Can a State Grant Immunity for Shooting Down a Drone?

Do I feel lucky?

 

Anyone who has studied the law is likely to be familiar with the issue of federal-state preemption.  The doctrine may be generally described as, where the Constitution grants a power to the federal government to regulate an activity, and Congress exercises that power, state laws that contradict or undermine federal law are preempted and therefore invalid.

No one seriously questions whether Congress has authority under the Constitution to regulate the National Airspace (NAS), and no one questions the authority of the FAA to carry out enforcement of Congress’ mandates to regulate the NAS.  We discussed the scope of that power in this post, and the problem of drawing a bright line on the limits of the NAS.  The full answer to the question remains unsettled, but the argument is over where to draw the margins, not over the power, itself.

Enter the Oklahoma Senate, which might be about to vote on a bill that would grant immunity to anybody who shoots down a drone over his or her property.  If passed, this would put Oklahoma on a collision course with federal law, which makes damaging or destroying an aircraft a felony.  This statute covers pretty much any “aircraft” in the U.S.  The FAA has declared – and the NTSB has affirmed – that a “model aircraft” is an “aircraft” for purposes of the FARs.

Thus, even though Oklahoma might purport to grant its citizens immunity from prosecution when shooting down a drone (or a town passes a law encouraging its citizens to shoot down drones), the shooter could still be prosecuted under federal law, which would completely pre-empt any state law immunity.  If you think we’re kidding, consider the discussion of Gonzales v. Raich in this post.  The feds might decide not to enforce the law against a person, but that is a matter of prosecutorial discretion.

This is why state and local governments need to be very careful about incentives they put in place vis a vis drones.  They could very well mislead their citizens into earning time in federal prison.

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.

We’ll be at the Florida Unmanned Systems Business Expo

The Florida Unmanned Systems Business Expo takes place at the Wyndham Resort in Orlando, February 26-27.  Go here to register and use promo code “DRONELAW2015″ to get a $100 discount.

If you register before February 4, you will get a $50 discount for your stay at the Wyndham.

If you attend, be sure to stop by the booth for Diaz Reus and say hello!

Hollywood Welcomes the Drones

Nice report from CNN on Hollywood’s official foray into drone photography:

A small UAV offers amazing advantages for filmmakers – acting both as a crane and as an aerial photography platform.  This will save huge dollars in production costs and logistics.

Unfortunately, the FAA’s exemption system to date sets high barriers to entry that, in our view, are largely unnecessary.

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.

South Africa Moves Forward on Drone Regulations

Drone operators in South Africa have been cooling their heels, waiting for regulations allowing commercial drone operations from the South Africa Civil Aviation Authority (SACAA).  Based on this report, it looks like their wait will soon be over.  In what would constitute a lightning-fast rules process in the U.S., South Africa went from proposed rules, issued in December, to the close of comments just over two weeks ago.  The regulations are supposed to be finalized by the end of January, and will hopefully become law by April-May of this year.

The draft regulations would require aircraft to be licensed and registered and pilots/operators to undergo training to qualify them to fly the aircraft. Someone would only be able to fly a remotely piloted aircraft (RPA) if they have an RPA Pilot License, an RPA Operator Certificate, a certificate of RPA registration and an RPA Letter of Approval.
Importantly, RPAs will be classified according to their mass, kinetic energy and type of operation (line of sight, beyond line of sight etc.), with ten classes ranging from Class 1A to Class 5 and with masses ranging from less than 1.5 kg to greater than 150 kg.

The draft regulations apply to class 1 and 2 RPAs (up to 120 kg). Private operations of RPAs will be conducted only in restricted visual line of sight with a Class 1A or 1B RPA (up to 7 kg). However, operating a UAV as a hobbyist falls under different regulations.

The proposed categories for pilots is interesting:

For anyone in South Africa with a UAV, there are three options to fly legally: one can apply for a license if pursuing commercial work (once the regulations are finalised); one can become a member of the South African Model Aircraft Association (SAMAA) if flying as a hobbyist; or one can fly as a ‘park flyer’.

Great work for SAMAA.  We believe that the following applies to those seeking to do commercial work:

Someone would only be able to pilot an RPA once in possession of a Remote Pilot License (RPL) in one of three categories: RPL (A) – Aeroplane Remote Pilot License; RPL (H) – Helicopter Remote Pilot License; and RPL (MR) – Multirotor Remote Pilot License. Several ratings are available including visual line of sight operations (VLOS), extended visual line of sight operations (E-VLOS) and beyond visual line of sight operations (B-VLOS).

The License would test things like air law, meteorology, navigation, aerodynamics, propulsion, flight control, batteries etc. Flight training can be a combination of simulator and real aircraft training and would cover things like aircraft inspection, systems checks, flight control/manoeuvres, takeoff, landing etc.

In other words, the SACAA isn’t taking a one-size-fits-all approach to licensing and, unlike the FAA, apparently won’t require pilots to be licensed to fly manned aircraft.

The flight rules get a little more complicated:

For commercial, corporate and non-profit flight operations, an operator would be required to have an RPA Operator Certificate (ROC – valid for 12 months) or air services license, which can only be granted if the operator has a registered aircraft, an operations manual and an RLA. ROC holders would have background and criminal record checks conducted and would have to have third party insurance.

For private use, RPAs would only be flown in restricted visual line of sight (within 500 metres of the pilot) and over property the pilot owns or has permission to operate over.

With regard to operating an RPA, under the draft regulations an aircraft would only be operated in controlled airspace by a holder of an ROC or if the RPA is flown in visual meteorological conditions in an air traffic zone (ATZ) and controlled traffic region (CTR) below 400 feet. RPAs intended for operations within an ATZ or CTR would have to be fitted with a mode C or S transponder, altimeter, strobe light/s and navigation lights.

Did we say that the operations rules get a little complicated?  Scrolling through the proposed regulations, one finds nuggets like this:

First aid kits

101.05.24 (1) No owner or operator of an RPA shall operate the aircraft unless a first aid kit consisting of the medical supplies … for manned aircraft is available within the remote pilot station and within 300 m of the takeoff and landing points. . . .

(2) The owner or operator shall carry out periodical inspections of the first aid kit to ensure that, as far as practicable, the contents thereof are in a condition necessary for their intended use.

(3) The contents of the first aid kit shall be replenished at regular intervals, in accordance with instructions contained on their labels, or as circumstances require.

(4) The first aid kit shall be readily accessible to all crew members involved in the operation.

Hand-held fire extinguishers

101.05.25 No owner or operator of an RPA shall operate the RPA unless –

(a) a hand-held fire extinguisher is available in the remote pilot station and within 300 m of the takeoff and landing points;

(b) a hand-held fire extinguisher suitable for use with electronic equipment and any power generating equipment in use is available in the remote pilot station; and

(c) a hand-held fire extinguisher suitable for use on the RPA is available within 300 m of the takeoff and landing points.

Good Lord.

As one might imagine, South African officials are concerned about a lack of personnel to implement these regulations, once they become law.  Such a dilemma is the natural result of a regulatory regime that, while sensible on some levels, is still going to be grossly inefficient and difficult to administer.

We give this proposed set of drone regulations a C+.

The complete draft regulations can be found here.

Commercial Drone Licensing in Great Britain

Writing at the Washington Post’s Innovations blog, Matt McFarland reviews the approach to small, commercial drone licensing in Great Britain, where the “Civil Aviation Authority — an equivalent to the FAA — has approved three companies to provide training on unmanned aerial vehicles (UAVs) that weigh less than 45 pounds.”  The training and licensing regimen is notable in that, unlike the FAA’s requirements in a number of Section 333 exemptions and in its pending rules, Britain does not require operators to hold a pilot’s license for manned aircraft.

One of the approved training companies, Sky-Futures,

sends trainees a ground school manual to gain an understanding of how airspace operates and how to read an air map. Newbies are given a month at home with the manual, but experienced manned aircraft pilots are required to spend far less time with it.

Sky-Futures then puts trainees through two days of ground school and three weeks of actual flight training in Spain. Aside from much of the summer, the British group heads to Spain for the drier conditions and clear skies. Lessons take place at an approved test site. Students learn everything from how to navigate around objects to how to operate a camera on a drone safely.

And who wouldn’t enjoy three weeks in Spain, especially when looking to escape the (mostly) crappy weather in the UK?  That might, of course, assume that you can spare the time.  Good luck monitoring your business if you’re a real estate broker.

Then there’s the other catch:  the cost is roughly $12,000.  The director of training at Sky-Futures, himself a Boeing 747 pilot, calls this a “gold-plated standard.”  Gold-plated or not, it might put the training out of reach for aspiring freelancers.

The downstream requirements are much less onerous.  Once a pilot is certified, he needs to submit an operations manual and proof of insurance.  But otherwise, the regulations are fairly minimal, and reasonably risk-based (operators of drones over 15 lbs have to notify air traffic control before flying).

We see a danger of regulatory capture, here.  Training schools like this will of course have a vested interest in lobbying for greater – but not too much – complexity.

Still, we think that this is better than nothing, and it seems far more reasonable than what is rumored to be in store from the FAA.  But three weeks of training, at a cost exceeding $10k, still seems like something that is going to create unreasonable barriers to entry for operators of small drones.

We give this regulatory framework a B+.

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.

Drone Sense at the Washington Post

The Washington Post’s Editorial page is one of the last remaining mainstream editorial pages that still seems to have a few adults in charge.  On Sunday, it published a remarkably simple and cogent pronouncement on the state of drone regulations.  Noting the dissonance between regulations over commercial vs. recreational operators, as well as the reports of drones entering sensitive airspace, the editors have a few suggestions:

The FAA should finally release rules governing commercial drone flights shorn of the absurd requirement that operators must have hours of cockpit time in real planes. Commercial drone pilots should have adequate practice on the equipment they are actually using, and they should be up to speed on FAA rules on unmanned aircraft, air traffic control practices and how to deal with bad weather. They don’t need to know how to land a Cessna. If the FAA doesn’t make that clear, Congress should.

Meanwhile, the FAA should also find better ways to keep drones out of sensitive airspace.

The editors point to something that we have frequently suggested, that manufacturers of recreational drones be required to include built-in altitude and geo-fencing restrictions.  Indeed, the editors note that some manufacturers are already doing so.  If the FAA declines to take this common sense approach, then Congress might have to step up and mandate that it do so.