I often find myself in debates with smart people – people I like – who don’t understand the distinction between the merits of a particular government policy and the question of whether the government has the power to enact that policy. To pick a recent example, you may think that preventing hunters from killing bear cubs in Alaska is a great idea. Whether the government – especially, the Executive Branch, acting without statutory authority – has the power to enact such a ban is a question that many would regard as beside the point. Those who question the Executive’s power to protect bear cubs obviously hate bear cubs.
Based on the tenor of articles like this one in today’s Washington Post, the FAA’s drone registration rule is the Alaskan bear cub of the moment. Stakeholders are livid at John Taylor for having the temerity to question authority. A spokesman for AUVSI (an organization in which I have been a member), seems rather beside himself:
Why do we have restrictions? Because we don’t want a drone ingested into an aircraft engine,” said Brian Wynne, a licensed pilot and president of the Association for Unmanned Vehicle Systems International, a leading industry group based in Arlington, Va.
Wynne said putting registration numbers on all aircraft should be seen as a basic safety requirement. But that was part of what was overturned by Taylor’s challenge.
“We have to have rules,” Wynne said.
I feel Mr. Wynne’s pain. Really, I do. Stakeholders who have invested so much in their drone businesses no doubt feel put upon by a regulatory regime that imposes high barriers to entry on them, while imposing very few restrictions on those who engage in the very same activity for personal pleasure. A drone registration requirement for all seems only fair.
Jason Koebler has another useful and informative story on a current development in the area of drone law. This one concerns the “gun drone” teenager, Austin Haughwout, and he and his family’s challenge to an FAA subpoena demanding, among other things, “photographs and video, receipts for the flamethrower, YouTube audience, advertising, and monetization information. . . .”
The FAA is petitioning a federal judge to enforce its subpoena, which included a subpoena for depositions in New Haven. The Haughwout’s opening brief in response (which cites this blog in a footnote) raises two arguments: (1) the FAA exceeded its regulatory authority by defining drones as “aircraft”; and, or alternatively, (2) the subpoena is unconstitutional as applied under the Commerce Clause of Article I.
For reasons that we discussed in this post and this post in the wake of the decision of the NTSB administrative appeals court in Pirker, this looks like a steep hill to climb. Taking the second argument first, the Supreme Court practically slammed the door shut on limits to the Commerce Clause in Gonzalez v. Raich. As we said here, the real question these days is, where does the Commerce Clause not extend?
Or, perhaps it would be more appropriate to ask, will the courts ever meaningfully limit the reach of the Commerce Clause? The Court did draw a line in National Federation of Independent Business v. Sebelius, but it was essentially rendered meaningless by the Court’s more memorable, alternative ruling that the Obamacare mandate could be construed as a tax.
Thus, unfortunately, the trend has been against the Haughwouts and, in any event, a court will decline to rule on a Constitutional question that can be resolved by statutory interpretation. It would therefore take a judge of extraordinary courage to tell the FAA that is has overstepped its Constitutional bounds.
This brings us to the first question raised in the Haughwouts’ brief: Has the FAA overstepped its statutory authority by defining drones as “aircraft”? The argument centers on the FAA’s interpretation of its “organic statute” at 49 U.S.C. §40101, and whether the FAA has overreached by defining drones as “aircraft”. It also relies on a critique of the NTSB decision in Pirker II as having been wrongly decided.
This isn’t a bad question to raise. Since the Pirker case settled, the question never went before an Article III court, and therefore remains unresolved. Given that the question is to be argued at a hearing on July 6, I will not comment on the merits of this argument.
Surprisingly, we can find no discussion of FMRA Section 336, which bars the FAA from promulgating any regulation regarding model aircraft, the only exception being that nothing in Section 336 “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.”
We’re sure that the Haughwouts’ attorneys had good reasons for omitting any discussion of Section 336, but it’s certainly something that we would have considered raising. The statute clearly evidences an intent by Congress to limit the FAA’s enforcement authority to threats to the NAS. A battery-powered drone, being operated just above ground in a privately-owned forest, does not seem like a threat to the NAS, gun or no gun, flamethrower or no flamethrower.
Mr. Koebler correctly thinks that this might be the most important drone law case currently pending.
A knucklehead in Connecticut has caused quite the media firestorm over his video of a semi-automatic handgun being fired from a small drone. I have received some media inquiries about whether it is legal or not. The answer is that it depends.
Based on the video, it appears that this occurred on private property, away from any buildings or people. The FAA does not seem to have a regulation that would prohibit discharging a firearm from a drone under those circumstances.
The closest thing you will find is FAR § 91.13, which prohibits the reckless operation of an aircraft (the FAA relied on this section in the Rafael Pirker case), and § 91.15, which prohibits dropping objects from an aircraft. But both regulations apply only where the activity poses a danger to life or property. That does not appear to be the case, here.
The more likely resource for determining the legality of this particular drone would be state law governing the handling and discharge of firearms. These regulations vary by state, but in general one would look to whether a firearm was discharged in a reckless manner that posed a danger to others, or in a built-up area or an area zoned for housing. You can review Florida’s law, here.
Does this presage the weaponization of private drones? I doubt it. The video seems to vindicate something I wrote back in October:
[A] small drone is unlikely to be a useful weapons platform. As anyone who has fired a gun can attest, the kickback from discharging a firearm would be just as likely to send a small drone tumbling out of the sky as it would be for the drone to hit its intended target.
The video proves the point. The operator does not have any reasonable semblance of control over the weapon, and at one point he clearly seems to be downrange of the weapon. That’s a big no-no among gun owners.
Having said that, I could foresee someone developing an “FPV drone paint-ball” war game (patent pending). Where that would fit with FAA regulations and state firearms law might be a topic for another post.
Recently, I reported on remarks from a panel of experts on sUAS integration at the AUVSI expo in Atlanta. One of the more interesting comments came from the FAA’s director of sUAS integration, James Williams, who said that navigable airspace is wherever an aircraft can safely operate. And because Congress chose to define sUAS as “aircraft” in the FMRA, anywhere a small drone could fly safely is, therefore, navigable airspace.
The FAA uses this tautology to justify its claim of jurisdiction over all airspace, from the ground up, regardless of whether a discrete area is surrounded by trees or buildings that would make navigation impossible for a manned aircraft. But the weakness in this argument becomes apparent when taken to its logical conclusion, that the FAA may also claim jurisdiction over indoor airspace.
I have heard from a number of commercial operators who have been hired to conduct inspections inside of large warehouses, for example. We also know, based on public comments, that Amazon has been testing its PrimeAir drones in the U.S. in enclosed spaces. Obviously, these are spaces where drones can safely operate.
So, why hasn’t the FAA claimed jurisdiction over indoor airspace?
The obvious answer is that indoor operations do not threaten the national airspace system (“NAS”) (we discussed the scope of the NAS here and here). But that just begs the soundness of the FAA’s reasoning. The criteria should not be whether a drone can safely operate in a given area, but whether operating in a given area poses any kind of danger to the NAS.
We understand that the FAA has a difficult job to do. But that’s no excuse for engaging in administrative overreach.
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
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.
Anyone who has studied the law is likely to be familiar with the issue of federal-state preemption. The doctrine may be generally described as, where the Constitution grants a power to the federal government to regulate an activity, and Congress exercises that power, state laws that contradict or undermine federal law are preempted and therefore invalid.
No one seriously questions whether Congress has authority under the Constitution to regulate the National Airspace (NAS), and no one questions the authority of the FAA to carry out enforcement of Congress’ mandates to regulate the NAS. We discussed the scope of that power in this post, and the problem of drawing a bright line on the limits of the NAS. The full answer to the question remains unsettled, but the argument is over where to draw the margins, not over the power, itself.
Thus, even though Oklahoma might purport to grant its citizens immunity from prosecution when shooting down a drone (or a town passes a law encouraging its citizens to shoot down drones), the shooter could still be prosecuted under federal law, which would completely pre-empt any state law immunity. If you think we’re kidding, consider the discussion of Gonzales v. Raich in this post. The feds might decide not to enforce the law against a person, but that is a matter of prosecutorial discretion.
This is why state and local governments need to be very careful about incentives they put in place vis a vis drones. They could very well mislead their citizens into earning time in federal prison.
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:
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.
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.
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.
