The Meaning of Yesterday’s NTSB Ruling

All Is Not Lost

Yesterday’s ruling from the NTSB, overturning Judge Geraghty’s order in the Pirker case, caused quite the twitter storm, and practically crashed our Google news feed. So, a lot of virtual ink has already been spilled on this. But much of it has been either poorly written or flat-out wrong.

We stand by our initial take, which is that the scope of this ruling is ultimately quite narrow. We also think it stands on shaky ground, and could be vulnerable on review by an Article III court.* Here’s why.

First, the opinion was narrowly tailored to the question of whether a model aircraft falls within the FAA’s enforcement authority under 14 C.F.R. § 91.13(a), which provides that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” The key finding was that a model aircraft is an “aircraft” under 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1. Section 40102(a)(6), the NTSB concluded:

defines “aircraft” as “any contrivance invented, used, or designed to navigate, or fly in, the air.” Similarly, 14 C.F.R. § 1.1 defines “aircraft” for purposes of the FARs, including § 91.13, as “a device that is used or intended to be used for flight in the air.” The definitions are clear on their face. Even if we were to accept the law judge’s characterization of respondent’s aircraft, allegedly used at altitudes up to 1,500 feet AGL for commercial purposes, as a “model aircraft,” the definitions on their face do not exclude even a “model aircraft” from the meaning of “aircraft.” Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. An aircraft is “any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless.

That sounds like a broad conclusion. It is, and it isn’t. The NTSB points out that, at the time of the original Federal Aviation Act:

so-called “drones” were largely the currency of science fiction. Congress demonstrated prescience, however, in the early definition of “aircraft”; it expressly defined the term as any airborne contrivance “now known or hereafter invented, used, or designed for navigation of or flight in the air.”

… [The FAA] may choose to exclude certain types of aircraft in a practical sense, by refraining from bringing a charge under the FARs against a model aircraft operator; Advisory Circular 91-57 implies such a practice, and the processes outlined in 14 C.F.R. §§ 11.81 – 11.103 provide a more formal means of seeking exemption. However, for the case sub judice, the plain language of § 91.13(a), as well as the definitions quoted above, does not exclude certain categories of aircraft.

Turning to whether the FAA correctly applied Section 91.13(a) to Pirker’s model aircraft, the NTSB points to the doctrine of judicial deference to agency interpretations of the statutes they are charged with enforcing. Agency interpretations will generally be accorded deference if the agency can point to a reasonable basis in the underlying statute. The NTSB concludes that, since nothing in the history of the statute or the FAA’s enforcement actions indicate a clear intent to categorically exclude model aircraft from the definition of “aircraft,” the FAA’s interpretation should be upheld as reasonable.

But the NTSB also hints that the scope of this conclusion will be constrained by practical limits on the FAA’s prosecutorial discretion. Simply put, the FAA cannot prosecute every operator of a model aircraft who does something dangerous or foolish. The decision also does not grant the FAA license to enact a wholesale prohibition on the operation of model aircraft, or even require licensing for hobbyists.

In summary, if you are an amateur hobbyist who operates a model aircraft within traditional parameters – less than 400 feet, within line of sight (precise definitions are being sorted out in the courts), and you refrain from doing anything stupid, the chances of getting a citation from the FAA are exceedingly remote.

Pirker might be able to argue that the NTSB’s ruling is inconsistent with the scope of the FMRA’s Special Rule for Model Aircraft, which we discussed here. The Special Rule contains a statutory construction provision:

Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.

FMRA, Sec. 336(b) (emphasis added).

Although FMRA was enacted after Pirker’s “offending” flight, he could argue that this statutory provision shows that the FAA’s interpretation is directly at odds with Congressional intent, vis a vis model aircraft. A threat to individuals and their property, he might contend, is not a threat to the “safety of the national airspace system.” In other words, unless a model aircraft has somehow threatened the safety of the national airspace, as that has been traditionally defined, its unsafe operation should be a matter for local police authorities, not the FAA.

Such an argument would have sound Constitutional underpinnings. Congress derives its authority to regulate airspace from the Commerce Clause of Article I, which gives Congress the power to regulate interstate commerce. Granted, the courts have construed this power so broadly that it is by now practically meaningless as an enumerated limitation on the federal government. But it is generally recognized that the power extends to regulation of anything that has a material impact on interstate commerce.

What constitutes an effect on interstate commerce is typically a fact-sensitive question. Hypothetically, prosecuting a model aircraft operator who buzzes old ladies on a sidewalk is not something that even remotely affects interstate commerce, whereas an operator who flies his Phantom II into the air intake of a commercial jet does affect interstate commerce.

It will be interesting to see whether Mr. Pirker takes up these questions on appeal to an Article III court.

* An Article III court is a court established by Congress under Article III of the U.S. Constitution. The NTSB court is an administrative court and is therefor part of the Executive Branch under Article II. Article III courts have jurisdiction to hear appeals from the decisions of administrative courts.

Hogan Lovells Launches UAS Group

Global law firm Hogan Lovells has announced the formation of its UAS group.

“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.

Prime Air Is Hiring

Amazon Prime Air

Back when Jeff Bezos announced Prime Air on an installment of 60 Minutes, a lot of people (many of whom should have known better) dismissed it out of hand as a publicity stunt. We, on the other hand, were inspired by the announcement, and ultimately decided to create this blog based in part on what we saw as the serious potential behind Amazon’s efforts.

Subsequent events have borne out the seriousness of Amazon’s goals. Earlier this year, we reported on Amazon’s application to the FAA for an exemption to allow them to test Prime Air at their U.S. facility in the Seattle area. That application is still pending, as far as we know at this time.

But in case you’re still not convinced, you might want to consider the fact that Prime Air is now hiring. Yep, that’s right. A listing of currently open positions can be found here. Spread the word!

Facebook rolls out its high-altitude drones project


Facebook is rolling out plans to deploy high-altitude drones that would allow off-grid connectivity for users of its network. In addition to challenges in design, materials and technology, these drones will take us into some uncharted legal territory:

In order to fly its drones for months or years at a time, as it would have to do in order to provide consistent connectivity, Maguire explained, Facebook’s drones will have to fly “above weather, above all airspace,” which is anywhere from 60,000 to 90,000 feet in the air. That puts these drones on tricky regulatory footing, since there are essentially no regulations on aircraft that fly above 60,000 feet in the air. “All the rules exist for satellites, and we’re invested in those. They play a very useful role, but we also have to help pave new ground,” Maguire said.

Facebook and its counterparts will also have to find a way around regulations dictating that there must be one human operator to every drone, which could drastically limit the potential of such an innovation to scale. For proof, Maguire pointed to a recent solar drone demonstration by a British company, which ended after two weeks to give the pilots a break. “It’s like playing a videogame for two weeks straight with no rest,” he said. “We need a regulatory environment that will be open to one pilot perhaps managing 10 or 100 drones. We have to figure these things out.”

Other than the occasional spy plane or research balloon, what other traffic is at that kind of altitude?

FAA Fails to Include Drones in NextGen Plans


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.

So, we take it there’s no passing lane?

More drone law-blogging at the WaPo

Michael Berry and Nabiha Sayed have a new guest post on developments in drone law at The Volokh Conspiracy blog. Today, they provide a pretty solid overview of the FAA’s slow start at promulgating UAS regulations. Recommended reading for anyone who might be new to the topic.

They promise to review the various lawsuits that have been filed, tomorrow.

A week of drone law blogging at the Washington Post!

Michael Berry and Nabiha Syed are guest-blogging at The Volokh Conspiracy this week in a series dedicated to the regulation of private drone use. Their first post, on “journo-drones,” is here. Today, they write about philosophical approaches to drone regulation:

As policymakers consider drone regulation – particularly with respect to privacy and safety – the possible fields of regulation fall into five principal realms: operators, flight, purpose, property and surreptitious use. Some of these categories face practical difficulties, while others present constitutional issues. Nevertheless, these five fields offer a framework to help make sense of the legislation and regulation emerging around the use of drones.

The authors intend to visit the history of the FAA’s piecemeal approach, tomorrow.

In the meantime, we would suggest that they consider the consumer product approach to sUAS regulations for one of their posts.

Realtors weigh in on rules for integrating drones

A powerful realtor lobbying firm will be working with the FAA on developing rules governing the use of drones in aerial photography:

The National Association of Realtors announced last week it was invited to sit on a newly formed working group focused on regulating drones, or unmanned aerial vehicles, and how to integrate them into the ‘‘national airspace system.’’

They are asking pointed questions about the FAA’s ban on commercial drones:

‘‘Aerial real estate photography and videography is nothing new,’’ said Brian Saver, a principal with McWilliams Ballard in West Palm Beach who uses video taken from drone flights to market his listings. ‘‘It’s just been done from real helicopters for ages. Where was the outrage there? Drones simply make it more affordable and accessible to more realtors.’’

We’re not sure that the helicopter analogy is entirely correct, but you get the point.

Because when you get down to it:

Many say the demand for drone work, and money to be earned, outweighs the risk of getting a cease and desist order from the FAA.

‘‘From an economic standpoint, we can’t just stand by and let this business pass,’’ Paul Morris, owner of Miami Aerial, told The Palm Beach Post last month. ‘‘My bone of contention is an amateur can go fly when a professional can’t. Who is more apt to have a problem?’’

It really doesn’t make much sense. ‘Shame that regular people are noticing.

Robb Heering, a Wellington attorney who specializes in federal regulatory law and is a licensed realtor with his own firm, said the FAA’s warnings against commercial use are all bluster.

He doesn’t believe it has any authority to stop realtors from using drones.

We like the defiant attitude on display in this article.

What’s the hold-up on drone regulations?

Forbes has a wide-ranging article on the FAA’s hold-up on drone regulations, and what it means for commercial innovation. It’s already familiar territory for those of us who follow the issue, but this passage regarding the FAA’s explanation jumped out at us:

So what’s the hold up? A spokesperson for the regulator told Fortune that the agency has made “significant progress toward that goal, even as it dealt with disruptions due to sequestration and a three-week government shutdown.” Then there are technical issues to work through: the spokesperson said, the agency is developing a mechanism through which manned and unmanned aircrafts can communicate to avoid collisions.

“This is an exciting new technology,” the FAA said in statement. “People want to see what it can do—and what they can do with it. Detect and Avoid and Command and Control are two key integration-related research areas that must be addressed before routine beyond-line-of sight operations will be authorized to fly.”

(emphasis added).

By emphasizing beyond-line-of sight operations, the FAA seems to tacitly admit that it has no answer for why it is holding up regulations for line-of-sight (LOS) operations. All that the agency has managed to do thus far is pick a fight over how narrowly it can define LOS. Meanwhile, it goes around playing whack-a-mole with operators who pose no real threat to public safety.

As one interviewee comments, the FAA needs to change to a risk-based approach. Give some leeway for the development of low-altitude operations that can be safely managed without posing a risk to air traffic while, at the same time, technology is being developed for the full integration of beyond-LOS vehicles. The delay is killing potential job growth and investment.

Many drone advocates fear that the ongoing delay will make the U.S a laggard, behind countries like Canada, which issues flying permits in couple of weeks. In 2013, Canada’s airspace regulator issued 945 drone permits—a significant increase compared to 345 issued in 2012. Here in the U.S. the FAA has issued 700-750 authorizations since 2006.

Getting your ass kicked by Canada is never a good sign, but that’s an embarrassing statistic.