An alternative approach to small drone regulations?

Writing at Aviation Today, authors Henry Perritt, Jr. and Eliot O. Sprague make some interesting suggestions for a more practical, alternative approach to FAA regulations for small, line of sight drones (what they call “microdrones”): Treat them as a consumer product, like a cell phone or lawn mower.

They begin with a stunning admission from the FAA:

In May 2014, Jim Williams, head of the FAA’s Unmanned Aircraft Systems (UAS) office, told the Small Unmanned Systems Business Expo that general regulations for microdrones would not be promulgated until after 2020. Congress, in the 2012 FAA Modernization and Reform Act, mandated that such regulations be effective no later than 2015. This much of a delay beyond the congressionally mandated deadline invites a lawsuit telling the FAA to move forward quickly.

The reason it will take so long is that the FAA assumes that it will begin with existing regulations for manned aircraft and adapt them line by line, to the peculiarities of microdrones.

Instead, the authors argue,

the agency should take advantage of the capabilities of microdrone technology to enforce certain limits on flight profiles autonomously. Such an approach would focus FAA energy on defining what limits should be built into drones commercially marketed, relieving it of detailed regulation of airmen and detailed flight rules to be enforced in the conventional way.

Taking a cue from the FCC’s regulation of cell phones, the authors suggest that the FAA require that microdrones have certain limitations and capabilities built into their hardware and software. For example:

The most basic rules to be encoded into microdrones are already agreed on. First, a height limit is necessary to keep microdrones away from the airspace in which manned craft fly most of the time. Under the proposed approach, legal microdrones must have a navigational mechanism – a combination of barometric pressure sensors and GPS navigational systems – that would not permit them to fly above 400 ft. AGL.

Second, microdrones can be flown only within line of sight. In order to keep them there, microdrones must have a built-in radius limit of, say, 1,500 ft. horizontally from the DROP.

As a further prerequisite for certification, microdrones must have a return-to-home feature that could be triggered by the DROP, and which would be automatically triggered by loss of signal. This also might be triggered by an indication that the DROP has become inattentive, kind of like the “dead man control” on railroad locomotives.

Many microdrone operators would probably not be in full agreement on these proposed limitations. We imagine, for instance, that operators would not be happy with the FAA imposing an arbitrary maximum horizontal radius to enforce line of sight. But, on balance, this seems to us like a preferable approach to insuring that both commercial operators and hobbyists are able to use off-the-shelf technology without having to go through the cumbersome process of obtaining traditional FAA certifications.

What do you think?

Real estate video company takes a defiant stance

Given all the meekness we’ve seen in the face of the FAA’s bullying, we find the attitude of this real estate video company representative to be rather refreshing:

“The use of drones in real estate is neither legal, nor illegal. It just has not been regulated yet,” says Brian Doe, director of Business Development at Home Jab; a real estate video production company offering a network of trained filmmakers who create aerial video for real estate marketing.

… “It’s kind of like saying ‘you can’t speed,’ but the road has no speed limit. So how do you determine what speeding is? There is no way to enforce any rule, there is nothing out there about UAV’s, especially fewer than 55 pounds,” says Doe.

We couldn’t have said it better.

Drones on the farm: What are the laws?

As evidence for the proposition that no news outlet is so obscure as to escape our watchful eye, we bring you this story from a publication called Dairy Herd Management. Unfortunately, farmers are caught in the same regulatory void* as professional photographers, realtors, and pretty much everyone else. Peggy Hall, an assistant professor and Ohio State University Extension field specialist in agricultural and resource law, says:

“While landowners, farmers and growers need to know if it is legal to use UASs on their own land to monitor crops or for other uses on their farm, at this point it’s still a gray area in the law.”

Ms. Hall cautions farmers about the risk of incurring fines from the FAA. Perhaps someone ought to put together a pro bono team of practitioners and law students to represent farmers in challenges to the FAA.

* We were tempted to write, “regulatory purgatory,” but thought better of it after having a second coffee.

Drone service to launch in South Florida

Coral Springs-based OpenSky Drones, LLC is launching a service that would use drones for building and safety inspections, among other things.

The unmanned aircraft’s cameras can live-stream visuals needed for building inspections, as well as natural gas detection and cellular tower energy readings for utilities and government agencies.

The service will not become operational until it receives FAA approval. We are frankly unsure of whether the service really needs FAA approval, given the Pirker decision, so long as the service operates line-of-sight aircraft below 400 feet and away from airports. But, as we’ve said before, serious investors in this new field want to play nice because it’s good for business over the long term to do so.

The question is, will the FAA play nice? Approving a business like this should be a no-brainer.

h/t sUAS News

Twin Cities Law Firm Launches Drone Practice

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.

Amazon seeks FAA permission to test drone delivery

Amazon’s share price is apparently up, in part on news that it has sought FAA approval to test its drone delivery system:

Amazon is asking the government to allow testing of its new delivery mechanism — small package-carrying drones that can travel at up to 50 miles per hour. The company notes in its letter that its drones can now carry loads up to 5 pounds, which it notes covers 86% of all products sold on Amazon.

There’s a lot of confusion in the article, some of which appears to be the fault of Amazon, itself. Let’s begin with this statement:

The FAA, which controls the skies above the US, has prohibited companies from testing drones — only making an exception for hobbyists

Well, not exactly. The FAA doesn’t control all of the skies above the U.S., but only that part of the skies over which it has traditionally exercised jurisdiction. As well, the “exception” for hobbyists is not tethered to the ban on testing, and the FAA has yet to enact regulations defining “hobbyists.” The comment period on the definition has yet to close.

More to the point, the NTSB judge ruled in Huerta v. Pirker that the FAA had failed to draw any meaningful distinction between someone who operates a model aircraft for pleasure and one who operates the same or similar model aircraft for profit. As far as anyone can tell at the moment, the only effective prohibition at the moment applies to aircraft that are operated beyond line of sight – i.e., by methods other than those traditionally employed by hobbyists.

This brings us to the next point:

Amazon argues that its drone testing will actually be safer than that of hobbyists, flying under 400 feet and “in a confined area over isolated Amazon private property” away from airports, government installations, and densely populated areas.

But would they be operated within line of sight? Amazon’s letter to the FAA provides additional detail regarding its proposed testing operations:

The sUAS will (i) have a maximum weight of less than 55 pounds; (ii) be rotorpowered
via a battery source; and (iii) be U.S.‐registered and display marks in accordance with 14 C.F.R. Part 45, Subpart C.5

Our sUAS R&D testing under this exemption will be conducted (i) within the visual line of sight of the operator and/or one or more observers; (ii) at less than 400 feet AGL; and (iii) within Class G airspace.

The operations will be conducted in a confined area over isolated Amazon private property located a sufficient distance away from (i) any airport, heliport, seaplane base, spaceport or other location with aviation activities; (ii) any densely populated areas; and (iii) any military or U.S. government installations or airfields.

All operations will remain within the lateral and vertical boundaries of the operating area, taking into account all factors, including wind, gross weight and glide distances, that may affect the capability of the sUAS to remain within the airspace boundary; moreover, the integrity of the operating area will be reinforced by geo‐fencing, including the ceiling height of no more than 400 feet AGL.

Given these parameters, it is tempting to suggest that Amazon could rely on the Pirker decision and not seek permission from the FAA. But of course, the last thing Amazon wants is to give the FAA an excuse to shut it down. Amazon is trying to play nice, here. The question is whether the FAA will do the right thing.

Earlier in the letter, Amazon indicates that it has thus far been forced to conduct testing either indoors or in foreign countries that already have regulations in place. The fact that Amazon has been forced to conduct its testing abroad is a shame. The FAA should promptly grant Amazon’s request.

FAA Investigating Legality of Fireworks Drone Flight

Pretty much everyone on the planet has by now seen the YouTube video of a fireworks display that was shot from a drone. A report is now circulating that the FAA is investigating the legality of that flight:

According to Forbes, the FAA is now actively looking into whether drones that fly into fireworks displays is a “violation of federal regulations or airspace restrictions.”

Has anybody ever heard of such a regulation?

NYC Drone Operators Charged

After an alleged near-miss with a NYPD helicopter over the George Washington Bridge, two drone operators have been arrested and will face charges for reckless endangerment. The NY Post has more details, including an allegation that the drones were being operated at an altitude of 2,000 feet.

The author of the Forbes article (at the first link) argues that no additional laws are necessary in a case like this:

Remy Castro, 23 and Wilkins Mendoza, 34 were charged in Manhattan Criminal Court with felony reckless endangerment. That law states:

A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.”

The author discusses whether the charge might be reduced to misdemeanor endangerment, given the high burden of proof for a charge of felony endangerment. His reasoning seems correct to us.

FAA Rewrites Timeline for Integration of UAS

Aviation Week reports that the FAA is preparing to implement a 5-year plan for the phased integration of UAS.

Responding to an auditor’s report critical of its progress toward integrating unmanned aircraft into national airspace, the FAA says it expects to complete a plan by the end of August for a phased implementation approach over five years.

That is good news. However, the article contains this nugget of denial from the FAA regarding the timing of its plan as required by Section 332 of the FAA Modernization and Reform Act of 2012. In response to the Inspector General’s conclusion that the FAA will miss its September 30, 2015 deadline to safely and fully integrate UAS into the national airspace, the FAA responds: “The Act requires safe – not full – integration of UAS into the NAS by September 2015.”

We suppose this depends on what the meaning of “integration” is. Section 332(a)(1) of the Act required the FAA to have a plan in place for the integration of UAS within 270 days of the Act’s date of enactment. The required contents of that plan included provisions for:

(C) a phased-in approach to the integration of civil unmanned aircraft systems into the national airspace system;
(D) a timeline for the phased-in approach described under subparagraph (C)….

The plan scheduled for release at the end of August would apparently comply with those requirements in substance, but it’s coming about a year too late.

In the meantime, Section 332(a)(3) of the Act clearly states:

The plan required under paragraph (1) shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.

The FAA now claims that this language requires some level of safe integration, but not complete integration, by that deadline. This might be a defensible position, given Congress’ omission of the word “all” from the sentence. But given the FAA’s history of foot-dragging, it strikes us as more of a post hoc rationale than a good-faith interpretation of Congressional intent.