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.

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.”

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.

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.

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.