

They have co-authored a number of articles over the past several months on microdrone

technologies and their application as microdrones are integrated into the National 

Airspace System.

Nature of the problem

The 26 June 2014 DOT inspector general's report1 concludes that the FAA is way behind 

in meeting at statutory mandate to integrate drones into the National Airspace System. 

"[I]t . . . remain[s] unclear when, and if, FAA can meet its goals to safely integrate UAS."

2

Fulfilling its mandate to integrate small unmanned aircraft system of the national 

airspace system confronts the FAA with two clashing realities. First, unregulated 

operation of these vehicles poses serious hazards to the flight of other aircraft and to

persons and property on the ground. But second, these flight vehicles are consumer 

products priced at levels that almost anyone can afford. They are obviously useful and 

have already been purchased in great numbers on the open market, through ecommerce and more traditional channels, and are being flown widely.

While the FAA has consistently reiterated its position that such microdrone operation is 

illegal until the FAA establishes a regulatory framework, and has levied a few civil 

penalties and sent a number of cease-and-desist letters, the FAA's position has had little 

 

1

 Office of Inspector General, FAA Faces Significant Barriers to Safely Integrate Unmanned Aircraft Systems 

into the National Airspace System, Report Number: AV-2014-061 (June 26, 2014), 

http://www.oig.dot.gov/sites/dot/files/FAA%20Oversight%20of%20Unmanned%20Aircraft%20Systems%

5E6-26-14_0.pdf [hereinafter "Inspector General Report").

2

 Id. at 16 (emphasis added).
5

discernible effect. Vendors continue to sell them and ordinary people lacking airmen 

certificates continue to fly them.

The most urgent problem is presented by rotary-wing microdrones, weighing 10-20 

pounds. These are the vehicles being purchased online from a wide variety of vendors 

by individuals lacking any connection with the safety-oriented and FAA-rulecompliance culture of the aviation community.3 Fixed-wing microdrones have far less 

utility, and therefore are less popular. Machodrones will cost more, require more 

elaborate traffic separation systems, and are more likely to be operated within the 

organizational and licensing infrastructure for manned aircraft. Their prices will place 

them beyond reach of the casual consumer or small business.

The Inspector General’s report appropriately criticizes the FAA’s unreasonably coarse

classification of drones.

4 The greatest threat arises from operation of inexpensive

rotorcraft at the low end of the weight and flight-capability spectrum. Within the last 

few days a New York police helicopter nearly collided with a microdrone flying at 2,000 

feet.5

This is where the FAA most urgently needs to focus its attention. 

Authority to regulate

The FAA has authority to regulate microdrones under 49 U.S.C. § 44701(a) (prescribing 

standards for aircraft); 49 U.S.C. § 40109(b) (authority to grant exemptions); 49 U.S.C. § 

44701(f) (same); and 49 U.S.C. sec. 44711(a)(1) (prohibiting operation of civil aircraft 

without an airworthiness certificate.

 

3

 See Larry Celona, 2 Drones in near-miss with NYPD chopper, N.Y. Post, July 7, 2014, 

http://nypost.com/2014/07/07/two-drones-in-near-miss-with-nypd-copter-over-gwb/ (quoting sources that 

report drone flights at 2,000 and 5,000 feet by a microdrone purchased for $500-$700).

4

 Inspector General Report at p. 8.

5 Larry Celona, 2 Drones in near-miss with NYPD chopper, N.Y. Post, July 7, 2014, 

http://nypost.com/2014/07/07/two-drones-in-near-miss-with-nypd-copter-over-gwb/ (quoting sources that 

report drone flights at 2,000 and 5,000 feet).
6

Section § 44701 and 44704 of Title 49, 6 and section 333 of the 2012 Act give the FAA

sufficient flexibility to address these risks in light of the difficulties of regulating 

microdrones with its traditional approaches. In Holbrook v. United States,

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the court of 

appeals reiterated the breadth of the FAA's authority under section 44701. The court 

quoted the Supreme Court's opinion in Varig Airlines,

8

that the agency is entitled, under 

the statute, to “establish and implement a mechanism for enforcing compliance with 

minimum safety standards according to its judgment of the best course."9 Further 

quoting Varig, the court deferred to the FAA's balancing of such policy considerations 

as “the goal of air transportation safety and the reality of finite agency resources.”10 The 

Supreme Court has recognized that the FAA has flexibility to select a regulatory 

enforcement method that takes into account its limited resources.11 Rather than 

withholding action until its statutory authority can be clarified by the Congress, the 

FAA should act now under its existing authority. Then, if its authority is challenged 

 

6

 “(a) Promoting safety.--The Administrator of the Federal Aviation Administration 

shall promote safe flight of civil aircraft in air commerce by prescribing--

(1) minimum standards required in the interest of safety for appliances and for the 

design, material, construction, quality of work, and performance of aircraft, 

aircraft engines, and propellers.” 49 U.S.C. § 44701.

49 U.S.C. § 44704 generally is interpreted to prohibit the manufacture of an aircraft until 

it has received a type certificate, although the section does not explicitly impose such a 

prohibition. "A manufacturer wishing to introduce a new type of aircraft must first 

obtain FAA approval of the plane's basic design in the form of a type certificate." 

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 

797, 805 (1984). "[B]efore introducing a new type of aircraft, a manufacturer “must first 

obtain FAA approval of the plane's basic design in the form of a type certificate." 

Holbrook v. United States, 673 F.3d 341, 343 (4th Cir. 2012).

7

 673 F.3d 341 (4th Cir. 2012) (rejecting challenge to FAA’s grant, then suspension, of 

airworthiness certificate for helicopter type).

8

 Varig Airlines, 467 U.S. at 816 (characterizing FAA's broad discretion in rejecting 

Federal Tort Claims Act claim).

9

 673 F.3d at 346.

10

 673 F.3d at 346.

11 See Varig Airlines, 467 U.S. at 806-807 ("With fewer than 400 engineers, the FAA 

obviously cannot complete this elaborate compliance review process alone.")
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successfully in judicial review, it can approach the Congress with a narrower set of 

statutory clarifications, tailored to actual difficulties.

The Consumer Product Safety Commission (“CPSC”) prohibits sales of certain 

manufactured goods not meeting safety standards—the approach urged by the Petition 

and this Memorandum--but the Commission lacks the authority to regulate aircraft and

aircraft systems because of a specific exclusion from the definition of "consumer 

product." 12

If, however, model aircraft are excluded from the definition of "aircraft" as the ALJ 

decision in the Pirker case reasons, the CPSC does have authority to regulate them, 

because only “aircraft” are excluded from the CPSC’s jurisdiction... The FAA and the 

CPSC could move forward in tandem, with the FAA prohibiting the sale and 

distribution of commercial microdrones not meeting the prescribed limitations for small 

unmanned "aircraft," while the CPSC prohibits the sale and distribution of recreational 

hobbyist vehicles not meeting the same requirements.

 

12

 “§ 2068. Prohibited acts

“(a) It shall be unlawful for any person to--

(1) sell, offer for sale, manufacture for sale, distribute in commerce, or import into the 

United States any consumer product, or other product or substance that is regulated 

under this chapter or any other Act enforced by the Commission, that is not in 

conformity with an applicable consumer product safety rule under this chapter, or any 

similar rule, regulation, standard, or ban under any other Act enforced by the 

Commission.” 15 U.S.C.A. § 2068

15 U.S.C. § 2052(5)(F) excludes from the definition of "consumer product" subject to 

CPSC regulations “aircraft, aircraft engines, propellers, or appliances (as defined in 

section 40102(a) of Title 49).”
8

Enforcement of traditional FAA rules is infeasible

The regulatory approach traditionally pursued by the FAA to regulate manned aircraft 

is unsuitable for regulating consumer products like microdrones. Manned aircraft are 

expensive capital goods. The size of the necessary investment by operators and the 

essentiality of valid pilot certificates for the careers of professional pilots provide strong 

incentives to comply with FAA regulations. These incentives are entirely lacking in the 

microdrone environment.

Given the relatively small size of these flight vehicles compared to manned aircraft, the 

small geographic scope of their operational capabilities, and their proliferation, it is 

unrealistic to think that the FAA ever could marshal enough enforcement resources to 

detect every violation of its current prohibition.

The FAA should regulate microdrones as consumer products

The FAA must treat microdrones as what they are: inexpensive consumer products that 

put strikingly useful technologies within the reach of almost everyone. The FAA must 

recognize that it is regulating something that is available off-the-shelf at very low 

prices. In other words, the economic barriers to entry are quite low. People purchasing 

microdrones are likely to be individuals and small businesses not now in the aviation 

industry. If they are confronted with a regulatory process designed for type certification 

of the 787 or the Diamond Twin Star or licensing requirements for instrument-rated 

medevac helicopter pilots, they are more likely to take the outlaw route. The average 

person purchasing a microdrone does not have the means for such certification. This is 

especially true because the dangers facing the operator are minimal and do not pose 

significant risk to the individual flying the microdrone to provide an incentive to incur 

the cost for certification. Thus, the regulatory process needs to be much simpler.

A fundamentally different approach to regulation, new to the FAA, but proven in the 

context of other federal consumer product safety regulation, would enhance the degree 

of compliance with reasonable requirements and ease the burden on FAA rulemaking 

and enforcement resources.

The agency should take advantage of the capabilities of microdrone technology to 

enforce certain limits on flight profiles autonomously. Such an approach would focus 

FAA energy on defining what limits should be built into drones commercially 
9

marketed, relieving it of detailed regulation of airmen and detailed flight rules to be 

enforced in the conventional way. 

The FAA has very broad authority for safety regulation under 49 USC §§ 44701 and 

44704. Traditionally, it has focused on the operation of aircraft rather than their sale and 

distribution. Aviation regulation traditionally has stood on three pillars: certification of 

aircraft, certification of airmen, and rules for flight operations. Aircraft certification

imposes detailed requirements on vehicle design and manufacture. Airmen certification 

allows for requiring defined skills and knowledge of personnel who operate and 

maintain aircraft. Flight rules specify how certificated airmen can fly certificated 

aircraft.

Requirements in the three areas are interrelated. For example, more demanding airmen 

requirements can compensate for more relaxed vehicle requirements; a highly skilled 

pilot can fly a poorly behaved aircraft safely, while only well-behaved aircraft should be 

flown by pilots with ordinary skills. And more restrictive flight rules can compensate 

for simpler airmen or vehicle requirements. For example, section 61.101 of the FARs 

prohibits recreational pilots from carrying more than one passenger and from flying 

more than 50 miles from the airport of origin, unless the pilot has received additional 

instruction. FAR section 91.319 imposes flight restrictions such as VFR-day only on 

experimental aircraft unless they meet additional certification requirements.

Microdrones, however, present regulatory challenges not presented by manned

airplanes and helicopters, for the reasons developed in the preceding paragraphs.

Despite their unique challenges for effective regulation, they present safety risks to air 

commerce at least as great as those presented by manned aircraft. 

The capability of microdrones to restrict their flights opens up new possibilities for 

regulation. Most microdrones already on the market have some capability to hover 

autonomously. Many can also take off, land, orbit a GPS waypoint, return to home 

autonomously, and be programmed to stay within an envelope defined by maximum

height AGL, maximum radius, and maximum speed. 

The FAA should embrace this self-enforcement capability rather than engaging in the 

line-by-line adaptation of existing rules. It should think of microdrones as the consumer 

products that they are.
10

If a microdrone is designed and manufactured so that it will not operate outside of 

flight parameters specified by FAA rules for approval, detailed regulation of operators 

is unnecessary; they simply will be unable to fly their vehicles in violation of the rules; 

the vehicle will not comply with an illegal command.

Likewise, if the commercially marketed microdrones are incapable of operating outside 

the rules, the number of rule excursions by vehicles needed to be detected by the FAA

enforcement arm will be greatly reduced.

While many purchasers of microdrones assemble them from kits, they mostly use 

standard components developed and manufactured by a dozen or so vendors of 

components. Few operators have the capability to design and build these core 

components – power distribution boards, flight control boards, and GPS navigation--

boards from scratch. Accordingly, even the kit portion of the market can be made safer 

by the proposed approach; flight control and GPS navigation control boards cannot be 

sold unless they meet the proposed requirements.

Proposed contents of the rule

14 C.F.R. Aeronautics and Space

Subchapter C

Part 50

§ 50.101 Marketing of small Unmanned Aircraft Systems.

(a) Except as provided elsewhere in this section, no person shall sell or lease, or offer for 

sale or lease (including advertising for sale or lease), or import, ship, or distribute for the 

purpose of selling or leasing or offering for sale or lease, any small Unmanned Aircraft 

System unless the System complies with the technical standards of subsection (b) and 

also complies with all applicable administrative (including verification of the equipment 

or authorization under a Declaration of Conformity, where required), technical, labelling 

and identification requirements specified in this chapter.

(b) Performance requirements

Each small Unmanned Aircraft System must have these limitations programmed into it, 

beyond the control of the operator to override the limitations:
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(1) Restricting flight to heights no greater than 400 feet above the surface;

(2) Restricting flight to horizontal distances no greater than 1,500 feet from the ground 

control station;

(3) Excluding flight in Class B, C, or D airspace; and

(4) Ensuring that the flight vehicle autonomously returns to its launching point if the 

control link is lost

Other federal agencies successfully use this approach

Proven models exist for regulating consumer products like microdrones by prohibiting 

their introduction into the marketplace unless they incorporate basic limitations on their 

operation. Other agencies have proven the practicability of regulating consumer 

products by prohibiting offering them in the marketplace unless certain safety features 

are built in.

The FAA should imitate the Federal Communications Commission’s (“FCC”) regulation 

of WiFi routers and cellphones, or the Consumer Product Safety Commissions, 

regulation of lawnmowers. 

The FCC uses this approach to mitigate the risks of Wi-Fi networking. The FCC makes

certain blocks of radio frequency spectrum available on an unlicensed basis for wireless 

networking of computers. In this regulatory regime, users of the technology need not 

obtain radio operator licenses, as they must for many other wireless services. Operating 

rules exist, but rather than being enforced directly, by FAA inspectors, or through radio 

operator licensing to assure that operators understand the regulations, the operating 

rules are internalized into the hardware. The requirements for hardware certification 

manage the risk of interference from the radio equivalent of a midair collision – though

usually with less risk to human life and property – by limiting transmitter power and 

the requiring software to behaves in a certain way when the device detects a conflicting 

signal.

Wireless routers and the Wi-Fi transceivers and antennas built into almost every 

desktop and laptop computer must, before they can be offered in the marketplace, be 

certificated by the FCC. Indeed one can see the representation of certification engraved 
12

or otherwise affixed to such devices. In other words, it's not possible for the hardware 

to violate the operating rules unless one modifies it – a far from trivial process. 

A growing consensus defines the particular limitations that should be 

built in to microdrones

Some aspects of a gradually forming consensus are sound. Most fundamentally, 

microdrones should be confined to certain spaces where they are less likely to 

encounter manned aircraft. But how should these spaces be defined?

The most basic rules to be encoded into microdrones are largely agreed on. First, a 

height limit is necessary to keep microdrones away from the airspace in which manned 

aircraft fly most of the time. Under the proposed approach, legal microdrones must 

have a navigational mechanism—a combination of barometric pressure sensors

(altimeters)) and GPS navigational systems--that would not permit them to fly more 

than 400 feet above ground level.

Second, microdrones can be flown only within line of sight. In order to keep them 

within line of sight and within wireless control-link range, microdrones must have a 

built-in radius limit of, say, 1500 feet horizontally from the DRoneOPerator (“DROP”). 

As a further prerequisite for certification, microdrones must have a return-to-home 

feature that could be triggered by the DROP and which would be automatically 

triggered by loss of signal. This also might be triggered by an indication that the DROP

has become inattentive, kind of like the "dead man control” on railroad locomotives 

(more formally known as “alerters”).

Specific airspace restrictions also could be enforced. Relatively inexpensive moving 

map systems for manned aircraft automatically alert pilots that they are about to enter 

controlled airspace. The same geospatial referencing algorithms could be used to 

prevent microdrones from flying into Class B, C, or D airspace.

Once a microdrone meets these requirements and is type certificated by the FAA, it 

could be offered for sale through any channel. A potential operator could buy one on 

Amazon or elsewhere, take it out of the box, and fly it for whatever purpose, without 

having to worry about compliance with FAA rules. Compliance would be built-in.
13

To be sure, no regulatory system encounters 100% compliance, but the incidence of 

noncompliance is a function of the incentives for noncompliance, and the ease of 

noncompliance. If the microdrone type certification requirements strike a reasonable 

balance between legitimate safety concerns and productive utility, few purchasers of 

these vehicles would have a significant incentive to corrupt their vehicles so they would 

become outlaws. 

Furthermore, the vehicles themselves can be made extremely difficult to corrupt. 

Modifying a wireless router to operate on a different set of frequencies from those for 

which it is designed is quite different from cutting off the tailpipe of a hotrod, or taping 

down the blade control on a lawnmower.

If a smartphone is designed to resist user modifications, only those with significant 

technical knowledge, and a gentle touch can override design features. The same thing is 

true of consumer-oriented wireless networking devices. Causing an off-the-shelf 

wireless modem to transmit on the ILS frequency of a nearby airport is not easy. Just as 

important, why would anyone want to do it?

Furthermore, while it might be overkill, microdrones could be programmed to detect 

tampering and create a log that could be used as evidence against those who tampered, 

basically building off the same idea as theft protection and recovery protocols built into 

smartphones.

This approach is far better suited to regulation of consumer products—which 

microdrones already are—than a more traditional approach, designed around 

expensive airplanes and helicopters, which are not bought online, used, and discarded 

casually.

The proposed rule will enhance compliance

While it might seem that the adoption of the proposal would merely add another 

unenforceable layer to the status quo, this is not so. The present prohibition can be 

enforced, if at all, only by the FAA’s detecting actual operations of microdrones for 

commercial purposes. The proposed regulation would permit the FAA to focus its

enforcement resources on fewer than a dozen major vendors. The compliance incentives 

are greater for vendors than they are for the undifferentiated mass purchasers and 

operators.
14

Vendors have significant incentives to meet the requirements in a robust and reliable 

way. A vendor delivering unreliable systems would be subject to substantial liability 

under ordinary tort law. The existence of the FAA performance standards would 

represent the standard of care a manufacturing vendor must meet in order to avoid 

liability, under the well-known doctrine of negligence per se.

The proposed regulation will accommodate reality much better than the status quo or a 

traditional set of regulations for the place after years of development. Rule compliance 

always is greater when prohibitions or limitations are congruent with market and 

technological realities.

The proposed rule eliminates the troublesome distinction between 

“model aircraft” and small Unmanned Aircraft

The proposed approach fully satisfies the statutory safe harbor for model aircraft, in § 

336 of the 2012 Act, which prohibits regulation of model aircraft meeting certain 

conditions. Under the proposed rule, model aircraft meeting the statutory definition 

could be sold and flown, without further regulation; the proposal simply ensures that 

all microdrones, whether intended to be flown for commercial or recreational purposes,

meet the statutory definition of model aircraft. When they do, their operations would 

not be regulated otherwise.

Prompt issuance of an NPRM will permit crystallization of specific issues 

and options for their resolution

The longer it takes for the FAA to get rules in place prescribing design characteristics 

for microdrones, the more of them not meeting these requirements there will be. It is 

not feasible for the FAA to establish a sufficiently pervasive enforcement presence to 

stop the noncompliant vehicles from flying. Eventually, attrition of existing 

microdrones will increase the percentage of compliant microdrones and reduce the 

percentage of noncompliant ones. Noncompliant microdrones will be destroyed, 

damaged, abandoned or replaced with newer models containing better technology and 

complying with FAA requirements. Time is of the essence, however.

Enough information exists now in the literature and in the contents of this Petition and 

supporting Memorandum to permit the FAA to issue an NPRM within a matter of 

weeks. Not all of the issues can be resolved concretely, but issuance of an NPRM will 
15

frame useful participation by the FAA and its affected interests to narrow the issues and 

develop the details.

Following this approach does not mean that the FAA must make detailed design

decisions itself. It can, instead, embrace a performance-based regulatory approach in 

which it accepts manufacturer representations as to standards compliance, much as the 

FCC does under its procedure for Wi-Fi equipment.

Nor is a protracted period necessary to develop detailed design specifications for 

microdrone flight control systems. The limitations simply can be stated as performance 

requirements, allowing vendor designers to come up with their own technologies for 

meeting the requirements. 

There would, no doubt, be a period of evaluation of the rule, which might expose a 

need for further refinement or supplementation. This reality, should not, however, hold 

the FAA back. A straightforward requirement that everything on the market be

autonomously law-abiding would represent a substantial improvement over the status 

quo.

The petitioners are not alone in pressing for speed and a new direction.

Most aviation advocacy organizations joined in a letter to the FAA administrator urging 

him to accelerate release of an NPRM and to allow greater flexibility in the meantime.13

Press and media organizations filed an amicus brief in the Pirker case, arguing that the 

current prohibition on news gathering operations of microdrones violates the First 

Amendment of the United States Constitution.14

Litigation over the FAA's position and inaction on rulemaking is spreading, down from 

the National Transportation Safety Board to the states Court of Appeals in the 11th and 

second circuits. An administrative law judge (“ALJ") at the National Transportation 

Safety Board (“NTSB”)15 has invalidated the FAA's blanket prohibition, and press and 

 

13

 http://higherlogicdownload.s3.amazonaws.com/AUVSI/958c920a-7f9b-4ad2-9807-

f9a4e95d1ef1/UploadedFiles/Joint%20Letter%20to%20FAA%20on%20Expediting%20UAS%20rulemaking

%20Final.pdf

14

 http://www.dronejournalism.org/news/2014/5/american-news-media-coalition-files-brief-in-supportof-pirker-first-amendment-rights

15

 The NTSB hears appeals of civil penalties imposed by the FAA.
16

media advocates have filed an amicus brief with the full NTSB in conjunction with its 

review of the ALJ decision, arguing that the ban on newsgathering use violates the First 

Amendment’s guarantee of freedom of the press.

MODOVOLATE AVIATION, LLC

By

(s) Henry H. Perritt, Jr.

Henry H. Perritt, Jr.

1131 Carol Lane

Glencoe, IL 60022

(312) 504-5001

hperritt@gmail.com

its

General Counsel
1

BEFORE THE ADMINISTRATOR OF THE UNITED STATES

FEDERAL AVIATION ADMINISTRATION

PETITION FOR RULEMAKING

MODOVOLATE AVIATION, LLC

Petitioner

1131 Carol Lane

Glencoe, IL 20022

9 July 2014 

1. The FAA has authority to promulgate aircraft certification 

requirements, flight rules, and airmen certification 

requirements for small unmanned aircraft systems (“sUAS” or 

"microdrones"), under 49 U.S.C. §§ 40109(b, 44701(a),

44701(f), and 44704.

2. In section 332 of the FAA Modernization and Reform Act of 

2012, Pub. L. 112-95, 126 Stat. 11 (Feb. 14, 2012), the 

United States Congress mandated that the FAA issue a final 

rule for operation of such systems and a further notice of 

proposal making for regulation of unmanned aircraft systems

systems by 31 August 2013, with integration to be complete 

by 30 September 2015.

3. No such final rule or NPRM has issued to date.
1

BEFORE THE ADMINISTRATOR OF THE UNITED STATES

FEDERAL AVIATION ADMINISTRATION

PETITION FOR RULEMAKING

MODOVOLATE AVIATION, LLC

Petitioner

1131 Carol Lane

Glencoe, IL 20022

MEMORANDUM IN SUPPORT OF 

PETITION FOR RULEMAKING SEEKING THE REGULATION

OF

SMALL UNMANNED AIRCRAFT SYSTEMS

UNDER 49 U.S.C. §§ 44701(a), 40109(b), and 44701(f) 

9 July 2014
2

MEMORANDUM IN SUPPORT OF 

PETITION AND COMMENT OF MODOVOLATE AVIATION, LLC, 

FOR RULEMAKING ON 

SMALL UNMANNED AIRCRAFT SYSTEMS

Introduction and summary

This Memorandum supports the Petition and Comment of Modovolate Aviation, LLC, 

for Rulemaking on Small Unmanned Aircraft Systems (“sUAS” or “microdrones”).

It argues that the FAA is authorized to regulate such systems, that it is statutorily 

mandated to do so by a deadline already passed, that, as a result, many unregulated 

flight vehicles are being operated so as to pose a threat to manned aircraft and to 

persons and property on the ground, that the FAA lacks the resources to implement a 

traditional regulatory system modeled on regulation of manned aircraft, and that it 

should instead regulate microdrones as consumer products by imposing prerequisites 

for offering them in the marketplace.

As the Petition itself requests, if the FAA issues an NPRM on this subject within 45 days 

of the submission of the Petition, the Petitioner requests that the Petition and this 

supporting Memorandum become part of the rulemaking record opened by the NPRM, 

pursuant to 14 C.F.R. § 11.73(b).

Terminology is problematic. The FAA officially refers to the flight vehicles as “small 

Unmanned Aircraft Systems.” United Kingdom regulators refer to them as “Unmanned 

Aircraft”. The Australian Civil Aeronautics Authority recently amended its regulations 

to replace the term “UAV” with the term “RPA” (remotely piloted aircraft). To avoid 

terminological confusion within the current binary classification system for small 

Unmanned Aircraft Systems, this Memorandum refers to small unmanned aircraft 

weighing less than 20 pounds as "microdrones," a term commonly used in the 

intensifying public discourse. It refers to larger unmanned aircraft as “machodrones.”

Interests of the petitioner 

Modovolate Aviation, LLC, (the “LLC” or “Movo Aviation”) an Illinois limited liability 

company organized for the purpose of conducting microdrone research, 
3

experimentation, demonstration, and education. Modovolate Aviation, LLC, also is 

known as “Movo Aviation.”

The opportunities available to Movo Aviation are extensive if it were allowed legally to 

engage in these activities in a commercial context. The LLC has the capability within its 

resources to contract with customers to operate commercial microdrones for 

demonstration purposes in a variety of practical mission environments. Because of legal 

uncertainty in the absence of regulations or an NPRM from the FAA, the LLC is at a 

significant competitive disadvantage because of its knowledge of and commitment to 

comply with the Federal Aviation Rules. 

Movo Aviation was formed and is jointly owned by Henry H. Perritt, Jr. and Eliot O. 

Sprague.

Henry H. Perritt, Jr., the Managing Member of the LLC, is a law professor and former 

dean at Chicago-Kent College of Law, the law school of Illinois Institute of Technology. 

Holding a bachelor of science degree in aeronautics and astronautics from MIT, a 

master of science degree in management from MIT’s Sloan School, and a juris doctor 

degree from Georgetown University Law Center, Mr. Perritt has written dozens of law 

review articles and several books on how the law should adapt to technological 

innovation. He also is an expert on the federal regulatory process, having written many 

articles on the subject, having served as an official in the federal wage and price control 

program, as a member of the White House Staff, and as Deputy Under Secretary of 

Labor. As a consultant to the Administrative Conference of the United States, he wrote 

reports on, among other things, the utility of negotiated rulemaking, in which affected 

interests and regulatory agencies collaborate in developing the content of new rules, 

and on the process for adjudicating civil penalties under the Federal Aviation Act. He is 

a private helicopter and airplane pilot.

Eliot O. Sprague is Director of Operations and Chief Pilot of the LLC. He is a full-time 

news helicopter pilot, helicopter flight instructor, director for a Chicago-area ondemand commercial helicopter operator, and a member of the board of directors of 

Midwest Helicopter Association. A graduate of Hillsboro flight school, he is intimately 

familiar with commercial aviation and familiar with the threats that unregulated 

microdrone flight present to the safety of himself, his coworkers, his passengers, and to 

persons and property on the ground. He holds commercial helicopter and airplane, 
4

instrument helicopter, commercial flight instructor-rotary wing, and commercial flight 

instructor – instrument-rotary wing ratings.

Through the LLC, Messrs. Perritt and Sprague have flown a variety of microdrones and 

are now constructing a larger one for which they have applied to the FAA for a special 

certificate of airworthiness/experimental so that they can conduct more extensive flight 

tests and data collection in the commercial context to understand more concretely their 

capabilities, the challenges they present to operators, and the risks they pose to other 

aviators and to the general public.

They have co-authored a number of articles over the past several months on microdrone

technologies and their application as microdrones are integrated into the National 

Airspace System.

Nature of the problem

The 26 June 2014 DOT inspector general's report1 concludes that the FAA is way behind 

in meeting at statutory mandate to integrate drones into the National Airspace System. 

"[I]t . . . remain[s] unclear when, and if, FAA can meet its goals to safely integrate UAS."

2

Fulfilling its mandate to integrate small unmanned aircraft system of the national 

airspace system confronts the FAA with two clashing realities. First, unregulated 

operation of these vehicles poses serious hazards to the flight of other aircraft and to

persons and property on the ground. But second, these flight vehicles are consumer 

products priced at levels that almost anyone can afford. They are obviously useful and 

have already been purchased in great numbers on the open market, through ecommerce and more traditional channels, and are being flown widely.

While the FAA has consistently reiterated its position that such microdrone operation is 

illegal until the FAA establishes a regulatory framework, and has levied a few civil 

penalties and sent a number of cease-and-desist letters, the FAA's position has had little 

 

1

 Office of Inspector General, FAA Faces Significant Barriers to Safely Integrate Unmanned Aircraft Systems 

into the National Airspace System, Report Number: AV-2014-061 (June 26, 2014), 

http://www.oig.dot.gov/sites/dot/files/FAA%20Oversight%20of%20Unmanned%20Aircraft%20Systems%

5E6-26-14_0.pdf [hereinafter "Inspector General Report").

2

 Id. at 16 (emphasis added).
5

discernible effect. Vendors continue to sell them and ordinary people lacking airmen 

certificates continue to fly them.

The most urgent problem is presented by rotary-wing microdrones, weighing 10-20 

pounds. These are the vehicles being purchased online from a wide variety of vendors 

by individuals lacking any connection with the safety-oriented and FAA-rulecompliance culture of the aviation community.3 Fixed-wing microdrones have far less 

utility, and therefore are less popular. Machodrones will cost more, require more 

elaborate traffic separation systems, and are more likely to be operated within the 

organizational and licensing infrastructure for manned aircraft. Their prices will place 

them beyond reach of the casual consumer or small business.

The Inspector General’s report appropriately criticizes the FAA’s unreasonably coarse

classification of drones.

4 The greatest threat arises from operation of inexpensive

rotorcraft at the low end of the weight and flight-capability spectrum. Within the last 

few days a New York police helicopter nearly collided with a microdrone flying at 2,000 

feet.5

This is where the FAA most urgently needs to focus its attention. 

Authority to regulate

The FAA has authority to regulate microdrones under 49 U.S.C. § 44701(a) (prescribing 

standards for aircraft); 49 U.S.C. § 40109(b) (authority to grant exemptions); 49 U.S.C. § 

44701(f) (same); and 49 U.S.C. sec. 44711(a)(1) (prohibiting operation of civil aircraft 

without an airworthiness certificate.

 

3

 See Larry Celona, 2 Drones in near-miss with NYPD chopper, N.Y. Post, July 7, 2014, 

http://nypost.com/2014/07/07/two-drones-in-near-miss-with-nypd-copter-over-gwb/ (quoting sources that 

report drone flights at 2,000 and 5,000 feet by a microdrone purchased for $500-$700).

4

 Inspector General Report at p. 8.

5 Larry Celona, 2 Drones in near-miss with NYPD chopper, N.Y. Post, July 7, 2014, 

http://nypost.com/2014/07/07/two-drones-in-near-miss-with-nypd-copter-over-gwb/ (quoting sources that 

report drone flights at 2,000 and 5,000 feet).
6

Section § 44701 and 44704 of Title 49, 6 and section 333 of the 2012 Act give the FAA

sufficient flexibility to address these risks in light of the difficulties of regulating 

microdrones with its traditional approaches. In Holbrook v. United States,

7

the court of 

appeals reiterated the breadth of the FAA's authority under section 44701. The court 

quoted the Supreme Court's opinion in Varig Airlines,

8

that the agency is entitled, under 

the statute, to “establish and implement a mechanism for enforcing compliance with 

minimum safety standards according to its judgment of the best course."9 Further 

quoting Varig, the court deferred to the FAA's balancing of such policy considerations 

as “the goal of air transportation safety and the reality of finite agency resources.”10 The 

Supreme Court has recognized that the FAA has flexibility to select a regulatory 

enforcement method that takes into account its limited resources.11 Rather than 

withholding action until its statutory authority can be clarified by the Congress, the 

FAA should act now under its existing authority. Then, if its authority is challenged 

 

6

 “(a) Promoting safety.--The Administrator of the Federal Aviation Administration 

shall promote safe flight of civil aircraft in air commerce by prescribing--

(1) minimum standards required in the interest of safety for appliances and for the 

design, material, construction, quality of work, and performance of aircraft, 

aircraft engines, and propellers.” 49 U.S.C. § 44701.

49 U.S.C. § 44704 generally is interpreted to prohibit the manufacture of an aircraft until 

it has received a type certificate, although the section does not explicitly impose such a 

prohibition. "A manufacturer wishing to introduce a new type of aircraft must first 

obtain FAA approval of the plane's basic design in the form of a type certificate." 

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 

797, 805 (1984). "[B]efore introducing a new type of aircraft, a manufacturer “must first 

obtain FAA approval of the plane's basic design in the form of a type certificate." 

Holbrook v. United States, 673 F.3d 341, 343 (4th Cir. 2012).

7

 673 F.3d 341 (4th Cir. 2012) (rejecting challenge to FAA’s grant, then suspension, of 

airworthiness certificate for helicopter type).

8

 Varig Airlines, 467 U.S. at 816 (characterizing FAA's broad discretion in rejecting 

Federal Tort Claims Act claim).

9

 673 F.3d at 346.

10

 673 F.3d at 346.

11 See Varig Airlines, 467 U.S. at 806-807 ("With fewer than 400 engineers, the FAA 

obviously cannot complete this elaborate compliance review process alone.")
7

successfully in judicial review, it can approach the Congress with a narrower set of 

statutory clarifications, tailored to actual difficulties.

The Consumer Product Safety Commission (“CPSC”) prohibits sales of certain 

manufactured goods not meeting safety standards—the approach urged by the Petition 

and this Memorandum--but the Commission lacks the authority to regulate aircraft and

aircraft systems because of a specific exclusion from the definition of "consumer 

product." 12

If, however, model aircraft are excluded from the definition of "aircraft" as the ALJ 

decision in the Pirker case reasons, the CPSC does have authority to regulate them, 

because only “aircraft” are excluded from the CPSC’s jurisdiction... The FAA and the 

CPSC could move forward in tandem, with the FAA prohibiting the sale and 

distribution of commercial microdrones not meeting the prescribed limitations for small 

unmanned "aircraft," while the CPSC prohibits the sale and distribution of recreational 

hobbyist vehicles not meeting the same requirements.

 

12

 “§ 2068. Prohibited acts

“(a) It shall be unlawful for any person to--

(1) sell, offer for sale, manufacture for sale, distribute in commerce, or import into the 

United States any consumer product, or other product or substance that is regulated 

under this chapter or any other Act enforced by the Commission, that is not in 

conformity with an applicable consumer product safety rule under this chapter, or any 

similar rule, regulation, standard, or ban under any other Act enforced by the 

Commission.” 15 U.S.C.A. § 2068

15 U.S.C. § 2052(5)(F) excludes from the definition of "consumer product" subject to 

CPSC regulations “aircraft, aircraft engines, propellers, or appliances (as defined in 

section 40102(a) of Title 49).”
8

Enforcement of traditional FAA rules is infeasible

The regulatory approach traditionally pursued by the FAA to regulate manned aircraft 

is unsuitable for regulating consumer products like microdrones. Manned aircraft are 

expensive capital goods. The size of the necessary investment by operators and the 

essentiality of valid pilot certificates for the careers of professional pilots provide strong 

incentives to comply with FAA regulations. These incentives are entirely lacking in the 

microdrone environment.

Given the relatively small size of these flight vehicles compared to manned aircraft, the 

small geographic scope of their operational capabilities, and their proliferation, it is 

unrealistic to think that the FAA ever could marshal enough enforcement resources to 

detect every violation of its current prohibition.

The FAA should regulate microdrones as consumer products

The FAA must treat microdrones as what they are: inexpensive consumer products that 

put strikingly useful technologies within the reach of almost everyone. The FAA must 

recognize that it is regulating something that is available off-the-shelf at very low 

prices. In other words, the economic barriers to entry are quite low. People purchasing 

microdrones are likely to be individuals and small businesses not now in the aviation 

industry. If they are confronted with a regulatory process designed for type certification 

of the 787 or the Diamond Twin Star or licensing requirements for instrument-rated 

medevac helicopter pilots, they are more likely to take the outlaw route. The average 

person purchasing a microdrone does not have the means for such certification. This is 

especially true because the dangers facing the operator are minimal and do not pose 

significant risk to the individual flying the microdrone to provide an incentive to incur 

the cost for certification. Thus, the regulatory process needs to be much simpler.

A fundamentally different approach to regulation, new to the FAA, but proven in the 

context of other federal consumer product safety regulation, would enhance the degree 

of compliance with reasonable requirements and ease the burden on FAA rulemaking 

and enforcement resources.

The agency should take advantage of the capabilities of microdrone technology to 

enforce certain limits on flight profiles autonomously. Such an approach would focus 

FAA energy on defining what limits should be built into drones commercially 
9

marketed, relieving it of detailed regulation of airmen and detailed flight rules to be 

enforced in the conventional way. 

The FAA has very broad authority for safety regulation under 49 USC §§ 44701 and 

44704. Traditionally, it has focused on the operation of aircraft rather than their sale and 

distribution. Aviation regulation traditionally has stood on three pillars: certification of 

aircraft, certification of airmen, and rules for flight operations. Aircraft certification

imposes detailed requirements on vehicle design and manufacture. Airmen certification 

allows for requiring defined skills and knowledge of personnel who operate and 

maintain aircraft. Flight rules specify how certificated airmen can fly certificated 

aircraft.

Requirements in the three areas are interrelated. For example, more demanding airmen 

requirements can compensate for more relaxed vehicle requirements; a highly skilled 

pilot can fly a poorly behaved aircraft safely, while only well-behaved aircraft should be 

flown by pilots with ordinary skills. And more restrictive flight rules can compensate 

for simpler airmen or vehicle requirements. For example, section 61.101 of the FARs 

prohibits recreational pilots from carrying more than one passenger and from flying 

more than 50 miles from the airport of origin, unless the pilot has received additional 

instruction. FAR section 91.319 imposes flight restrictions such as VFR-day only on 

experimental aircraft unless they meet additional certification requirements.

Microdrones, however, present regulatory challenges not presented by manned

airplanes and helicopters, for the reasons developed in the preceding paragraphs.

Despite their unique challenges for effective regulation, they present safety risks to air 

commerce at least as great as those presented by manned aircraft. 

The capability of microdrones to restrict their flights opens up new possibilities for 

regulation. Most microdrones already on the market have some capability to hover 

autonomously. Many can also take off, land, orbit a GPS waypoint, return to home 

autonomously, and be programmed to stay within an envelope defined by maximum

height AGL, maximum radius, and maximum speed. 

The FAA should embrace this self-enforcement capability rather than engaging in the 

line-by-line adaptation of existing rules. It should think of microdrones as the consumer 

products that they are.
10

If a microdrone is designed and manufactured so that it will not operate outside of 

flight parameters specified by FAA rules for approval, detailed regulation of operators 

is unnecessary; they simply will be unable to fly their vehicles in violation of the rules; 

the vehicle will not comply with an illegal command.

Likewise, if the commercially marketed microdrones are incapable of operating outside 

the rules, the number of rule excursions by vehicles needed to be detected by the FAA

enforcement arm will be greatly reduced.

While many purchasers of microdrones assemble them from kits, they mostly use 

standard components developed and manufactured by a dozen or so vendors of 

components. Few operators have the capability to design and build these core 

components – power distribution boards, flight control boards, and GPS navigation--

boards from scratch. Accordingly, even the kit portion of the market can be made safer 

by the proposed approach; flight control and GPS navigation control boards cannot be 

sold unless they meet the proposed requirements.

Proposed contents of the rule

14 C.F.R. Aeronautics and Space

Subchapter C

Part 50

§ 50.101 Marketing of small Unmanned Aircraft Systems.

(a) Except as provided elsewhere in this section, no person shall sell or lease, or offer for 

sale or lease (including advertising for sale or lease), or import, ship, or distribute for the 

purpose of selling or leasing or offering for sale or lease, any small Unmanned Aircraft 

System unless the System complies with the technical standards of subsection (b) and 

also complies with all applicable administrative (including verification of the equipment 

or authorization under a Declaration of Conformity, where required), technical, labelling 

and identification requirements specified in this chapter.

(b) Performance requirements

Each small Unmanned Aircraft System must have these limitations programmed into it, 

beyond the control of the operator to override the limitations:
11

(1) Restricting flight to heights no greater than 400 feet above the surface;

(2) Restricting flight to horizontal distances no greater than 1,500 feet from the ground 

control station;

(3) Excluding flight in Class B, C, or D airspace; and

(4) Ensuring that the flight vehicle autonomously returns to its launching point if the 

control link is lost

Other federal agencies successfully use this approach

Proven models exist for regulating consumer products like microdrones by prohibiting 

their introduction into the marketplace unless they incorporate basic limitations on their 

operation. Other agencies have proven the practicability of regulating consumer 

products by prohibiting offering them in the marketplace unless certain safety features 

are built in.

The FAA should imitate the Federal Communications Commission’s (“FCC”) regulation 

of WiFi routers and cellphones, or the Consumer Product Safety Commissions, 

regulation of lawnmowers. 

The FCC uses this approach to mitigate the risks of Wi-Fi networking. The FCC makes

certain blocks of radio frequency spectrum available on an unlicensed basis for wireless 

networking of computers. In this regulatory regime, users of the technology need not 

obtain radio operator licenses, as they must for many other wireless services. Operating 

rules exist, but rather than being enforced directly, by FAA inspectors, or through radio 

operator licensing to assure that operators understand the regulations, the operating 

rules are internalized into the hardware. The requirements for hardware certification 

manage the risk of interference from the radio equivalent of a midair collision – though

usually with less risk to human life and property – by limiting transmitter power and 

the requiring software to behaves in a certain way when the device detects a conflicting 

signal.

Wireless routers and the Wi-Fi transceivers and antennas built into almost every 

desktop and laptop computer must, before they can be offered in the marketplace, be 

certificated by the FCC. Indeed one can see the representation of certification engraved 
12

or otherwise affixed to such devices. In other words, it's not possible for the hardware 

to violate the operating rules unless one modifies it – a far from trivial process. 

A growing consensus defines the particular limitations that should be 

built in to microdrones

Some aspects of a gradually forming consensus are sound. Most fundamentally, 

microdrones should be confined to certain spaces where they are less likely to 

encounter manned aircraft. But how should these spaces be defined?

The most basic rules to be encoded into microdrones are largely agreed on. First, a 

height limit is necessary to keep microdrones away from the airspace in which manned 

aircraft fly most of the time. Under the proposed approach, legal microdrones must 

have a navigational mechanism—a combination of barometric pressure sensors

(altimeters)) and GPS navigational systems--that would not permit them to fly more 

than 400 feet above ground level.

Second, microdrones can be flown only within line of sight. In order to keep them 

within line of sight and within wireless control-link range, microdrones must have a 

built-in radius limit of, say, 1500 feet horizontally from the DRoneOPerator (“DROP”). 

As a further prerequisite for certification, microdrones must have a return-to-home 

feature that could be triggered by the DROP and which would be automatically 

triggered by loss of signal. This also might be triggered by an indication that the DROP

has become inattentive, kind of like the "dead man control” on railroad locomotives 

(more formally known as “alerters”).

Specific airspace restrictions also could be enforced. Relatively inexpensive moving 

map systems for manned aircraft automatically alert pilots that they are about to enter 

controlled airspace. The same geospatial referencing algorithms could be used to 

prevent microdrones from flying into Class B, C, or D airspace.

Once a microdrone meets these requirements and is type certificated by the FAA, it 

could be offered for sale through any channel. A potential operator could buy one on 

Amazon or elsewhere, take it out of the box, and fly it for whatever purpose, without 

having to worry about compliance with FAA rules. Compliance would be built-in.
13

To be sure, no regulatory system encounters 100% compliance, but the incidence of 

noncompliance is a function of the incentives for noncompliance, and the ease of 

noncompliance. If the microdrone type certification requirements strike a reasonable 

balance between legitimate safety concerns and productive utility, few purchasers of 

these vehicles would have a significant incentive to corrupt their vehicles so they would 

become outlaws. 

Furthermore, the vehicles themselves can be made extremely difficult to corrupt. 

Modifying a wireless router to operate on a different set of frequencies from those for 

which it is designed is quite different from cutting off the tailpipe of a hotrod, or taping 

down the blade control on a lawnmower.

If a smartphone is designed to resist user modifications, only those with significant 

technical knowledge, and a gentle touch can override design features. The same thing is 

true of consumer-oriented wireless networking devices. Causing an off-the-shelf 

wireless modem to transmit on the ILS frequency of a nearby airport is not easy. Just as 

important, why would anyone want to do it?

Furthermore, while it might be overkill, microdrones could be programmed to detect 

tampering and create a log that could be used as evidence against those who tampered, 

basically building off the same idea as theft protection and recovery protocols built into 

smartphones.

This approach is far better suited to regulation of consumer products—which 

microdrones already are—than a more traditional approach, designed around 

expensive airplanes and helicopters, which are not bought online, used, and discarded 

casually.

The proposed rule will enhance compliance

While it might seem that the adoption of the proposal would merely add another 

unenforceable layer to the status quo, this is not so. The present prohibition can be 

enforced, if at all, only by the FAA’s detecting actual operations of microdrones for 

commercial purposes. The proposed regulation would permit the FAA to focus its

enforcement resources on fewer than a dozen major vendors. The compliance incentives 

are greater for vendors than they are for the undifferentiated mass purchasers and 

operators.
14

Vendors have significant incentives to meet the requirements in a robust and reliable 

way. A vendor delivering unreliable systems would be subject to substantial liability 

under ordinary tort law. The existence of the FAA performance standards would 

represent the standard of care a manufacturing vendor must meet in order to avoid 

liability, under the well-known doctrine of negligence per se.

The proposed regulation will accommodate reality much better than the status quo or a 

traditional set of regulations for the place after years of development. Rule compliance 

always is greater when prohibitions or limitations are congruent with market and 

technological realities.

The proposed rule eliminates the troublesome distinction between 

“model aircraft” and small Unmanned Aircraft

The proposed approach fully satisfies the statutory safe harbor for model aircraft, in § 

336 of the 2012 Act, which prohibits regulation of model aircraft meeting certain 

conditions. Under the proposed rule, model aircraft meeting the statutory definition 

could be sold and flown, without further regulation; the proposal simply ensures that 

all microdrones, whether intended to be flown for commercial or recreational purposes,

meet the statutory definition of model aircraft. When they do, their operations would 

not be regulated otherwise.

Prompt issuance of an NPRM will permit crystallization of specific issues 

and options for their resolution

The longer it takes for the FAA to get rules in place prescribing design characteristics 

for microdrones, the more of them not meeting these requirements there will be. It is 

not feasible for the FAA to establish a sufficiently pervasive enforcement presence to 

stop the noncompliant vehicles from flying. Eventually, attrition of existing 

microdrones will increase the percentage of compliant microdrones and reduce the 

percentage of noncompliant ones. Noncompliant microdrones will be destroyed, 

damaged, abandoned or replaced with newer models containing better technology and 

complying with FAA requirements. Time is of the essence, however.

Enough information exists now in the literature and in the contents of this Petition and 

supporting Memorandum to permit the FAA to issue an NPRM within a matter of 

weeks. Not all of the issues can be resolved concretely, but issuance of an NPRM will 
15

frame useful participation by the FAA and its affected interests to narrow the issues and 

develop the details.

Following this approach does not mean that the FAA must make detailed design

decisions itself. It can, instead, embrace a performance-based regulatory approach in 

which it accepts manufacturer representations as to standards compliance, much as the 

FCC does under its procedure for Wi-Fi equipment.

Nor is a protracted period necessary to develop detailed design specifications for 

microdrone flight control systems. The limitations simply can be stated as performance 

requirements, allowing vendor designers to come up with their own technologies for 

meeting the requirements. 

There would, no doubt, be a period of evaluation of the rule, which might expose a 

need for further refinement or supplementation. This reality, should not, however, hold 

the FAA back. A straightforward requirement that everything on the market be

autonomously law-abiding would represent a substantial improvement over the status 

quo.

The petitioners are not alone in pressing for speed and a new direction.

Most aviation advocacy organizations joined in a letter to the FAA administrator urging 

him to accelerate release of an NPRM and to allow greater flexibility in the meantime.13

Press and media organizations filed an amicus brief in the Pirker case, arguing that the 

current prohibition on news gathering operations of microdrones violates the First 

Amendment of the United States Constitution.14

Litigation over the FAA's position and inaction on rulemaking is spreading, down from 

the National Transportation Safety Board to the states Court of Appeals in the 11th and 

second circuits. An administrative law judge (“ALJ") at the National Transportation 

Safety Board (“NTSB”)15 has invalidated the FAA's blanket prohibition, and press and 

 

13

 http://higherlogicdownload.s3.amazonaws.com/AUVSI/958c920a-7f9b-4ad2-9807-

f9a4e95d1ef1/UploadedFiles/Joint%20Letter%20to%20FAA%20on%20Expediting%20UAS%20rulemaking

%20Final.pdf

14

 http://www.dronejournalism.org/news/2014/5/american-news-media-coalition-files-brief-in-supportof-pirker-first-amendment-rights

15

 The NTSB hears appeals of civil penalties imposed by the FAA.
16

media advocates have filed an amicus brief with the full NTSB in conjunction with its 

review of the ALJ decision, arguing that the ban on newsgathering use violates the First 

Amendment’s guarantee of freedom of the press.

MODOVOLATE AVIATION, LLC

By

(s) Henry H. Perritt, Jr.

Henry H. Perritt, Jr.

1131 Carol Lane

Glencoe, IL 60022

(312) 504-5001

hperritt@gmail.com

its

General Counsel
2

4. In the absence of any regulatory framework, microdrones are 

being sold on the open market through e-commerce and 

otherwise and are being bought in large numbers and 

operated by persons without airmen certificates.

5. These microdrones weigh from less than one pound to close 

to fifty pounds and have flight characteristics that make 

them a hazard to other aircraft in flight and to persons 

and property on the ground.

6. A regulatory framework for these flight vehicles is 

urgently needed to reduce the risks.

7. These vehicles, with their low prices and ready 

availability, have the obvious potential to extend the 

reach of air commerce, with many economic and social 

benefits, including those to domestic law enforcement and 

antiterrorism activities, journalism, agriculture, public 

utility infrastructure protection, real estate sales, and

aerial surveying.

8. The FAA is mandated by 47 U.S.C. § 40104(a) to encourage 

the development of civil aeronautics as well as to promote 

the safety of air commerce.

9. The low cost of acquisition and operation of these flight 

vehicles make it certain that they will proliferate far 

beyond any conceivable level of FAA resources necessary to 

enforce traditional airmen certification and flight rule 

requirements against their operators.

10. The failure of the FAA to provide for the operation of 

microdrones is leading to an increasing threat to aviation 

safety, because non-airmen are buying them by the hundreds 

and flying them, ignorant or indifferent to the FAA 

prohibition.

11. Many of those buying these vehicles have no prior 

connection to the aviation community and therefore lack the 

cultural commitment of the traditional aviation community 

to follow safe practices and to be mindful of FAA rules

12. The artificial distinction between model aircraft 

flown for hobbyist and recreational purposes and the same 
3

aircraft flown for commercial purposes endangers aviation 

safety because many model aircraft operators fly their 

vehicles at high altitudes and outside the line of sight 

13. The FAA’s simple classification that distinguishes 

drones weighing more than 55 pounds and those weighing less 

is inadequate. A further distinction should be drawn 

between rotary-wing and fixed-wing aircraft and aircraft at 

the smaller end and those at the higher end of the “small 

Unmanned Aircraft Systems” category.

14. The FAA’s apparent preoccupation with operations of 

larger fixed wing drones distracts its attention and 

diverts its energies from the activities posing the 

greatest threat to safety.

15. Accordingly, the FAA should regulate microdrones as 

consumer products, using models proven by other federal 

agencies such as the Federal Communications Commission, the 

Consumer Product Safety Commission, and the national 

Highway Traffic Safety Administration for other consumer 

products. These models impose requirements for autonomous 

vehicle behavior as a prerequisite for marketing them.

16. Such an approach greatly reduces the burden on the FAA 

that would otherwise result from detailed development, 

promulgation, and enforcement of specific flight rules and 

airmen certification requirements.

17. Promulgating the proposal quickly would have the 

effect of shifting the burden of detailed engineering 

design to manufacturers and vendors.

WHEREFORE 

18. Petitioner asks that the FAA act immediately to 

release an NPRM proposing to regulate small unmanned 

aircraft systems as consumer products by requiring, as a 

precondition for sale, that they automatically limit height 

above ground, automatically limit range from the operator, 

and provide reliable capabilities automatically to land 

safely or to return to the launching point if the control 

link is interrupted, the flight vehicle approaches Class B, 

C, or D airspace, or the operator is incapacitated.
4

19. Petitioner requests that the text of the proposed rule 

be as follows:

14 C.F.R. Aeronautics and Space

Subchapter C

Part 50

§ 50.101 Marketing of small Unmanned Aircraft Systems.

(a) Except as provided elsewhere in this section, no person 

shall sell or lease, or offer for sale or lease (including 

advertising for sale or lease), or import, ship, or 

distribute for the purpose of selling or leasing or 

offering for sale or lease, any small Unmanned Aircraft 

System unless the System complies with the technical 

standards of subsection (b) and also complies with all 

applicable administrative (including verification of the 

equipment or authorization under a Declaration of 

Conformity, where required), technical, labelling and 

identification requirements specified in this chapter.

(b) Performance requirements

Each small Unmanned Aircraft System must have these 

limitations programmmed into it, beyond the control of the 

operator to override the limitations:

(1) Restricting flight to heights no greater than 400 feet 

above the surface;

(2) Restricting flight to horizontal distances no greater 

than 1,500 feet from the ground control station;

(3) Excluding flight in Class B, C, or D airspace; and

(4) Ensuring that the flight vehicle autonomously returns 

to its launching point if the control link is lost

20. If the FAA issues an NPRM within 45 days of the 

submission of this petition, petitioner withdraws this 

petition and submits it and its supporting documentation as 
5

a comment on the NPRM to be made part of its rulemaking 

docket. 

Submitted 9 July 2014

MODOVOLATE AVIATION, LLC

BY

(s) Henry H. Perritt, Jr.

Henry H. Perritt, Jr.

its General Counsel