We’ve talked in the past about police and government use of UAS drones, but what about automated systems of a more terrestrial kind? This article talks about a three-month trial by the Massachusetts State Police of Boston Dynamics’ dog-like robot, Spot.
The article presents an interesting, if somewhat one-sided, discussion of potential civil liberties concerns raised by the use of Spot by police. Dog robots have great potential for “sniffing” out situations that are too dangerous for humans, not to mention dogs of the warm and friendly kind.
This will continue to be another emerging area of drone law.
The short answer is, no. The Singerdecision 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.
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.
We have previously expressed our skepticism of the FAA’s authority to require non-commercial drone operators to register their drones. While the FAA’s registration requirement may have been well-intended, good intentions don’t overcome a clear statutory prohibition like FMRA Section 336, which expressly provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft…”
In a stunning David versus Goliath case, John A. Taylor, a model aircraft enthusiast and insurance lawyer, beat the Federal Aviation Administration and Department of Justice in a case challenging the legality of a December 2015 FAA rule requiring model aircraft to register like manned aircraft. The Court of Appeals for the District of Columbia ruled that the FAA’s registration rule, as it applies to model aircraft, “directly violates [a] clear statutory prohibition.”
The court specifically noted that Section 336 “codified the FAA’s long-standing hands-off approach to the regulation of model aircraft.”
In short, the 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.
The FAA raised two arguments. First, the FAA argued that the registration requirement applied to all aircraft and pre-dated the FMRA. In other words, it was pre-existing requirement. This was belied by the FAA’s own history of making an exception for model aircraft. The rule was a new regulation, and therefore prohibited by Section 336.
Second, the FAA contended that the rule was consistent with the FMRA’s purpose to “improve aviation safety.” But that would be inconsistent with the text of the statute. Congress, the court noted, is always free to amend the statute.
In a normal world, results like this wouldn’t be stunning. Challenging the government on a rule that clearly exceeds its statutory authority should be more like shooting fish in a barrel. But this is the world we have as a result of a judicial doctrine known as Chevron deference – i.e., that a court will generally defer to an agency’s interpretations of statutes, as long as there is a reasonable basis for that interpretation. This has led to unfortunate consequences, and we may be witnessing the beginning of the end of the Chevron doctrine.
But let’s not take anything away from John A. Taylor’s achievement. This was a great win, for himself, for the drone community, and for individual liberty.
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.
We will be at AUVSI’s Unmanned Systems 2015 conference in Atlanta, May 4-7. Look for our (very small) booth at the trade show and stop by to say ‘Hello’!
Writing at the Washington Post’s Innovations blog, Matt McFarland reviews the approach to small, commercial drone licensing in Great Britain, where the “Civil Aviation Authority — an equivalent to the FAA — has approved three companies to provide training on unmanned aerial vehicles (UAVs) that weigh less than 45 pounds.” The training and licensing regimen is notable in that, unlike the FAA’s requirements in a number of Section 333 exemptions and in its pending rules, Britain does not require operators to hold a pilot’s license for manned aircraft.
One of the approved training companies, Sky-Futures,
sends trainees a ground school manual to gain an understanding of how airspace operates and how to read an air map. Newbies are given a month at home with the manual, but experienced manned aircraft pilots are required to spend far less time with it.
Sky-Futures then puts trainees through two days of ground school and three weeks of actual flight training in Spain. Aside from much of the summer, the British group heads to Spain for the drier conditions and clear skies. Lessons take place at an approved test site. Students learn everything from how to navigate around objects to how to operate a camera on a drone safely.
And who wouldn’t enjoy three weeks in Spain, especially when looking to escape the (mostly) crappy weather in the UK? That might, of course, assume that you can spare the time. Good luck monitoring your business if you’re a real estate broker.
Then there’s the other catch: the cost is roughly $12,000. The director of training at Sky-Futures, himself a Boeing 747 pilot, calls this a “gold-plated standard.” Gold-plated or not, it might put the training out of reach for aspiring freelancers.
The downstream requirements are much less onerous. Once a pilot is certified, he needs to submit an operations manual and proof of insurance. But otherwise, the regulations are fairly minimal, and reasonably risk-based (operators of drones over 15 lbs have to notify air traffic control before flying).
We see a danger of regulatory capture, here. Training schools like this will of course have a vested interest in lobbying for greater – but not too much – complexity.
Still, we think that this is better than nothing, and it seems far more reasonable than what is rumored to be in store from the FAA. But three weeks of training, at a cost exceeding $10k, still seems like something that is going to create unreasonable barriers to entry for operators of small drones.
The Washington Post’s Editorial page is one of the last remaining mainstream editorial pages that still seems to have a few adults in charge. On Sunday, it published a remarkably simple and cogent pronouncement on the state of drone regulations. Noting the dissonance between regulations over commercial vs. recreational operators, as well as the reports of drones entering sensitive airspace, the editors have a few suggestions:
The FAA should finally release rules governing commercial drone flights shorn of the absurd requirement that operators must have hours of cockpit time in real planes. Commercial drone pilots should have adequate practice on the equipment they are actually using, and they should be up to speed on FAA rules on unmanned aircraft, air traffic control practices and how to deal with bad weather. They don’t need to know how to land a Cessna. If the FAA doesn’t make that clear, Congress should.
Meanwhile, the FAA should also find better ways to keep drones out of sensitive airspace.
The editors point to something that we have frequently suggested, that manufacturers of recreational drones be required to include built-in altitude and geo-fencing restrictions. Indeed, the editors note that some manufacturers are already doing so. If the FAA declines to take this common sense approach, then Congress might have to step up and mandate that it do so.
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.
