Responding to this week’s NTSB ruling, the author of this op-ed in today’s L.A. Times suggests that the FAA should pull back from its regulation over “hundreds of types of flying devices that are not even capable of reaching the minimal safe altitude of manned airplanes.”
Small drones are not built for lengthy interstate flights at altitudes where conventional airplanes fly, so why should a federal agency be the chief regulator of these devices? Rather than seeking to expand its regulatory jurisdiction all the way down to the ground, the FAA should advocate for itself a more limited role in a collaborative federal, state and local regulatory scheme tailored to the unique attributes of drone technologies.
The author suggests that the FAA limit itself to “aspects of drone regulation that are most appropriately implemented at the federal government level.” For example, FAA safety standards could require the incorporation of geo-fence technology “to prevent operators from flying their drones into the airspace surrounding hundreds of airports around the world.”
This calls to mind two points we have made on this blog. As we noted yesterday, Congress appears to have expressed an intent to limit the FAA’s jurisdiction to risks to the National Airspace. We think that any risk posed by small drones can be adequately addressed by regulating them as consumer products rather than as traditional aircraft. Geo-fencing and built-in height and radius limitations are among the features that could be required to be incorporated in over-the-counter drone technology.
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.
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.
The NTSB has spoken. Short version: The NTSB concludes that the FAA has jurisdiction to regulate the safe operation of model aircraft, and has remanded the Pirker case for findings of fact on whether Pirker operated his RITEWING Zephyr drone in a reckless manner. The full decision is here.
The NTSB begins by defining the scope of its opinion:
At this stage of the proceeding … we decline to address issues beyond the threshold question that produced the decisional order on appeal: Is respondent’s unmanned aircraft system (UAS) an “aircraft” for purposes of § 91.13(a), which prohibits any “person” from “operat[ing] an aircraft in a careless or reckless manner so as to endanger the life or property of another”? We answer that question in the affirmative.
The law judge’s ruling in Pirker’s favor turned on the conclusion that the FAA had never asserted jurisdiction over model aircraft, and that the FAA’s position now 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).” The NTSB unequivocally rejects that conclusion:
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.
From there, the NTSB concludes that the FAA’s interpretation of its jurisdiction as allowing it to prohibit the “reckless” operation of small, unmanned aircraft under Section 91.13(a) is reasonable. The NTSB is not swayed by the voluntary guidelines found in Circular 91-57:
Nothing in Advisory Circular 91-57, on its face, reflects any intent on the part of the FAA to exempt operators of unmanned or “model aircraft” from the prohibition on careless or reckless operation in § 91.13(a). At most, we discern in the advisory circular a recognition on the Administrator’s part that certain provisions of the FARs may not be logically applicable to model aircraft flown for recreational purposes. But nothing in the text of the document disclaims, implicitly or explicitly, the Administrator’s interest in regulating operations of model aircraft that pose a safety hazard. More importantly, the advisory circular puts the reasonable reader on notice of the Administrator’s intent to ensure the safe operation of model aircraft by appropriate means.
Writing at Forbes, Gregory S. McNeal emphasizes that small drone operators are now on notice that they can be fined for reckless operation of any unmanned aircraft.
Asked for comment, Pirker’s attorney, Brendan Schulman, kindly responded:
While we disagree with the decision, today’s NTSB ruling in the Pirker case is narrowly limited to whether unmanned aircraft systems are subject to an aviation safety regulation concerning reckless operation, an issue that the NTSB has said requires further factual investigation before a penalty is imposed. The more significant question of whether the safe operation of drones for business purposes is prohibited by any law was not addressed in the decision, and is currently pending before the D.C. Circuit in other cases being handled by Kramer Levin. We are reviewing the options for our next steps in the Pirker case.
We agree with Mr. Schulman’s assessment. This decision only goes so far as to say that the FAA can prohibit the reckless operation of model aircraft, the FMRA’s Special Rule for Model Aircraft notwithstanding (apparently). It reaches no conclusions on whether Mr. Pirker should be fined. However, if the law judge finds that Pirker operated his aircraft in a reckless manner, he might have no choice but to sustain a fine.
As a practical matter, we would guess that the NTSB was influenced in its thinking by a growing number of press reports – some of which could be taken more seriously than others – about reckless conduct by amateur drone operators. Perhaps the NTSB even read a recent article in which an amateur operator begged for someone to stop him before he hurt somebody. For now, we can only speculate.
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.
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.
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.
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.
Gregory McNeal has written an in-depth article on Forbes discussing the relationship between Disney’s patent applications and the need for the FAA to enact regulations that encourage, not stifle, innovation. The article is informative and well worth reading in full, but I’ll just excerpt a couple of points:
If Disney tried to use drones today, the FAA would immediately order them to cease their operations. That’s because the FAA believes that the commercial use of drones is unlawful (barring some limited exceptions) until such time as the agency promulgates new regulations.
Yes, the FAA’s rules are absurd for a number of reasons, not least of which is that Disney operates on vast areas of private land. Granted, the Disneyland property is surrounded on all sides by the city of Anaheim, but Disney World covers some 47 square miles. Shouldn’t such a large private property owner – especially one that regularly launches fireworks hundreds of feet into the air – be allowed to innovate within certain parameters? Say, below a certain altitude?
Even if the FAA promulgates new regulations, it is not clear that they will allow Disney’s flights. That’s because many believe that the FAA is planning to issue regulations that privilege certain types of drones and drone manufacturers — specifically those drones that have been previously used by the military or that are produced by major aerospace companies.
Government bureaucracies tend to model their rules based on what they know. And what the FAA knows about drones really doesn’t go much beyond what the public knows – i.e., drones that are used for military and intel purposes. Nothing scares the bejesus out of a bureaucrat more than the thought of something he doesn’t understand or, worse, something he can’t control. And private sector innovation threatens to force the FAA to accept the inherent risk in allowing such innovation to flourish.
There is also the problem, as McNeal mentions, of regulatory capture. Big government agencies tend to be part of a revolving door between those who regulate and those who are regulated. Many former bureaucrats become lobbyists for industries they once regulated. Many former leaders of regulated industries become heads of bureaucracies that they once answered to. The results in a feedback loop of money and industry cronyism, as each knows that the health of the other can affect his or her future career.
Seen from this point of view, an innovator like Disney must seem like an interloper, or a misfit. People who have been going through the revolving door just don’t know what to make of it.
Finally, McNeal notes Disney’s safety-consciousness. As someone who once worked at a Disney theme park (I was a monorail driver at Disney World – I won’t mention how long ago), I can personally vouch for how obsessed Disney is with safety. Disney’s corporate culture, how it values its public image, and of course its underwriters, all place excruciating pressures on Disney’s design and operations personnel to give Disney guests an experience that is both memorable and safe.
Disney is an ideal laboratory for the very sort of innovation that the FAA should be encouraging. Let’s hope that the FAA does the right thing.
News is circulating about three petitions that were filed today against the FAA challenging its special rule interpretation of “model aircraft” under the FAA Modernization Re-Authorization and Reform Act of 2012. The petitions are available for viewing here, at Motherboard. I haven’t checked the rules on this, but I take it that merits briefs will be filed in the coming months.
Major kudos to Peter Sachs, founder of the blogs, Drone Pilots Association and Drone Law Journal. Peter is a true gentleman and a great advocate who has done yeoman’s work on this issue.
