Category Archives: sUAS

Singer v. Newton: Are State and Local Governments Now Prohibited From Regulating Drones?

Posted on by

The short answer is, no.  The Singer decision is narrow, non-binding, leaves other parts of the ordinance in place, and expressly leaves the door open for Newton (and other state and local governments) to enact more narrowly-tailored regulations on drones.

In a way, the four challenged provisions of the Newton ordinance were an easy call, because each conflicted with or effectively usurped existing FAA regulations.  This allowed the court to invoke the doctrine of “conflict preemption,” as opposed to what is called “field preemption.”

“Field preemption” is invoked when the federal government occupies the entire field of an area of regulation that is within its Constitutional authority, even though it might not have enacted a specific regulation pertaining to the challenged state or local law.  Significantly, the court rejected field preemption because the FAA has expressly left the door open to some state regulation of drone use (such as the privacy protections of Florida’s FUSA statute, which I discussed, here).

“Conflict preemption” means exactly what it implies:  That when the federal government regulates an area within its Constitutional authority, those regulations are the supreme law of the land and the states may not enact laws that would contradict or undermine the federal regulation.

Briefly:

Section (b) of the Newton ordinance provided that “[o]wners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .”  Because the FAA has held itself out as the exclusive authority for registration of aircraft, striking down this provision of the ordinance was that rare bird in litigation: a no-brainer. This is probably the broadest part of the decision, in that the court made it clear that the city may not require any kind of drone registration, period.

The ordinance at subsection (c)(1)(a) prohibited drone flights below an altitude of 400 feet over any private property without the express permission of the property owner.  Also, subsection (c)(1)(e) prohibited flying drones over public property, at any altitude, without prior permission from the city.  The court found that these provisions had the effect of banning all drone flights in the city, because FAA regulations restrict sUAS flights to below 400 feet AGL.  While the FAA left the door open to some local regulation of drones, that should not be interpreted as license to effectively ban drone operations. This leaves the door open to the possibility of a more narrowly-drawn ordinance.

Finally, subsection (c)(1)(b) of the ordinance prohibited drones from being operated “at a distance beyond the visual line of sight of the Operator.”  This was plainly duplicative of Part 107 and, as such, tended to usurp an express regulation of the FAA (which could, at some time in the future, change its mind about BVLoS operation).

The decision ends with a note that Newton is welcome to craft narrower regulations.  Precisely what those regulations will look like is hard to say.

Whatever the case may be, one should not take this as an invalidation of drone regulations in one’s particular state or city.  The court only addressed these specific provisions of the Newton ordinance, and the decision has no binding effect on other courts, let alone other states and municipalities.

But let us not detract from the significance of this win, either.  Major kudos are in order for the petitioner, Dr. Michael Singer, and his attorneys.

sUAS Apples to Amazon Oranges

Posted on by

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.

FAA Announces UAS Pathfinder Program

Posted on by

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

Posted on by

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.

 

FAA Undertakes Summary Grant Process for Section 333 Exemptions

Posted on by

The FAA is touting its “summary grant” process that allowed to issue 30, simultaneous Section 333 Exemptions, last week.  In other words, you are eligible for a summary grant if your petition looks sufficiently similar to a previously granted petition:

Although the FAA still reviews each Section 333 petition individually, the agency can issue a summary grant when it finds it has already granted a previous exemption similar to the new request. Summary grants are far more efficient because they don’t need to repeat the analysis performed for the original exemption on which they are based. Summary grants are a tool the FAA can use in all exemption areas, not just UAS.

The FAA’s experience in reviewing the Section 333 petitions shows they generally fall into two categories: film/television production and aerial data collection. Most exemptions in these categories will likely be handled through the summary grant process. For unique requests, the agency will still publish the petition in the Federal Register for public comment and will conduct a detailed analysis.

In other news:

  • The agency now allows operations under these exemptions by people who hold a recreational or sport pilot certificate. Previously, Section 333 operators were required to have at least a private pilot certificate. The newly added certificates are easier to obtain, and therefore less costly, than a private pilot certificate.
  • A third class medical certificate is no longer required.  Now, a Section 333 operator only needs a valid driver’s license to satisfy the medical requirement.  This change is consistent with the agency’s approach for sport pilot certificate holders, who may fly light sport aircraft with a driver’s license and no FAA medical certificate.

The FAA’s sUAS NPRM: It’s Time to Speak Up

Posted on by

Like many, we were pleasantly surprised by liberality of the FAA’s NPRM for sUAS.  Those who have been watching the FAA’s conduct, especially with regard to its often-tedious requirements for Section 333 exemptions, expected much more restrictive proposed rules that would have imposed impossibly high barriers to entry to all but the most well-financed operators.

Perhaps this is simply a matter of the FAA recognizing reality.  Pages 9-10 of the DOT’s released-then-un-released Regulatory Evaluation reveal a telling point:

While commercial small UAS operations are being operated without FAA regulatory approval, the FAA has no method to quantify their historical usage. However, as civil applications of UAS develop, a demand for legal and safe access to the NAS for commercial and other non-recreational purposes has emerged. This proposed rule announces our plan to work with the emerging UAS industry to build a safe environment; eventually leading to the inclusion of small UAS into the NAS for commercial and other non-recreational purposes as well as satisfying the congressional direction from P.L. 112-95.

In other words, the agency seems to be saying, we have no idea how many non-compliant operators are out there, but it’s probably a significant number.  Therefore, we think it better to have liberal rules that will bring more operators into the fold of compliance.

That seems to us like a smart move.  The FAA has no police force patrolling the cities and countryside, and its program to enlist local law enforcement appears to have fallen flat.  In any event, no federal agency can Constitutionally direct the activities of local law enforcement.

Indeed, while it is not our role to psychoanalyze a government agency, we see this NPRM as a case of bargaining – threatened with a complete loss of control over all but the most well-financed commercial sUAS operators, the FAA is promising to not be too onerous in exchange for a little more control than is actually necessary to achieve the purpose of safe integration.

It is nevertheless important for industry stakeholders not to be disarmed by this approach, but to carefully evaluate the NPRM on its merits and to engage the rulemaking process by filing comments.  For example, do you believe that the proposed rules strike the right balance for pilot certification?  Do you believe that the visual-line-of-sight requirement is too onerous?  Do you believe that there could be more efficient ways of protecting the airspace around airports that minimize barriers to entry for commercial sUAS operators?

We will air out our own thoughts on these questions in subsequent posts.  But in the meantime, make no mistake: Interested parties such as the Airline Pilots Association can be expected to submit comments urging much more restrictive requirements for pilot certification, air-worthiness certification, and operational parameters.  Your comments will be important to making sure that the final rules are as reasonable and entrepreneur-friendly as possible.

(As of this writing, the NPRM has not yet been published in the Federal Register, so the 60-day deadline for comments has not yet been triggered. But one should assume that the deadline will be sometime this Spring.)

Should you wish to engage counsel to assist you with the comment process, feel free to contact the law firm of Diaz, Reus & Targ, LLP at 305-375-9220 and ask for Brant Hadaway.  Or write me an email at bhadaway@diazreus.com.  If I can’t assist you, I’ll find you someone who can.

UPDATE:

The Wall Street Journal published a report yesterday which hints at the level of non-compliance with the FAA’s prohibition on commercial drone operations:

“Officially [the FAA’s] stance is, You can’t do that. But they say you can’t drive 70 miles per hour on a 50-mile-per-hour freeway,” said Peter Sosnowski, preconstruction director for Webcor Builders, a commercial construction company and San Francisco unit of Japanese firm Obayashi Corp. Webcor has used drones to map two big U.S. construction sites, he said. “Until someone gets caught and penalized, drone businesses will continue to do business as is.”

While we were away….

Posted on by

The FAA nefariously decided to release its NPRM on sUAS while I am in a remote area of Colorado with a useless wifi connection (writing this post via iPhone).

My initial reaction is one of relief. The proposed rules seem much more liberal and business-friendly than many expected. At least we can say that the FAA is not taking an adversarial view of things. That is very encouraging.

A question on the minds of many will be whether, given these proposed rules, it makes sense to pursue a 333 exemption? There is no one-size-fits-all answer to that (i.e., it’s what lawyers call a “fact-sensitive” question).

I will have more on this, once I’m comfortably esconced in my office in Miami.

FAA Grants 5 More 333 Exemptions

Posted on by

Progress?

The four companies that received exemptions want to fly UAS to perform operations for aerial surveying, construction site monitoring and oil rig flare stack inspections.

 

“Unmanned aircraft offer a tremendous opportunity to spur innovation and economic activity by enabling many businesses to develop better products and services for their customers and the American public,” said Transportation Secretary Anthony Foxx. “We want to foster commercial uses of this exciting technology while taking a responsible approach to the safety of America’s airspace.”

 

The commercial entities that received exemptions today are Trimble Navigation Limited, VDOS Global, LLC, Clayco, Inc. and Woolpert, Inc. (two exemptions). The FAA earlier granted exemptions to seven film and video production companies.

We’re heartened by Secretary Foxx’s comments.  But really, if the FAA continues this piecemeal approach – granting the occasional tranche of section 333 exemptions while patting itself on the back – the only “economic activity” we will see is more investment money diverted abroad.

A Risk-Based Approach to FAA Jurisdiction?

Posted on by
Apache

A danger to the national airspace.

As our readers know, the NTSB has confirmed the FAA’s assertion of jurisdiction in the Pirker case to cite hobbyists for the reckless operation of model aircraft.  Last week, we pondered how to define the boundaries of that jurisdiction, using the Commerce Clause as a point of reference.

Regardless of what one may think of the NTSB’s logic, based on the broad, post-New Deal interpretation of the Commerce Clause it is at least conceivable that the FAA’s jurisdiction extends that far.  But we think that Congress has already signaled a different approach.

FMRA section 336 specifically excludes model aircraft from regulatory oversight, except as to those operators “who endanger the safety of the national airspace system.”  This seems like a clear statement that the FAA’s authority to regulate model aircraft is risk-based.  In other words, the FAA should look not at whether a particular device is capable of flight, but at the nature of the activity in question, and the risk that a particular device is likely to pose to the national airspace.

This of course requires a fact-based analysis, which will vary, case by case.  But it doesn’t mean that the FAA can’t draw reasonable, bright lines on what it should regulate, and what it should leave alone.  In fact, it’s already been done, quite close to home.

Transports Canada has recently published a very simple explanation of its own, risk-based jurisdictional approach for sUAS.  This graphic lays it out in a single page:

Infographic_Permission_to_fly_a_UAV_Web_English_Page_1

This is remarkably sensible.  If you’re a hobbyist, and your drone weighs 35 kg or less, then use common sense and happy flying.  The rules for exempt professionals are also clear.

We would urge the FAA to take a close look at it.

So, if you’re getting paid, the FAA says to get a pilot’s license

Posted on by

That seems to be the gist of this story, which has taken the internet by storm, today:

Highly anticipated federal rules on commercial drones are expected to require operators to have a license and limit flights to daylight hours, below 400 feet and within sight of the person at the controls, according to people familiar with the rule-making process.

The drone industry has awaited commercial rules for about six years, hoping the rules would pave the way for widespread drone use in industries such as farming, filmmaking and construction. Current FAA policy allows recreational drone flights in the U.S. but essentially bars drones from commercial use.

…

In addition, pilot certifications likely to be proposed by the FAA would typically require dozens of hours flying manned aircraft, according to people familiar with the rule-making discussions. Drone proponents have resisted requiring traditional pilot training for drone operators.

There’s a lot to unpack, here. But the upshot is that, assuming the report is accurate, hidebound thinking has prevailed over common sense: Two operators, side by side, operating the same model, under the same conditions will be subject to different requirements, based on the mere fact that one is getting paid and the other is flying for pleasure.

Leaving that aside, requiring anyone to go to traditional flight school to become licensed to operate a small, remote-controlled model-type aircraft makes about as much sense as requiring someone to be trained in an M1 Abrams tank as a condition for being allowed to fire a pistol on a shooting range.

We will obviously have much more to say about this as the news unfolds.