The FAA Should Pull Back

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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.

The Meaning of Yesterday’s NTSB Ruling

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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.

The NTSB Remands the Pirker Case [Updated]

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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.

UPDATE: Read this for our follow up thoughts.

Stop worrying, learn to love drones *

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Writing for the Brookings Institution, drone policy expert Gregory McNeal has published a report urging Congress and state legislatures not to overreact when it comes to privacy concerns over drones. McNeal argues, and we agree, that a “technology-centric” approach to legislating privacy protections is misguided, and ends up missing the point:

[Various] legislative efforts have been aimed at restricting the government’s use of drone technology, while largely allowing the government to conduct identical surveillance when not using drone technology. This absurd anachronism is intentional, as privacy advocates have explicitly chosen to capitalize on the public interest and attention associated with the demonization of drone technology as a way to achieve legislative victories. These advocates are admittedly not focused on more sensible legislation that addresses harms irrespective of the technology used.

He notes that current unmanned systems are actually not as effective at surveillance as manned aircraft (which consistent with a point that we have previously made, here). He also points out that banning law enforcement from using drones, in the absence of a warrant, leads to absurd results. For example, using drones to monitor the Boston Marathon – a public event – might benefit public safety. But the law doesn’t allow the Boston PD to do so unless it obtains a warrant by demonstrating probable cause in an application:

That application would need to define with particularity the place to be searched or the persons to be surveilled. All of this would be required to observe people gathered in a public place, merely because the observation was taking place from a drone, rather than from an officer on a rooftop or in a helicopter. In a circumstance like a marathon, this probable cause showing will be difficult for the police to satisfy. After all, if the police knew who in the crowd was a potential bomber, they would arrest those individuals.

Even more absurd is that

in the states where drones have been banned (unless accompanied by a warrant), the police have not been prohibited from using any other type of surveillance equipment—just drones. This technology-centric approach has done little to protect privacy, but will certainly harm public safety, depriving law enforcement of a tool that they could use to protect people.

After reviewing a series of court opinions governing the current state of aerial surveillance, McNeal goes on to provide some recommendations for how legislatures should think about their approaches to drone surveillance regulations. Read the whole thing.

*In what seems like a reference to “Dr. Strangelove,” arstechnica distills the message to “stop worrying, learn to love drones.”

“I’m an idiot, someone stop me!”

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An amateur Phantom II operator (or, perhaps we should say, former operator) did something stupid that could have hurt someone, and now laments the fact that what he was doing isn’t illegal:

The thing is, there are basically zero regulations in the U.S. preventing what I did from happening again. There is no age requirement or learner’s permit necessary to purchase a drone. There are some basic rules in place from the FAA that ban hobbyists from flying over densely populated areas or close to airports, but aside from that, if you stay under 400 feet, you’re good to go.

When it comes to commercial drone flights, on the other hand, the FAA has made them completely illegal in the US. It’s taken years to develop new rules for companies, during which time other countries have forged ahead. And now it’s saying it will miss the deadline set by Congress to get commercial drones flying over American skies in 2015.

This is completely backward. It didn’t really hit me until my own crash, but the FAA is actually focusing its regulation on the wrong group. Companies typically need to carry liability insurance on the machinery they operate. A bad crash would be terrible for a brand, something that will make them more conservative about flights. The people with the least to lose are the casual hobbyist like me.

We think that the writer has a valid point about insurance concerns driving the commercial drone sector. But his call for the nanny state to stop him from acting foolishly is, well, silly. First, his argument assumes that the woman on the bicycle would have been left without a remedy had his careless behavior injured her or her child.

His in-laws probably have homeowner’s insurance. It might have adversely impacted his marriage, but any decent plaintiffs’ lawyer would have immediately looked into that.

And perhaps the writer has his own umbrella policy. He doesn’t say.

But the larger question is, at what point do we call on government to restrict the liberty of others, simply because some people act irresponsibly? We license car drivers, and have laws against reckless driving and drunk driving, but that doesn’t stop cars from being deadly missiles (much more dangerous than a 5-pound drone) in the hands of the wrong person. Requiring licenses for model aircraft operators seems grossly disproportionate to the risk involved.

If we are to remain a free and open society, on some level we have to still count on the virtue of individual citizens as the primary keeper of civic peace. Translated into contemporary parlance:

Don’t be an idiot, and we’ll all get along, just fine.

Drone Tech News of the Day

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Every day, we see more and more stories on developments in drone tech. Here are some stories that have been making the rounds, today.

Somebody went out and created a biodegradable drone:

The bulk of the prototype is made of a root-like fungal material called mycelium. It was cultivated in a custom drone shape by Ecovative Design, a company in Green Island, New York, that grows the stuff as a lightweight sustainable alternative for applications like wine packaging and surfboard cores.

The fungal body has a protective covering of sticky cellulose “leather” sheets grown by bacteria in the lab. Coating the sheets are proteins cloned from the saliva of paper wasps – usually used to waterproof their nests. Circuits were printed in silver nanoparticle ink, in an effort to make the device as biodegradable as possible.

So far, so good. But then there’s this:

The next part the team hope to make safe to degrade are the drone’s sensors, and they have already started studying how to build them using E. coli bacteria.

Gross.

DJI has launched a kick-ass new drone that includes a 4k camera. We just like the way this looks.

Back in Hollywood, people are starting to understand the potential benefits from the FAA’s approval of seven 333 exemption applications:

The day rate for a helicopter can range from $20,000 to $40,000 with crew. Operating a drone with crew can cut costs down to a rate that ranges between $9,000 to $15,000, according to Carmean. Elements that affect drone day rates pends the camera, aircraft, crew and location.

“The possibility of making shots that you couldn’t do before is extremely exciting. A director and a director of photography can say I want this shot in a movie and we can get it without a helicopter,” said Poster.

“The insurance; it’s a lot cheaper to insure a 25-pound drone than it is to insure a three-ton helicopter,” Chris Schuster, CEO and lead drone pilot at Vortex Aerial told TheWrap.

The demo video at the link is pretty cool.

Amazon Prime Air to Begin Testing in UK

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Prime in the air

That “whoosh” sound you hear might be the sound of jobs and investment going overseas:

Amazon is now expanding its R&D operations in Cambridge – two years after buying Cambridge-based startup Evi Technologies – to take advantage of the talent pool of academics and researchers in the area. The lab will focus on Prime Air, Amazon’s name for its drones project, the blog TechCrunch reported.

Amazon has advertised a number of aviation-related UK jobs in recent weeks, such as a flight operations engineer for Amazon Prime Air: “Flight test experience, manned or unmanned, is preferred,” the advertisement stated. Other roles include a senior research scientist position and a site leader job.

It’s probably correct that Amazon Prime Air has been preparing to conduct testing in the UK for some time, and perhaps this project would have commenced regardless of regulatory progress, or the lack thereof, in the U.S. But one can’t help thinking that FAA foot-dragging is already costing us, dearly.

Music Video Would Be Illegal to Film in the U.S.!

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Pop band OK GO is well-known for its innovative music videos, in which the band captures amazing in-camera effects and choreography in a single take. Their most recent video, for their song, “I Won’t Let You Down,” is no exception. This Busby Berkeley-style production will put a smile on your face:

How did they manage to do that? Well, part of the answer is that they used a drone.

It is perhaps worth noting that the video was filmed in Japan, where they seem to have taken a more pragmatic approach to drone photography than our own government. If this had been filmed in the U.S., OK GO might have been hit with a hefty fine, and we might have been deprived of the pleasure of watching this delightful production.