We haven’t heard much in the way of news on commercial drone displays at Farnborough. This article gives us a hint of the level of interest, there.
Category Archives: 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.
FAA Faces Significant Barriers to Safely Integrating UAS Vehicles Into the National Airspace System
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.
Is the FAA Hurting Your Business?
I’ve heard from a lot of aerial photographers about how the FAA’s bullying tactics are seriously hurting – if not outright killing – their ability to make a living.
If you have an FAA horror story, please share in the comments.
FAA Scrambles to Cover Its Tracks
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
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?
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.