Drone Registration: A Question of Policy vs. Process

I often find myself in debates with smart people – people I like – who don’t understand the distinction between the merits of a particular government policy and the question of whether the government has the power to enact that policy.  To pick a recent example, you may think that preventing hunters from killing bear cubs in Alaska is a great idea.  Whether the government – especially, the Executive Branch, acting without statutory authority – has the power to enact such a ban is a question that many would regard as beside the point.  Those who question the Executive’s power to protect bear cubs obviously hate bear cubs.

Based on the tenor of articles like this one in today’s Washington Post, the FAA’s drone registration rule is the Alaskan bear cub of the moment.  Stakeholders are livid at John Taylor for having the temerity to question authority.  A spokesman for AUVSI (an organization in which I have been a member), seems rather beside himself:

Why do we have restrictions? Because we don’t want a drone ingested into an aircraft engine,” said Brian Wynne, a licensed pilot and president of the Association for Unmanned Vehicle Systems International, a leading industry group based in Arlington, Va.

Wynne said putting registration numbers on all aircraft should be seen as a basic safety requirement. But that was part of what was overturned by Taylor’s challenge.

“We have to have rules,” Wynne said.

I feel Mr. Wynne’s pain.  Really, I do.  Stakeholders who have invested so much in their drone businesses no doubt feel put upon by a regulatory regime that imposes high barriers to entry on them, while imposing very few restrictions on those who engage in the very same activity for personal pleasure.  A drone registration requirement for all seems only fair.

But, as Mr. Wynne said, “We have to have rules.” And first among those rules must be the rule of law.  Congress expressly prohibited the FAA from regulating model aircraft.  The FAA’s drone registration rule violated that unambiguous prohibition.

John Taylor was just the boy who pointed out the emperor’s lack of clothing.

D.C. Circuit Court Strikes Down Registration Rule for Non-Commercial Drones

We have previously expressed our skepticism of the FAA’s authority to require non-commercial drone operators to register their drones.  While the FAA’s registration requirement may have been well-intended, good intentions don’t overcome a clear statutory prohibition like FMRA Section 336, which expressly provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft…

That the FAA went ahead and did so anyway got under the skin of a lot of people, and rightfully so.  Perhaps the FAA didn’t count on the fact that at least one of those people had a license to practice law:

In a stunning David versus Goliath case, John A. Taylor, a model aircraft enthusiast and insurance lawyer, beat the Federal Aviation Administration and Department of Justice in a case challenging the legality of a December 2015 FAA rule requiring model aircraft to register like manned aircraft. The Court of Appeals for the District of Columbia ruled that the FAA’s registration rule, as it applies to model aircraft, “directly violates [a] clear statutory prohibition.”

The court specifically noted that Section 336 “codified the FAA’s long-standing hands-off approach to the regulation of model aircraft.”

In short, the 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.

The FAA raised two arguments.  First, the FAA argued that the registration requirement applied to all aircraft and pre-dated the FMRA.  In other words, it was pre-existing requirement.  This was belied by the FAA’s own history of making an exception for model aircraft.  The rule was a new regulation, and therefore prohibited by Section 336.

Second, the FAA contended that the rule was consistent with the FMRA’s purpose to “improve aviation safety.”  But that would be inconsistent with the text of the statute.  Congress, the court noted, is always free to amend the statute.

In a normal world, results like this wouldn’t be stunning.  Challenging the government on a rule that clearly exceeds its statutory authority should be more like shooting fish in a barrel.  But this is the world we have as a result of a judicial doctrine known as Chevron deference – i.e., that a court will generally defer to an agency’s interpretations of statutes, as long as there is a reasonable basis for that interpretation.  This has led to unfortunate consequences, and we may be witnessing the beginning of the end of the Chevron doctrine.

But let’s not take anything away from John A. Taylor’s achievement.  This was a great win, for himself, for the drone community, and for individual liberty.

Part 107 is finally out!

I always seem to be in a remote location with limited access to the internet whenever important news breaks.  Of course, today’s release of Part 107 was expected.  It was also expected that there would be few surprises, but there are some things that are worth noting:

While the altitude restriction is 400 ft AGL as opposed to 500 ft, you can fly higher if you are within 400 feet of a taller structure.  This makes sense when considering the number of drones that will be used for things like cellphone tower inspections.

The FAA will create a portal to apply for waivers of restrictions.

The FAA is creating a new certification, called “Remote Pilot Airman” certificate.  The good news is that the operator does not need to have the certificate as long as he is operating under the direct supervision of someone who does.  We are waiting to see what the aeronautical knowledge test will consist of.

While the FAA concedes that it does not regulate privacy issues, it intends to come out with some “best practices” on privacy.  It remains to be seen what those will be.

Of course, once the rule goes into effect, a Section 333 exemption will no longer be necessary to comply with what the FAA says is required to operate commercially.

For regular updates and commentary, on Part 107 and on other matters, follow us on Twitter at @dronelawdotcom.

 

FAA Publishes Drone Registration Rules

Other than a few blurbs on Twitter, I haven’t had much to say about the pending rules on drone registration, primarily because it was unclear to me just how it could work, especially vis a vis hobbyists.  And it seemed especially unlikely to achieve the putative goal of allowing authorities to trace drones that endanger other aircraft back to their owners.

As I have said in the past, where the burden imposed by a regulation significantly outweighs the chance of getting caught, the likely result will be a lot of non-compliance.  And, as with many things, the people who do comply are unlikely to be the people that you need to worry about.

But I also know some of the stakeholders who participated in crafting the rule, and I wanted to wait and give them the benefit of the doubt.  They were given an enormous task, and very little time to come up with a solution.

Following a breakneck rule-making timeline, the interim final rule on drone registration has now been published.  It goes into effect next Monday.

FAA Grants Section 333 Exemption for Paper Airplane

Yes, you read that correctly.  The FAA got massively trolled by Peter Sachs, who applied for and received a Section 333 Exemption to commercially operate a PowerUp 3.0 Smart Phone-controlled paper airplane.  From the article by John Goglia:

His exemption allows him to “conduct aerial photography and videography” with the powered paper airplane so long as he meets dozens of conditions specified in the exemption and attached certificate of authorization. I asked the FAA for comment on whether granting the exemption indicates that the FAA considers a powered paper airplane an unmanned aircraft system, or UAS. An FAA spokesperson responded that “Mr. Sachs submitted a valid petition for exemption, and we granted the requested relief.”

And while Mr. Sachs has a helicopter pilot’s license, he is not current, which means that, in order to operate his paper airplane, he will need to spend thousands of dollars to become current or to hire a pilot.

You can read the exemption and application, here.

This brings to mind the ruling of the law judge in the Pirker case, wherein he found that the FAA’s position, vis a vis regulation of model aircraft, would lead to the “risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the ‘operator’ to the regulatory provisions of [14 C.F.R. part 91 and] Section 91.13(a).”  As we know, an appellate panel at the NTSB rejected that notion.

Well, now we know.

About that handgun-firing drone

A knucklehead in Connecticut has caused quite the media firestorm over his video of a semi-automatic handgun being fired from a small drone.  I have received some media inquiries about whether it is legal or not.  The answer is that it depends.

Based on the video, it appears that this occurred on private property, away from any buildings or people.  The FAA does not seem to have a regulation that would prohibit discharging a firearm from a drone under those circumstances.

The closest thing you will find is FAR § 91.13, which prohibits the reckless operation of an aircraft (the FAA relied on this section in the Rafael Pirker case), and § 91.15, which prohibits dropping objects from an aircraft.  But both regulations apply only where the activity poses a danger to life or property.  That does not appear to be the case, here.

The more likely resource for determining the legality of this particular drone would be state law governing the handling and discharge of firearms.  These regulations vary by state, but in general one would look to whether a firearm was discharged in a reckless manner that posed a danger to others, or in a built-up area or an area zoned for housing.  You can review Florida’s law, here.

Does this presage the weaponization of private drones?  I doubt it.  The video seems to vindicate something I wrote back in October:

[A] small drone is unlikely to be a useful weapons platform. As anyone who has fired a gun can attest, the kickback from discharging a firearm would be just as likely to send a small drone tumbling out of the sky as it would be for the drone to hit its intended target.

The video proves the point.  The operator does not have any reasonable semblance of control over the weapon, and at one point he clearly seems to be downrange of the weapon.  That’s a big no-no among gun owners.

Having said that, I could foresee someone developing an “FPV drone paint-ball” war game (patent pending).  Where that would fit with FAA regulations and state firearms law might be a topic for another post.

sUAS Apples to Amazon Oranges

Amazon Prime Air

Two news items on drone rules have some reporters comparing sUAS apples to Amazon oranges. The first is that, yes, hallelujah, the FAA expects to finalize its sUAS rules within a year.  The other news is the congressional testimony of Amazon VP Paul Misener that his company’s drone delivery technology will be ready to roll out in about a year, as well.

Several reporters, including the one cited above, have leapt to the conclusion that Amazon PrimeAir can start deliveries as soon as the final sUAS rule has been published.  See here and here.  Not so fast.

The NPRM that will be finalized next year only contemplates flights that are remotely operated by a single pilot, within visual line of sight.  While the NPRM invites comments on using drones for air carriers, Amazon’s PrimeAir business plan contemplates something much more complex – multiple, autonomous flights, well beyond visual line of sight.

The Daily Mail, of all publications, gets it right – that the launch of PrimeAir will completely depend on the FAA making major changes to the proposed rules. It is therefore highly unlikely that the final sUAS rule will address Amazon’s proposed method for drone delivery.

In fact, it is more likely that the FAA would issue an entirely separate NPRM for autonomous drone delivery services like that contemplated by Amazon. This would, in turn, be subject to the usual notice and comment period.

The upshot is that, while we are thankfully only a year away from having a final sUAS rule for remote-controlled, visual line of sight operations, we are, unfortunately, probably still years away from autonomous drone deliveries.

This could change, of course, should Congress decide to intervene. But for now, no such discussion appears to be on the table.

Has the FAA Claimed Jurisdiction Over Indoor Airspace?

Words have consequences.

Recently, I reported on remarks from a panel of experts on sUAS integration at the AUVSI expo in Atlanta. One of the more interesting comments came from the FAA’s director of sUAS integration, James Williams, who said that navigable airspace is wherever an aircraft can safely operate. And because Congress chose to define sUAS as “aircraft” in the FMRA, anywhere a small drone could fly safely is, therefore, navigable airspace.

The FAA uses this tautology to justify its claim of jurisdiction over all airspace, from the ground up, regardless of whether a discrete area is surrounded by trees or buildings that would make navigation impossible for a manned aircraft. But the weakness in this argument becomes apparent when taken to its logical conclusion, that the FAA may also claim jurisdiction over indoor airspace.

I have heard from a number of commercial operators who have been hired to conduct inspections inside of large warehouses, for example.  We also know, based on public comments, that Amazon has been testing its PrimeAir drones in the U.S. in enclosed spaces. Obviously, these are spaces where drones can safely operate.

So, why hasn’t the FAA claimed jurisdiction over indoor airspace?

The obvious answer is that indoor operations do not threaten the national airspace system (“NAS”) (we discussed the scope of the NAS here and here). But that just begs the soundness of the FAA’s reasoning.  The criteria should not be whether a drone can safely operate in a given area, but whether operating in a given area poses any kind of danger to the NAS.

We understand that the FAA has a difficult job to do.  But that’s no excuse for engaging in administrative overreach.

FAA Announces UAS Pathfinder Program

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. 

Welcome to Unmanned Systems 2015

I’m here in Atlanta at AUVSI’s Unmanned Systems 2015 conference and expo, where DroneLaw.Com has its own humble booth on the expo floor while I split my time attending various panel sessions.

Our Humble Booth

Our Humble Booth

Yesterday, I had the good fortune of attending a panel on Legal Updates on the Use of sUAS, which was moderated by Mickey Osterreicher, General Counsel for the National Press Photographers Association.  Sitting on the panel were James Williams, Manager of the FAA’s UAS Integration Office; Dr. Gregory McNeal, law professor and Forbes contributor whose reports on UAS integration have been priceless; trailblazing sUAS attorney Brendan Schulman of Pirker case fame; media lawyer Charles Tobin; and English solicitor (he had a funny joke about that word) Peter Lee.  

The session mainly centered on critiques of the FAA’s rulemaking decisions, including its interpretation of Section 333.  Mr. Williams handled the slings and arrows with grace, and provided some plausible – if not completely satisfactory – explanations of the FAA’s thinking on various issues. 

One of the primary themes was the FAA’s claim that it lacks statutory flexibility on interpreting its mandate under the FMRA.  Mr. Williams noted that he is not an attorney, so he relies on what his legal staff tells him. He said that Congress made the decision to define sUAS as “aircraft,” which in turn brings all UAS under the existing FAR framework until new rules can be crafted. That is why, he said, the FAA has no flexibility under Section 333 to waive the airman certification requirement.

The lawyers on the panel expressed their disagreement, and during Q&A I pointed out that the Chevron doctrine gave the FAA a lot more latitude than it was claiming.  But of course, Mr. Williams didn’t come here to be persuaded to change the FAA’s mind, but to explain the FAA’s point of view.

One of the more interesting comments came when Mr. Williams was asked about the FAA’s broad definition of “navigable airspace” for purposes of sUAS. He said, first, navigable airspace is wherever an aircraft can safely operate. Second, because Congress chose to define sUAS as “aircraft” in the FMRA, anywhere a small drone could fly safely was therefore navigable airspace.

A clever bit of circular reasoning. But there you have it.

The panel also discussed the proposed microdrone rule that Brendan Schulman filed on behalf of the UAS America Fund.  The debate focused on the issue of whether a small drone of less than three pounds posed a genuine risk to aircraft.  Mr. Schulman pointed out that, in the opinion of his client’s expert, that sort of mass was equivalent to a medium-sized bird.  The data we have on bird strikes indicates that such a mass poses no unusual threat to manned aircraft.

Mr. Williams rebutted that mass is just one aspect of the equation, the other is kinetic energy. He said that the FAA has been diligently search for available data on this question, but have so far come up empty. (I suggested that someone should rent Boeing’s “chicken cannon”.  Williams said that he has actually looked into that, but that it would be too much money for his budget.)

Finally, readers will want to know of any new insight into the timeline for publishing a final sUAS rule.  Williams said that the FAA was pleasantly surprised by the manageable number of comments – somewhere in the range of 4,700.  This bodes well for having a final rule published by next year.