Drone Registration: A Question of Policy vs. Process

I often find myself in debates with smart people – people I like – who don’t understand the distinction between the merits of a particular government policy and the question of whether the government has the power to enact that policy.  To pick a recent example, you may think that preventing hunters from killing bear cubs in Alaska is a great idea.  Whether the government – especially, the Executive Branch, acting without statutory authority – has the power to enact such a ban is a question that many would regard as beside the point.  Those who question the Executive’s power to protect bear cubs obviously hate bear cubs.

Based on the tenor of articles like this one in today’s Washington Post, the FAA’s drone registration rule is the Alaskan bear cub of the moment.  Stakeholders are livid at John Taylor for having the temerity to question authority.  A spokesman for AUVSI (an organization in which I have been a member), seems rather beside himself:

Why do we have restrictions? Because we don’t want a drone ingested into an aircraft engine,” said Brian Wynne, a licensed pilot and president of the Association for Unmanned Vehicle Systems International, a leading industry group based in Arlington, Va.

Wynne said putting registration numbers on all aircraft should be seen as a basic safety requirement. But that was part of what was overturned by Taylor’s challenge.

“We have to have rules,” Wynne said.

I feel Mr. Wynne’s pain.  Really, I do.  Stakeholders who have invested so much in their drone businesses no doubt feel put upon by a regulatory regime that imposes high barriers to entry on them, while imposing very few restrictions on those who engage in the very same activity for personal pleasure.  A drone registration requirement for all seems only fair.

But, as Mr. Wynne said, “We have to have rules.” And first among those rules must be the rule of law.  Congress expressly prohibited the FAA from regulating model aircraft.  The FAA’s drone registration rule violated that unambiguous prohibition.

John Taylor was just the boy who pointed out the emperor’s lack of clothing.

Part 107 is finally out!

I always seem to be in a remote location with limited access to the internet whenever important news breaks.  Of course, today’s release of Part 107 was expected.  It was also expected that there would be few surprises, but there are some things that are worth noting:

While the altitude restriction is 400 ft AGL as opposed to 500 ft, you can fly higher if you are within 400 feet of a taller structure.  This makes sense when considering the number of drones that will be used for things like cellphone tower inspections.

The FAA will create a portal to apply for waivers of restrictions.

The FAA is creating a new certification, called “Remote Pilot Airman” certificate.  The good news is that the operator does not need to have the certificate as long as he is operating under the direct supervision of someone who does.  We are waiting to see what the aeronautical knowledge test will consist of.

While the FAA concedes that it does not regulate privacy issues, it intends to come out with some “best practices” on privacy.  It remains to be seen what those will be.

Of course, once the rule goes into effect, a Section 333 exemption will no longer be necessary to comply with what the FAA says is required to operate commercially.

For regular updates and commentary, on Part 107 and on other matters, follow us on Twitter at @dronelawdotcom.

 

Is Gun Drone Teen’s Challenge to FAA Subpoena Legally Sound?

Jason Koebler has another useful and informative story on a current development in the area of drone law.  This one concerns the “gun drone” teenager, Austin Haughwout, and he and his family’s challenge to an FAA subpoena demanding, among other things, “photographs and video, receipts for the flamethrower, YouTube audience, advertising, and monetization information. . . .”

The FAA is petitioning a federal judge to enforce its subpoena, which included a subpoena for depositions in New Haven.  The Haughwout’s opening brief in response (which cites this blog in a footnote) raises two arguments: (1) the FAA exceeded its regulatory authority by defining drones as “aircraft”; and, or alternatively, (2) the subpoena is unconstitutional as applied under the Commerce Clause of Article I.

For reasons that we discussed in this post and this post in the wake of the decision of the NTSB administrative appeals court in Pirker, this looks like a steep hill to climb.  Taking the second argument first, the Supreme Court practically slammed the door shut on limits to the Commerce Clause in Gonzalez v. Raich.  As we said here, the real question these days is, where does the Commerce Clause not extend?

Or, perhaps it would be more appropriate to ask, will the courts ever meaningfully limit the reach of the Commerce Clause? The Court did draw a line in National Federation of Independent Business v. Sebelius, but it was essentially rendered meaningless by the Court’s more memorable, alternative ruling that the Obamacare mandate could be construed as a tax.

Thus, unfortunately, the trend has been against the Haughwouts and, in any event, a court will decline to rule on a Constitutional question that can be resolved by statutory interpretation.  It would therefore take a judge of extraordinary courage to tell the FAA that is has overstepped its Constitutional bounds.

This brings us to the first question raised in the Haughwouts’ brief: Has the FAA overstepped its statutory authority by defining drones as “aircraft”?  The argument centers on the FAA’s interpretation of its “organic statute” at 49 U.S.C. §40101, and whether the FAA has overreached by defining drones as “aircraft”.  It also relies on a critique of the NTSB decision in Pirker II as having been wrongly decided.

This isn’t a bad question to raise.  Since the Pirker case settled, the question never went before an Article III court, and therefore remains unresolved.  Given that the question is to be argued at a hearing on July 6, I will not comment on the merits of this argument.

Surprisingly, we can find no discussion of FMRA Section 336, which bars the FAA from promulgating any regulation regarding model aircraft, the only exception being that nothing in Section 336 “shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”

We’re sure that the Haughwouts’ attorneys had good reasons for omitting any discussion of Section 336, but it’s certainly something that we would have considered raising.  The statute clearly evidences an intent by Congress to limit the FAA’s enforcement authority to threats to the NAS.  A battery-powered drone, being operated just above ground in a privately-owned forest, does not seem like a threat to the NAS, gun or no gun, flamethrower or no flamethrower.

Mr. Koebler correctly thinks that this might be the most important drone law case currently pending.

The story is also covered here by Ars Technica.

Who Is Being Fined By the FAA?

Jason Koebler of Motherboard made good use of FOIA and put together some useful information in a series of articles that are worth reading in detail:

Here, he reports on a list of every drone pilot that has ever been fined by the FAA:

The documents the FAA sent me show that the fine for flying a drone recklessly vary wildly: Some hobbyists have settled with the FAA for as little as $400, while others, such as the man who crashed his drone on the White House lawn, have paid as much as $5,500.

More commonly, the FAA fines people between $1,100 and $2,200 and, if it receives pushback, offers to settle for much less. Commercial operators have been fined as much as $1.9 million.

Among the interesting facts he reports is that the vast majority of fines are coming from the FAA’s Eastern Regional office.  What is it about the East Coast that makes it special? Tall buildings? More media attention?

I don’t want to detract from the excellent work, here, so go and read the whole thing.

Another article reports on the only licensed manned aircraft pilot in America who has had his license suspended (not revoked – the headline editor apparently doesn’t know the difference) for flying a drone.  Incredible.

The third article notes that the FAA has yet to fine anyone for flying commercially.  This may seem surprising, but it’s really not.  Koebler asked a former FAA counsel:

Loretta Alkalay, who was in charge of the FAA’s legal operations for the eastern region for more than 20 years, told me that the documents I showed her suggest the FAA doesn’t think it has legal standing to win a case that doesn’t involve reckless flight.

“I think it’s pretty obvious the FAA doesn’t think it can win a case on this whole commercial issue, which is why they haven’t really pushed it,” Alkalay told me.

That is probably why the FAA seems to treat FAR 91.13 as a catch-all for seeking fines against drone operators, but only sends cease and desist and educational letters to persons who are operating commercially without a Section 333.

About that handgun-firing drone

A knucklehead in Connecticut has caused quite the media firestorm over his video of a semi-automatic handgun being fired from a small drone.  I have received some media inquiries about whether it is legal or not.  The answer is that it depends.

Based on the video, it appears that this occurred on private property, away from any buildings or people.  The FAA does not seem to have a regulation that would prohibit discharging a firearm from a drone under those circumstances.

The closest thing you will find is FAR § 91.13, which prohibits the reckless operation of an aircraft (the FAA relied on this section in the Rafael Pirker case), and § 91.15, which prohibits dropping objects from an aircraft.  But both regulations apply only where the activity poses a danger to life or property.  That does not appear to be the case, here.

The more likely resource for determining the legality of this particular drone would be state law governing the handling and discharge of firearms.  These regulations vary by state, but in general one would look to whether a firearm was discharged in a reckless manner that posed a danger to others, or in a built-up area or an area zoned for housing.  You can review Florida’s law, here.

Does this presage the weaponization of private drones?  I doubt it.  The video seems to vindicate something I wrote back in October:

[A] small drone is unlikely to be a useful weapons platform. As anyone who has fired a gun can attest, the kickback from discharging a firearm would be just as likely to send a small drone tumbling out of the sky as it would be for the drone to hit its intended target.

The video proves the point.  The operator does not have any reasonable semblance of control over the weapon, and at one point he clearly seems to be downrange of the weapon.  That’s a big no-no among gun owners.

Having said that, I could foresee someone developing an “FPV drone paint-ball” war game (patent pending).  Where that would fit with FAA regulations and state firearms law might be a topic for another post.

Has the FAA Claimed Jurisdiction Over Indoor Airspace?

Words have consequences.

Recently, I reported on remarks from a panel of experts on sUAS integration at the AUVSI expo in Atlanta. One of the more interesting comments came from the FAA’s director of sUAS integration, James Williams, who said that navigable airspace is wherever an aircraft can safely operate. And because Congress chose to define sUAS as “aircraft” in the FMRA, anywhere a small drone could fly safely is, therefore, navigable airspace.

The FAA uses this tautology to justify its claim of jurisdiction over all airspace, from the ground up, regardless of whether a discrete area is surrounded by trees or buildings that would make navigation impossible for a manned aircraft. But the weakness in this argument becomes apparent when taken to its logical conclusion, that the FAA may also claim jurisdiction over indoor airspace.

I have heard from a number of commercial operators who have been hired to conduct inspections inside of large warehouses, for example.  We also know, based on public comments, that Amazon has been testing its PrimeAir drones in the U.S. in enclosed spaces. Obviously, these are spaces where drones can safely operate.

So, why hasn’t the FAA claimed jurisdiction over indoor airspace?

The obvious answer is that indoor operations do not threaten the national airspace system (“NAS”) (we discussed the scope of the NAS here and here). But that just begs the soundness of the FAA’s reasoning.  The criteria should not be whether a drone can safely operate in a given area, but whether operating in a given area poses any kind of danger to the NAS.

We understand that the FAA has a difficult job to do.  But that’s no excuse for engaging in administrative overreach.

FAA Announces UAS Pathfinder Program

Everyone at AUVSI’s Unmanned Systems 15 expo waited on needles and pins for the FAA’s mysterious announcement, scheduled today for 11 am, EDT.  Your humble correspondent was able to crowd into the doorway of the press room and grab a few snippets.

The big takeaway is somewhat anticlimactic:  The FAA announced what it calls its “UAS Pathfinder Program” – a public/private partnership between leading companies in three business sectors – CNN, Precision Hawk, and BNSF Railway.  The latter companies will be permitted to operate beyond visual line of sight, while CNN will be permitted to operate in densely populated urban areas within visual line of sight.

The fact that the FAA seems to be favoring three selected businesses may seem disappointing to some; however, there is reason for hope.

Recall that the NPRM specifically left the door open to developing standards for BVLOS operations. The FAA sees this new initiative as an opportunity to gather data on the viability of these operations being conducted by sUAS operators.  I translate this to mean that the FAA is seriously considering an amendment to the final rule that will allow for beyond visual line of sight and for operations in densely populated urban areas.

But the FAA is nothing if not a cautious body, as we have all learned.

UPDATE: Brendan Schulman remarked  to me that the FAA is likely to take five years to gather data from this program, so he is less optimistic about seeing a BVLOS component to the pending sUAS rule. At least, he doesn’t see it happening by next year. That’s a fair point. 

FAA Undertakes Summary Grant Process for Section 333 Exemptions

The FAA is touting its “summary grant” process that allowed to issue 30, simultaneous Section 333 Exemptions, last week.  In other words, you are eligible for a summary grant if your petition looks sufficiently similar to a previously granted petition:

Although the FAA still reviews each Section 333 petition individually, the agency can issue a summary grant when it finds it has already granted a previous exemption similar to the new request. Summary grants are far more efficient because they don’t need to repeat the analysis performed for the original exemption on which they are based. Summary grants are a tool the FAA can use in all exemption areas, not just UAS.

The FAA’s experience in reviewing the Section 333 petitions shows they generally fall into two categories: film/television production and aerial data collection. Most exemptions in these categories will likely be handled through the summary grant process. For unique requests, the agency will still publish the petition in the Federal Register for public comment and will conduct a detailed analysis.

In other news:

  • The agency now allows operations under these exemptions by people who hold a recreational or sport pilot certificate. Previously, Section 333 operators were required to have at least a private pilot certificate. The newly added certificates are easier to obtain, and therefore less costly, than a private pilot certificate.
  • A third class medical certificate is no longer required.  Now, a Section 333 operator only needs a valid driver’s license to satisfy the medical requirement.  This change is consistent with the agency’s approach for sport pilot certificate holders, who may fly light sport aircraft with a driver’s license and no FAA medical certificate.

Is the FAA On a Collision Course With the First Amendment?

I’ve been pretty busy, this week, and have just gotten caught up with this story about a letter from the FAA to Tampa Bay-area drone hobbyist Jayson Hanes. The precise meaning and intent of the letter is rather more vague than the writer suggests. As Hanes himself correctly pointed out in an interview, the FAA has not demanded that Hanes cease and desist from flying, or from posting his videos on YouTube, and has not threatened any enforcement action against him.

Nevertheless, this, and another recent story of a drone hobbyist in Maine who was told by the FAA that he would have to take down his website, raise a troubling concern that the FAA may be on a collision course with the First Amendment. Matters of free speech are not within the agency’s normal purview, which might explain the naïveté of an agent seeking to challenge one’s right to post videos on the internet.  Hanes commented that the FAA “is trying to flex its muscles” in an area that it doesn’t understand.

We understand that the FAA might be having difficulty enforcing its commercial drone ban.  The agency is not equipped to handle traditional law enforcement duties.  There are no police cars with flashing lights and the letters, “F-A-A,” emblazoned on their doors.  Everyone knows that non-compliance is rampant, and that the odds of getting caught and punished are low.

But such difficulties often prove to be the undoing of police agencies across the country.  The law books are full of cases where, out of sheer frustration, law enforcement officials overreached their constitutional boundaries and violated the rights of private citizens.  Avoiding such scenarios requires training and vigilance by those charged with enforcing the law.

As Peter Sachs commented to Motherboard, “It would behoove the FAA Office of Chief Counsel to make it abundantly clear to all aviation safety inspectors that the First Amendment is alive and well.”

Of course, the agency would more easily avoid getting itself into these kinds of embarrassing public relations imbroglios if it adhered to its own definition of what constitutes a “commercial” operation – i.e., activity with a business nexus.  It simply defies logic to say that posting videos on YouTube has any sort of nexus with business activity.

Comments to the NPRM: A Roadmap to the FAA’s Thinking

Much has been written about the FAA’s NPRM for sUAS over the last week and a half. I think it’s safe to say that, while many were pleasantly surprised by the liberality of the proposed rules, most comments from the industry have been critical, particularly of the requirement for Visual Line of Sight (VLOS) and the prohibition on night operations, as well as the requirement for an aeronautical knowledge test and sUAS pilot certification.  The comments posted to date at regulations.gov have ranged from the thoughtful to the unhinged.

But before submitting comments, it is useful to understand what the FAA is thinking, and how it views the path going forward. Otherwise, even the most well-intentioned comments are likely to drift off-point. The FAA has made this task simple enough by laying out its reasoning in the first 160 pages or so of the NPRM.

The entire framework of the proposed rule can only be truly understood by taking into account what the FAA sees as two primary concerns that, in its view, are unique to UAS: (1) the ability of the operator to see and avoid other aircraft; and (2) Loss of Positive Control (i.e., a loss of communication between the vehicle and the control station).

See and Avoid:

The FAA emphasizes that the first job of an airman in avoiding collisions with other aircraft is to adhere to the “see and avoid” rule of flying. The FAA believes that pilots of manned aircraft have an inherent advantage in exercising see and avoid because they are able to use their peripheral vision from the cockpit. The agency is concerned, on the other hand, that the vision of an operator of a UAS who relies on FPV or other camera devices will be too restricted to be able to effectively see and avoid other aircraft.

The agency has considered requiring on-board see and avoid detectors, as have become standard on manned aircraft. However, it believes that, at least for now, the technology is not advanced enough, and is too heavy, for use onboard small UAS. The agency nevertheless remains open to suggestions.

One can of course raise countervailing considerations, such as the fact that a sUAS at 500 feet will be extremely difficult to see with the naked eye. Nevertheless, it would be difficult to overstate the amount of importance that the FAA attaches to this subject. Comments on the VLOS rule should respectfully take the agency’s concerns into consideration.

Positive Loss of Control:

Crash

Another point of emphasis, one that also relates to the proposed VLOS rule, is that problem of Positive Loss of Control. The problem is well-known, as evidenced by a flurry of reports of fly-away incidents, including the White House episode, last month.

The FAA believes that the risk of PLoC is significantly mitigated by keeping the operator within VLOS. Again, the agency is open to ideas on less restrictive ways to address this, but its concerns should be respectfully considered when making comments to the NPRM.

The Elephant in the Room:

talk-about-the-white-elephant-in-the-roomAs we noted last week, the FAA realizes that it has a compliance problem. But the FAA is not a police force, and it currently has no ability to quantify the degree of non-compliance. It also knows that imposing regulations that are unduly burdensome will only foster more non-compliance.

Its goal, therefore, is to enact regulations that encourage compliance while balancing its safety concerns.  Again, keep this in mind when submitting comments.

About Those § 333 Exemptions:

UltralightUntil a final rule is in place, commercial operators who don’t want to risk problems with the FAA will still need to apply for and obtain a Section 333 exemption. One of the questions on people’s minds has been, why does the FAA impose such mind-bogglingly stringent requirements, such as requiring a private pilot’s certificate, when granting these exemptions?

The FAA claims – and here is where I think that the agency is being disingenuous – that it has no statutory flexibility under Section 333 to waive:

  • Requirements for Airman Certification;
  • Security Vetting;
  • Aircraft Marking;
  • Registration Requirements.

That seems like a very odd assertion to make, given the fact that, for example, there is no airman certification requirement for operators of single-seat ultralights, which are much heavier than a typical sUAS and are powered by gasoline engines. The FAA does not claim any particular statutory authority for its regulations governing ultralights, other than a general series of statutes giving the FAA discretion to manage safety in the NAS.

Moreover, federal agencies – especially under this administration – have rarely been shy about claiming the maximum regulatory authority under the law. And the courts generally defer to an agency’s reasonable interpretations of the statutes that it is charged with administering.

It is therefore difficult to understand why the FAA claims such a lack of regulatory flexibility under Section 333. We are open to suggestions.

This NPRM Is Not the Last Word:

The above notwithstanding, the FAA clearly sees this NPRM as a first step on a long path to full UAS integration. It notes that the object should be to remain as open as possible to innovation, and it realizes that the pace of change in the UAS industry is rapid enough that it should avoid imposing some of the more stringent requirements, such as type certifications, that are common for manned aircraft.

It has specifically invited comments on a wide range of topics, such as whether UAS can be employed as air carriers, as well as available technologies and procedures that would allow safe VLOS and night operations, and whether a micro-UAS rule would make sense.

The comment period closes on April 24, so the time to get rolling on submissions is now.  If you would like to submit a comment with the assistance of counsel, please feel free to contact the law firm of Diaz, Reus & Targ, LLP and ask for Brant Hadaway, or email me at bhadaway@diazreus.com.