The FAA’s sUAS NPRM: It’s Time to Speak Up

Like many, we were pleasantly surprised by liberality of the FAA’s NPRM for sUAS.  Those who have been watching the FAA’s conduct, especially with regard to its often-tedious requirements for Section 333 exemptions, expected much more restrictive proposed rules that would have imposed impossibly high barriers to entry to all but the most well-financed operators.

Perhaps this is simply a matter of the FAA recognizing reality.  Pages 9-10 of the DOT’s released-then-un-released Regulatory Evaluation reveal a telling point:

While commercial small UAS operations are being operated without FAA regulatory approval, the FAA has no method to quantify their historical usage. However, as civil applications of UAS develop, a demand for legal and safe access to the NAS for commercial and other non-recreational purposes has emerged. This proposed rule announces our plan to work with the emerging UAS industry to build a safe environment; eventually leading to the inclusion of small UAS into the NAS for commercial and other non-recreational purposes as well as satisfying the congressional direction from P.L. 112-95.

In other words, the agency seems to be saying, we have no idea how many non-compliant operators are out there, but it’s probably a significant number.  Therefore, we think it better to have liberal rules that will bring more operators into the fold of compliance.

That seems to us like a smart move.  The FAA has no police force patrolling the cities and countryside, and its program to enlist local law enforcement appears to have fallen flat.  In any event, no federal agency can Constitutionally direct the activities of local law enforcement.

Indeed, while it is not our role to psychoanalyze a government agency, we see this NPRM as a case of bargaining – threatened with a complete loss of control over all but the most well-financed commercial sUAS operators, the FAA is promising to not be too onerous in exchange for a little more control than is actually necessary to achieve the purpose of safe integration.

It is nevertheless important for industry stakeholders not to be disarmed by this approach, but to carefully evaluate the NPRM on its merits and to engage the rulemaking process by filing comments.  For example, do you believe that the proposed rules strike the right balance for pilot certification?  Do you believe that the visual-line-of-sight requirement is too onerous?  Do you believe that there could be more efficient ways of protecting the airspace around airports that minimize barriers to entry for commercial sUAS operators?

We will air out our own thoughts on these questions in subsequent posts.  But in the meantime, make no mistake: Interested parties such as the Airline Pilots Association can be expected to submit comments urging much more restrictive requirements for pilot certification, air-worthiness certification, and operational parameters.  Your comments will be important to making sure that the final rules are as reasonable and entrepreneur-friendly as possible.

(As of this writing, the NPRM has not yet been published in the Federal Register, so the 60-day deadline for comments has not yet been triggered. But one should assume that the deadline will be sometime this Spring.)

Should you wish to engage counsel to assist you with the comment process, feel free to contact the law firm of Diaz, Reus & Targ, LLP at 305-375-9220 and ask for Brant Hadaway.  Or write me an email at bhadaway@diazreus.com.  If I can’t assist you, I’ll find you someone who can.

UPDATE:

The Wall Street Journal published a report yesterday which hints at the level of non-compliance with the FAA’s prohibition on commercial drone operations:

“Officially [the FAA’s] stance is, You can’t do that. But they say you can’t drive 70 miles per hour on a 50-mile-per-hour freeway,” said Peter Sosnowski, preconstruction director for Webcor Builders, a commercial construction company and San Francisco unit of Japanese firm Obayashi Corp. Webcor has used drones to map two big U.S. construction sites, he said. “Until someone gets caught and penalized, drone businesses will continue to do business as is.”

While we were away….

The FAA nefariously decided to release its NPRM on sUAS while I am in a remote area of Colorado with a useless wifi connection (writing this post via iPhone).

My initial reaction is one of relief. The proposed rules seem much more liberal and business-friendly than many expected. At least we can say that the FAA is not taking an adversarial view of things. That is very encouraging.

A question on the minds of many will be whether, given these proposed rules, it makes sense to pursue a 333 exemption? There is no one-size-fits-all answer to that (i.e., it’s what lawyers call a “fact-sensitive” question).

I will have more on this, once I’m comfortably esconced in my office in Miami.

NPRM to be released this week?

All Is Not Lost

We’ve heard from a credible (non-government) source that the FAA’s Notice of Proposed Rule Making (NPRM) for small drones (sUAS) should be released this Friday, February 13th (yes, Friday the 13th).  Unfortunately, I will be in the air on my way to a long weekend of skiing in Colorado, so (assuming the NPRM is released this week) I probably won’t get around to publishing my initial comments until sometime next week.

Note that the NPRM will be just one step in the process.  There will be a comment period of several months before any rules can have the force of law.  Then there may be challenges in the courts, which could take years to resolve.  And, of course, Congress could step in at any point along the way to pass legislation that might effectively repeal FAA regulations, in whole or in part, and replace them with a different or modified framework.  We still don’t really know how all of this is going to play out.

Until some enforceable rules are in place, the only option for commercial operators to comply with FAA requirements will continue to be to apply for exemptions under Section 333.

BREAKING: PIRKER CASE SETTLES

The Raphael Pirker case has settled.  Not terribly surprising, given the appellate ruling.  Pirker had little incentive to continue defending the case.  He agreed to a reduced fine of $1,100, with no admission of wrongdoing.

The FAA might be feeling like the more fortunate party in this transaction:

In a letter Pirker shared with me, a judge with the National Transportation Safety Board asked the agency why, essentially, it was putting a foreign national through the ringer for a relatively minor (and legally unclear) infraction. The FAA is allowed to take legal enforcement action against foreign nationals in three circumstances: The person has an FAA airman’s certificate; the person commits a violation as a passenger; or the person runs a “foreign repair station.” Otherwise, the FAA is supposed to refer the case to the person’s home country, in this case, Switzerland. The FAA didn’t do that.

Pirker “does not fall within the three circumstances that provide for taking of legal enforcement action … it is determined that this issue is best addressed, and appropriately resolved, prior to commencing a hearing,” the judge wrote.

[Pirker’s attorney Brendan] Schulman said that’s another reason why the FAA should be happy to put this behind them.

The allegedly offending video can be viewed, here:

Thus ends a very interesting regulatory dispute.  It won’t be the last.

FAA Grants 2 More Section 333 Exemptions

The FAA tweeted news this morning that it has granted 2 more Section 333 exemptions for the use of drones in agriculture and real estate.  One exemption was granted to a realtor in Arizona, the second to Advanced Aviation Solutions in Spokane, Washington, to conduct “precision agriculture” through photogrammetry and crop scouting. The former exemption – the Arizona realtor – might be of broader interest because the proposal was to operate a popular DJI Phantom 2 Vision+ quad-copter

to conduct aerial videography and cinematography to enhance academic community awareness for those individuals and companies unfamiliar with the geographical layout of the metro Tucson area and augment real estate listing videos.

From there, the document consists of 26 pages of mind-numbing bureaucrat-speak and absurdities that would have given Vaclav Havel a chuckle.  For example, the petitioner asked for relief from the requirement of having a private or commercial pilot’s license.  The FAA’s response:

Regarding the petitioner’s requested relief from 14 CFR 61.113(a) and (b), Private pilot privileges and limitations, the petitioner requested regulatory relief to operate his UAS without an FAA-certificated pilot. In support of his request, the petitioner states that “while helpful, a pilot license will not ensure remote control piloting skills.” However, the FAA does not possess the authority to exempt the petitioner from the statutory requirement to hold an airman certificate, as prescribed in 49 USC § 44711 [Ed. – prohibiting a person from serving “in any capacity as an airman . . . without an airman certificate authorizing the airman to serve in the capacity for which the certificate was issued….”].  Although Section 333 provides limited statutory flexibility relative to 49 USC § 44704 for the purposes of airworthiness certification, it does not provide similar flexibility relative to other sections of Title 49.

So, apparently the FAA has discretion to disregard section 44711 if you’re a hobbyist, but not if you’re a commercial operator.  Yes, we know about the hobbyist exception under FMRA, but this takes statutory construction to an absurd level. The FAA doesn’t stop there:

Unlike operations pursuant to public COAs, the FAA is also requiring a pilot certificate for UAS operations for two reasons, the first of which is to satisfy the statutory requirements as stated above. The second is because pilots holding an FAA issued private or commercial pilot certificate are subject to the security screening by the Department of Homeland Security that certificated airmen undergo. As previously determined by the Secretary of Transportation, the requirement to have an airman certificate ameliorates security concerns over civil UAS operations conducted in accordance with Section 333.

Um, why not simply require a background check?  Not that we think it should be necessary, but we trust non-pilots with Global Entry cards.  The background check requirements are at least as rigorous. The FAA then considers the objections of the Airline Pilots Association [We didn’t see that coming! – Ed.], but finds that a commercial pilot’s license should not be necessary. Various commenters have pointed to numerous other absurdities, and we do not have time to explore them all in detail.  But most absurd of all is the amount of resources that has gone into drafting, submitting, and reviewing one petition from an individual who wishes to operate his Phantom 2 for commercial purposes.  This is not only an absurd way to go about things; it is horribly wasteful and raises impossible barriers to entry for many thousands of potential entrepreneurs. There has got to be a better way.

Results of Transportation Oversight Committee Hearing

We live-tweeted House Transportation and Infrastructure Committee hearing on the status of UAS integration, oversight and competitiveness.  You will links to the prepared testimony of the witnesses at the link.  Our real time comments can be found on twitter at @dronelawdotcom.

Some interesting themes emerged from this hearing.  Everyone seemed to recognize that the U.S. is falling behind on R&D and investment due to the lack of a comprehensive regulatory framework.

Several of the committee members raised questions over whether the FAA should, like other developed countries, pursue a more risk-based approach to UAS regulations.  The FAA’s Peggy Gilligan claimed that her agency is doing just that, at least when evaluating section 333 exemption applications.  This was telling.  Most of her remarks smacked of happy talk and filibustering.

Rep. Todd Rokita asked, if we are taking a risk-based approach, whether any actuarial studies have been conducted.  The answer was yes, but only as to large, high-altitude UAS.  There were too many unknowns to be able to evaluate risk profiles for smaller drones.

Another interesting theme was the general frustration with the fact that the much-heralded test sites are not getting much support from the FAA.  Some spoke of opening up more test sites.  Jesse Kallman of Airware suggested that developers be permitted to operate their own test sites.  This made sense to us.

Capt. Lee Moak of the Airline Pilots Association began his testimony by putting a brand new DJI Phantom on the table.  He compared the risk of collision with small drones to the risk of bird strikes.  His testimony made it clear that the airline pilots are lobbying for a go-slow approach.  In other words, the FAA might not be aggressive enough in trying to shut this madness down.

The overall impression was that Congress understands the problem and is losing patience with the FAA.  We might see more legislative involvement if things don’t start picking up speed.

A full video of the hearing can be viewed, below:

FAA Grants 5 More 333 Exemptions

Progress?

The four companies that received exemptions want to fly UAS to perform operations for aerial surveying, construction site monitoring and oil rig flare stack inspections.

 

“Unmanned aircraft offer a tremendous opportunity to spur innovation and economic activity by enabling many businesses to develop better products and services for their customers and the American public,” said Transportation Secretary Anthony Foxx. “We want to foster commercial uses of this exciting technology while taking a responsible approach to the safety of America’s airspace.”

 

The commercial entities that received exemptions today are Trimble Navigation Limited, VDOS Global, LLC, Clayco, Inc. and Woolpert, Inc. (two exemptions). The FAA earlier granted exemptions to seven film and video production companies.

We’re heartened by Secretary Foxx’s comments.  But really, if the FAA continues this piecemeal approach – granting the occasional tranche of section 333 exemptions while patting itself on the back – the only “economic activity” we will see is more investment money diverted abroad.

A Risk-Based Approach to FAA Jurisdiction?

Apache

A danger to the national airspace.

As our readers know, the NTSB has confirmed the FAA’s assertion of jurisdiction in the Pirker case to cite hobbyists for the reckless operation of model aircraft.  Last week, we pondered how to define the boundaries of that jurisdiction, using the Commerce Clause as a point of reference.

Regardless of what one may think of the NTSB’s logic, based on the broad, post-New Deal interpretation of the Commerce Clause it is at least conceivable that the FAA’s jurisdiction extends that far.  But we think that Congress has already signaled a different approach.

FMRA section 336 specifically excludes model aircraft from regulatory oversight, except as to those operators “who endanger the safety of the national airspace system.”  This seems like a clear statement that the FAA’s authority to regulate model aircraft is risk-based.  In other words, the FAA should look not at whether a particular device is capable of flight, but at the nature of the activity in question, and the risk that a particular device is likely to pose to the national airspace.

This of course requires a fact-based analysis, which will vary, case by case.  But it doesn’t mean that the FAA can’t draw reasonable, bright lines on what it should regulate, and what it should leave alone.  In fact, it’s already been done, quite close to home.

Transports Canada has recently published a very simple explanation of its own, risk-based jurisdictional approach for sUAS.  This graphic lays it out in a single page:

Infographic_Permission_to_fly_a_UAV_Web_English_Page_1

This is remarkably sensible.  If you’re a hobbyist, and your drone weighs 35 kg or less, then use common sense and happy flying.  The rules for exempt professionals are also clear.

We would urge the FAA to take a close look at it.

So, if you’re getting paid, the FAA says to get a pilot’s license

That seems to be the gist of this story, which has taken the internet by storm, today:

Highly anticipated federal rules on commercial drones are expected to require operators to have a license and limit flights to daylight hours, below 400 feet and within sight of the person at the controls, according to people familiar with the rule-making process.

The drone industry has awaited commercial rules for about six years, hoping the rules would pave the way for widespread drone use in industries such as farming, filmmaking and construction. Current FAA policy allows recreational drone flights in the U.S. but essentially bars drones from commercial use.

In addition, pilot certifications likely to be proposed by the FAA would typically require dozens of hours flying manned aircraft, according to people familiar with the rule-making discussions. Drone proponents have resisted requiring traditional pilot training for drone operators.

There’s a lot to unpack, here. But the upshot is that, assuming the report is accurate, hidebound thinking has prevailed over common sense: Two operators, side by side, operating the same model, under the same conditions will be subject to different requirements, based on the mere fact that one is getting paid and the other is flying for pleasure.

Leaving that aside, requiring anyone to go to traditional flight school to become licensed to operate a small, remote-controlled model-type aircraft makes about as much sense as requiring someone to be trained in an M1 Abrams tank as a condition for being allowed to fire a pistol on a shooting range.

We will obviously have much more to say about this as the news unfolds.

The FAA Should Pull Back

Responding to this week’s NTSB ruling, the author of this op-ed in today’s L.A. Times suggests that the FAA should pull back from its regulation over “hundreds of types of flying devices that are not even capable of reaching the minimal safe altitude of manned airplanes.”

Small drones are not built for lengthy interstate flights at altitudes where conventional airplanes fly, so why should a federal agency be the chief regulator of these devices? Rather than seeking to expand its regulatory jurisdiction all the way down to the ground, the FAA should advocate for itself a more limited role in a collaborative federal, state and local regulatory scheme tailored to the unique attributes of drone technologies.

The author suggests that the FAA limit itself to “aspects of drone regulation that are most appropriately implemented at the federal government level.” For example, FAA safety standards could require the incorporation of geo-fence technology “to prevent operators from flying their drones into the airspace surrounding hundreds of airports around the world.”

This calls to mind two points we have made on this blog. As we noted yesterday, Congress appears to have expressed an intent to limit the FAA’s jurisdiction to risks to the National Airspace. We think that any risk posed by small drones can be adequately addressed by regulating them as consumer products rather than as traditional aircraft. Geo-fencing and built-in height and radius limitations are among the features that could be required to be incorporated in over-the-counter drone technology.