Author Archives: Brant Hadaway

FAA Faces Significant Barriers to Safely Integrating UAS Vehicles Into the National Airspace System

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To the surprise of no one who’s been paying attention, the FAA finds itself in a pickle.

A scathing new Inspector General report suggests that the office of the FAA tasked with integrating drones into the national air space is in disarray and suggests that the agency has so many hurdles to clear before drones can be safely integrated nationwide that it believes the day drones become commonplace may never come.

Here is the Inspector General’s summary:

Significant technological, regulatory, and management barriers exist to safely integrate UAS into the NAS. First, following many years of working with industry, FAA has not reached consensus on standards for technology that would enable UAS to detect and avoid other aircraft and ensure reliable data links between ground stations and the unmanned aircraft they control. Second, FAA has not established a regulatory framework for UAS integration, such as aircraft certification requirements, standard air traffic procedures for safely managing UAS with manned aircraft, or an adequate controller training program for managing UAS. Third, FAA is not effectively collecting and analyzing UAS safety data to identify risks. This is because FAA has not developed procedures for ensuring that all UAS safety incidents are reported and tracked or a process for sharing UAS safety data with the U.S. Department of Defense (DoD), the largest user of UAS. Finally, FAA is not effectively managing its oversight of UAS operations. Although FAA established a UAS Integration Office, it has not clarified lines of reporting or established clear guidance for UAS regional inspectors on authorizing and overseeing UAS operations. Until FAA addresses these barriers, UAS integration will continue to move at a slow pace, and safety risks will remain.

This suggests a shocking level of disarray within the organization. The easiest part of this process, and one that should have begun years ago, would be to establish a system for collecting safety data. But the FAA hasn’t even established a regime for sharing safety data with the DoD, let alone collecting data from the private sector. Given recent “enforcement” actions, one imagines that the FAA has assigned a roomful of interns to collect safety data by monitoring news stories on the internet.

It’s like asking Johnny to hand in his essay and finding that Johnny hasn’t even begun researching his topic, let alone started writing. Perhaps Johnny can be forgiven. But a major US regulatory agency with oversight of a critical public safety function shouldn’t be cut any slack. And this is not just endangering public safety; it’s holding up billions of dollars in business investment that promises to create many high-paying jobs. It’s not like we have a surplus of economic growth flying around, these days.

POTUS needs to start firing people. But I’m not holding my breath.

FAA Scrambles to Cover Its Tracks

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This report on gigaom.com is the best summary I’ve read to date on why the FAA has been forced to scramble for a way out of the box that it has created for itself:

The FAA is in a pickle. For years, the aviation regulator dragged its feet on rules for unmanned aircraft. Now the skies are filling up with a new generation of lightweight consumer drones that are proving popular with everyone from photographers to journalists to search-and-rescue teams — and the FAA doesn’t have the legal tools to deal with them.

That pretty well sums it up. My only quibble with the article comes from this sentence:

The FAA’s current predicament is rooted in an administrative judge’s surprise ruling last fall that the agency had no authority to fine a man $10,000 for using a drone to take photographs for the University of Virginia.

The ruling wasn’t a surprise at all, at least not to us and others who followed the issue closely. As the article subsequently points out, the FAA was trying to enforce a policy statement; it has never issued enforceable regulations governing the use of model-type aircraft. Having failed to do so, and having had its ass handed to it by an administrative law judge of the NTSB, the FAA has resorted to trying to bully a growing industry.

The FAA has now seized on language from the FAA Modernization and Reform Act of 2012 which carves out an exception for model aircraft to its mandate for the FAA to promulgate regulations governing unmanned aircraft systems by 2015. But as the article and commenters like Brendan Shulman point out, the Act’s model aircraft exception was intended by Congress to apply to regulations that the FAA has yet to promulgate. The best the FAA can hope to accomplish is to establish a definitional boundary for those regulations, once they have been issued (but even that definitional boundary seems arbitrary and capricious, since there is no meaningful distinction between someone who operates a line-of-sight, model-type aircraft for commercial purposes vs. recreational purposes).

The industry has been desperately waiting for the FAA to do its job and create a framework for the operation of UAS vehicles. Unfortunately, the FAA has chosen the path of lawlessness.

The Fight Over Drones As Seen From a Drone

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Here’s a pretty cool way of explaining some of the legal issues surrounding drones in a graphic nutshell. It begins with the question, “Who owns the air above my house?”

The full article can be viewed here. The reporter, Steve Henn, seems to have that rare gift of being able to explain complex issues in a simple, straightforward manner. Heck, he’d make a pretty good lawyer (no, really!).

Did the FAA ground Amazon Prime Air?

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Several news outlets have reported that recently published rules from the FAA signal an intent to shut down Amazon’s planned drone delivery service. That’s not accurate.

What the FAA has done here is to submit proposed rules on the definition of model aircraft for public comment. It doesn’t take a careful reading to discern that the FAA wants to implement regulations that would effectively cure some of the deficiencies found by the administrative law judge in the Raphael Pirker decision. In particular, that judge found no enforceable basis for distinguishing between persons who operate model aircraft for pleasure and those who do so for commercial gain.

One of the definitions proposed by the FAA would allow a hobbyist to use a model aircraft to move a box from point A to point B, but not allow someone to do so for a fee. Some saw that as a shot across Amazon’s propwash. But it seems unlikely that Amazon’s PrimeAir system would have qualified as a model aircraft system anyway because, based on available reports, it would operate beyond line of sight.

The more interesting proposed definition from the FAA would prevent model aircraft operators from using point of view goggles, not even with a spotter assisting with identification of other nearby aircraft. By doing so, the FAA has expressed its determination that line of sight must mean the ability to keep the aircraft in view at all times from the point of operation. In addition to hurting a lot of hobbyists who use this technology to fly their drones, this rule would prevent businesses from using it to operate over the horizon while still claiming to fall within the model aircraft exception.

We think of this more as battle space preparation for what the FAA proposes for rules governing over the horizon unmanned aircraft systems. We expect that to be very interesting, when it comes.

Drone Law to Become Big Business?

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This April 9 article from Fortune talks about the types of legal issues implicated by this emerging industry. I like this summary from Brendan Shulman:

Given the myriad applications for the technology, the scope of “drone law” is broad, stretching from freedom of speech and press concerns to issues around intellectual property or land use rights, as well as more practical matters of insurance and liability.

Translation: This won’t just be about how the government regulates unmanned air systems. Drones, or unmanned aircraft systems, will become intertwined with many aspects of our lives and our business environment.

Consider this bizarre incident in which a woman attacked a young man on a Connecticut beach for operating an aerial photography drone. In addition to the criminal offenses committed, the incident raises legal questions regarding the limits of privacy, property rights, and the freedom to simply take photographs in the public square.

North Carolina House passes drone bill

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It’s not clear from the report whether this measure is just intended to regulate line-of-sight, model-type aircraft, but that seems to be a reasonable supposition:

Under the legislation, drone operators would have to be 18, pass a knowledge and skills test (still to be developed) and require a license for commercial use. Once the FAA permits commercial use, it still wouldn’t be allowed in North Carolina until the Department of Transportation implements testing and licensing or until May 31, 2015, whichever comes first.

The reporter seems confused about the FAA’s “ban on commercial use.” I will post an update on this after getting clarification.

UPDATE: The bill is posted online, here.

This appears to cover every type of unmanned aircraft that is not a model aircraft. In a normal world in which the FAA had promulgated timely regulations, this might be regarded, at least in part, as an unconstitutional usurpation of federal regulatory authority. My guess is that the NC legislature has grown weary of waiting on the FAA.

Stay tuned.