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.
We will be at AUVSI’s Unmanned Systems 2015 conference in Atlanta, May 4-7. Look for our (very small) booth at the trade show and stop by to say ‘Hello’!
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:
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:
As 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:
Until 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.
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.
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.
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.
“Companies around the world are considering, with great interest, the numerous possibilities that unmanned aircraft systems create,” said Hogan Lovells UAS Group chair E. Tazewell “Ted” Ellett. “This sophisticated technology opens up many business opportunities for our clients. Our Aviation practice has been assisting UAS clients for years. Now, by creating this dedicated UAS Group comprised of firm lawyers who are specialists in the many disciplines and industries of interest to our UAS clients, we are able to provide comprehensive UAS-related legal services on a global scale.”
A link to their UAS practice page can be found here.
WASHINGTON (AP) — Designers of the ambitious U.S. air traffic control system of the future neglected to take drones into account, raising questions about whether it can handle the escalating demand for the unmanned aircraft and predicted congestion in the sky.
“We didn’t understand the magnitude to which (drones) would be an oncoming tidal wave, something that must be dealt with, and quickly,” said Ed Bolton, the Federal Aviation Administration’s assistant administrator for NextGen, as the program is called.
I understand that the FAA is a government bureaucracy and all, but how could they have failed to see this coming? This is especially troubling, given the fact that it will be very difficult to “retrofit” the system:
The FAA has spent more than $5 billion on the complex program and is nearly finished installing hardware and software for several key systems. But the further it progresses, the more difficult it becomes to make changes.
The problem that regulators are just starting to realize has to do with incompatibility between large drones and the usual aircraft occupying Class A airspace. For example:
Planes at high altitudes are supposed follow designated highways in the sky to avoid collisions. A typical airliner on that highway might fly at over 500 mph, while a drone at the same altitude might fly at only 175 mph, he said. The more drones, the worse the traffic jam.
The Twin Cities law firm of Fafinski Mark & Johnson is launching a “drone” practice group. The law firm “said Tuesday that it has been closely monitoring the developing drone industry, and legal advisors and litigators from its aviation group will lead the new practice group.”
Expect to see more aviation law firms expand into the realm of drone law.
