Tag Archives: drones

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

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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.

Drone Registration: A Question of Policy vs. Process

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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.

But, as Mr. Wynne said, “We have to have rules.” And first among those rules must be the rule of law.  Congress expressly prohibited the FAA from regulating model aircraft.  The FAA’s drone registration rule violated that unambiguous prohibition.

John Taylor was just the boy who pointed out the emperor’s lack of clothing.

Is Gun Drone Teen’s Challenge to FAA Subpoena Legally Sound?

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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.

The story is also covered here by Ars Technica.

Who Is Being Fined By the FAA?

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Jason Koebler of Motherboard made good use of FOIA and put together some useful information in a series of articles that are worth reading in detail:

Here, he reports on a list of every drone pilot that has ever been fined by the FAA:

The documents the FAA sent me show that the fine for flying a drone recklessly vary wildly: Some hobbyists have settled with the FAA for as little as $400, while others, such as the man who crashed his drone on the White House lawn, have paid as much as $5,500.

More commonly, the FAA fines people between $1,100 and $2,200 and, if it receives pushback, offers to settle for much less. Commercial operators have been fined as much as $1.9 million.

Among the interesting facts he reports is that the vast majority of fines are coming from the FAA’s Eastern Regional office.  What is it about the East Coast that makes it special? Tall buildings? More media attention?

I don’t want to detract from the excellent work, here, so go and read the whole thing.

Another article reports on the only licensed manned aircraft pilot in America who has had his license suspended (not revoked – the headline editor apparently doesn’t know the difference) for flying a drone.  Incredible.

The third article notes that the FAA has yet to fine anyone for flying commercially.  This may seem surprising, but it’s really not.  Koebler asked a former FAA counsel:

Loretta Alkalay, who was in charge of the FAA’s legal operations for the eastern region for more than 20 years, told me that the documents I showed her suggest the FAA doesn’t think it has legal standing to win a case that doesn’t involve reckless flight.

“I think it’s pretty obvious the FAA doesn’t think it can win a case on this whole commercial issue, which is why they haven’t really pushed it,” Alkalay told me.

That is probably why the FAA seems to treat FAR 91.13 as a catch-all for seeking fines against drone operators, but only sends cease and desist and educational letters to persons who are operating commercially without a Section 333.

Welcome to Unmanned Systems 2015

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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.

 

Is the FAA On a Collision Course With the First Amendment?

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I’ve been pretty busy, this week, and have just gotten caught up with this story about a letter from the FAA to Tampa Bay-area drone hobbyist Jayson Hanes. The precise meaning and intent of the letter is rather more vague than the writer suggests. As Hanes himself correctly pointed out in an interview, the FAA has not demanded that Hanes cease and desist from flying, or from posting his videos on YouTube, and has not threatened any enforcement action against him.

Nevertheless, this, and another recent story of a drone hobbyist in Maine who was told by the FAA that he would have to take down his website, raise a troubling concern that the FAA may be on a collision course with the First Amendment. Matters of free speech are not within the agency’s normal purview, which might explain the naïveté of an agent seeking to challenge one’s right to post videos on the internet.  Hanes commented that the FAA “is trying to flex its muscles” in an area that it doesn’t understand.

We understand that the FAA might be having difficulty enforcing its commercial drone ban.  The agency is not equipped to handle traditional law enforcement duties.  There are no police cars with flashing lights and the letters, “F-A-A,” emblazoned on their doors.  Everyone knows that non-compliance is rampant, and that the odds of getting caught and punished are low.

But such difficulties often prove to be the undoing of police agencies across the country.  The law books are full of cases where, out of sheer frustration, law enforcement officials overreached their constitutional boundaries and violated the rights of private citizens.  Avoiding such scenarios requires training and vigilance by those charged with enforcing the law.

As Peter Sachs commented to Motherboard, “It would behoove the FAA Office of Chief Counsel to make it abundantly clear to all aviation safety inspectors that the First Amendment is alive and well.”

Of course, the agency would more easily avoid getting itself into these kinds of embarrassing public relations imbroglios if it adhered to its own definition of what constitutes a “commercial” operation – i.e., activity with a business nexus.  It simply defies logic to say that posting videos on YouTube has any sort of nexus with business activity.

Comments to the NPRM: A Roadmap to the FAA’s Thinking

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Much has been written about the FAA’s NPRM for sUAS over the last week and a half. I think it’s safe to say that, while many were pleasantly surprised by the liberality of the proposed rules, most comments from the industry have been critical, particularly of the requirement for Visual Line of Sight (VLOS) and the prohibition on night operations, as well as the requirement for an aeronautical knowledge test and sUAS pilot certification.  The comments posted to date at regulations.gov have ranged from the thoughtful to the unhinged.

But before submitting comments, it is useful to understand what the FAA is thinking, and how it views the path going forward. Otherwise, even the most well-intentioned comments are likely to drift off-point. The FAA has made this task simple enough by laying out its reasoning in the first 160 pages or so of the NPRM.

The entire framework of the proposed rule can only be truly understood by taking into account what the FAA sees as two primary concerns that, in its view, are unique to UAS: (1) the ability of the operator to see and avoid other aircraft; and (2) Loss of Positive Control (i.e., a loss of communication between the vehicle and the control station).

See and Avoid:

The FAA emphasizes that the first job of an airman in avoiding collisions with other aircraft is to adhere to the “see and avoid” rule of flying. The FAA believes that pilots of manned aircraft have an inherent advantage in exercising see and avoid because they are able to use their peripheral vision from the cockpit. The agency is concerned, on the other hand, that the vision of an operator of a UAS who relies on FPV or other camera devices will be too restricted to be able to effectively see and avoid other aircraft.

The agency has considered requiring on-board see and avoid detectors, as have become standard on manned aircraft. However, it believes that, at least for now, the technology is not advanced enough, and is too heavy, for use onboard small UAS. The agency nevertheless remains open to suggestions.

One can of course raise countervailing considerations, such as the fact that a sUAS at 500 feet will be extremely difficult to see with the naked eye. Nevertheless, it would be difficult to overstate the amount of importance that the FAA attaches to this subject. Comments on the VLOS rule should respectfully take the agency’s concerns into consideration.

Positive Loss of Control:

Crash

Another point of emphasis, one that also relates to the proposed VLOS rule, is that problem of Positive Loss of Control. The problem is well-known, as evidenced by a flurry of reports of fly-away incidents, including the White House episode, last month.

The FAA believes that the risk of PLoC is significantly mitigated by keeping the operator within VLOS. Again, the agency is open to ideas on less restrictive ways to address this, but its concerns should be respectfully considered when making comments to the NPRM.

The Elephant in the Room:

talk-about-the-white-elephant-in-the-roomAs we noted last week, the FAA realizes that it has a compliance problem. But the FAA is not a police force, and it currently has no ability to quantify the degree of non-compliance. It also knows that imposing regulations that are unduly burdensome will only foster more non-compliance.

Its goal, therefore, is to enact regulations that encourage compliance while balancing its safety concerns.  Again, keep this in mind when submitting comments.

About Those § 333 Exemptions:

UltralightUntil a final rule is in place, commercial operators who don’t want to risk problems with the FAA will still need to apply for and obtain a Section 333 exemption. One of the questions on people’s minds has been, why does the FAA impose such mind-bogglingly stringent requirements, such as requiring a private pilot’s certificate, when granting these exemptions?

The FAA claims – and here is where I think that the agency is being disingenuous – that it has no statutory flexibility under Section 333 to waive:

  • Requirements for Airman Certification;
  • Security Vetting;
  • Aircraft Marking;
  • Registration Requirements.

That seems like a very odd assertion to make, given the fact that, for example, there is no airman certification requirement for operators of single-seat ultralights, which are much heavier than a typical sUAS and are powered by gasoline engines. The FAA does not claim any particular statutory authority for its regulations governing ultralights, other than a general series of statutes giving the FAA discretion to manage safety in the NAS.

Moreover, federal agencies – especially under this administration – have rarely been shy about claiming the maximum regulatory authority under the law. And the courts generally defer to an agency’s reasonable interpretations of the statutes that it is charged with administering.

It is therefore difficult to understand why the FAA claims such a lack of regulatory flexibility under Section 333. We are open to suggestions.

This NPRM Is Not the Last Word:

The above notwithstanding, the FAA clearly sees this NPRM as a first step on a long path to full UAS integration. It notes that the object should be to remain as open as possible to innovation, and it realizes that the pace of change in the UAS industry is rapid enough that it should avoid imposing some of the more stringent requirements, such as type certifications, that are common for manned aircraft.

It has specifically invited comments on a wide range of topics, such as whether UAS can be employed as air carriers, as well as available technologies and procedures that would allow safe VLOS and night operations, and whether a micro-UAS rule would make sense.

The comment period closes on April 24, so the time to get rolling on submissions is now.  If you would like to submit a comment with the assistance of counsel, please feel free to contact the law firm of Diaz, Reus & Targ, LLP and ask for Brant Hadaway, or email me at bhadaway@diazreus.com.

NPRM to be released this week?

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All Is Not Lost

We’ve heard from a credible (non-government) source that the FAA’s Notice of Proposed Rule Making (NPRM) for small drones (sUAS) should be released this Friday, February 13th (yes, Friday the 13th).  Unfortunately, I will be in the air on my way to a long weekend of skiing in Colorado, so (assuming the NPRM is released this week) I probably won’t get around to publishing my initial comments until sometime next week.

Note that the NPRM will be just one step in the process.  There will be a comment period of several months before any rules can have the force of law.  Then there may be challenges in the courts, which could take years to resolve.  And, of course, Congress could step in at any point along the way to pass legislation that might effectively repeal FAA regulations, in whole or in part, and replace them with a different or modified framework.  We still don’t really know how all of this is going to play out.

Until some enforceable rules are in place, the only option for commercial operators to comply with FAA requirements will continue to be to apply for exemptions under Section 333.

Hollywood Welcomes the Drones

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Nice report from CNN on Hollywood’s official foray into drone photography:

A small UAV offers amazing advantages for filmmakers – acting both as a crane and as an aerial photography platform.  This will save huge dollars in production costs and logistics.

Unfortunately, the FAA’s exemption system to date sets high barriers to entry that, in our view, are largely unnecessary.

South Africa Moves Forward on Drone Regulations

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Drone operators in South Africa have been cooling their heels, waiting for regulations allowing commercial drone operations from the South Africa Civil Aviation Authority (SACAA).  Based on this report, it looks like their wait will soon be over.  In what would constitute a lightning-fast rules process in the U.S., South Africa went from proposed rules, issued in December, to the close of comments just over two weeks ago.  The regulations are supposed to be finalized by the end of January, and will hopefully become law by April-May of this year.

The draft regulations would require aircraft to be licensed and registered and pilots/operators to undergo training to qualify them to fly the aircraft. Someone would only be able to fly a remotely piloted aircraft (RPA) if they have an RPA Pilot License, an RPA Operator Certificate, a certificate of RPA registration and an RPA Letter of Approval.
Importantly, RPAs will be classified according to their mass, kinetic energy and type of operation (line of sight, beyond line of sight etc.), with ten classes ranging from Class 1A to Class 5 and with masses ranging from less than 1.5 kg to greater than 150 kg.

The draft regulations apply to class 1 and 2 RPAs (up to 120 kg). Private operations of RPAs will be conducted only in restricted visual line of sight with a Class 1A or 1B RPA (up to 7 kg). However, operating a UAV as a hobbyist falls under different regulations.

The proposed categories for pilots is interesting:

For anyone in South Africa with a UAV, there are three options to fly legally: one can apply for a license if pursuing commercial work (once the regulations are finalised); one can become a member of the South African Model Aircraft Association (SAMAA) if flying as a hobbyist; or one can fly as a ‘park flyer’.

Great work for SAMAA.  We believe that the following applies to those seeking to do commercial work:

Someone would only be able to pilot an RPA once in possession of a Remote Pilot License (RPL) in one of three categories: RPL (A) – Aeroplane Remote Pilot License; RPL (H) – Helicopter Remote Pilot License; and RPL (MR) – Multirotor Remote Pilot License. Several ratings are available including visual line of sight operations (VLOS), extended visual line of sight operations (E-VLOS) and beyond visual line of sight operations (B-VLOS).

The License would test things like air law, meteorology, navigation, aerodynamics, propulsion, flight control, batteries etc. Flight training can be a combination of simulator and real aircraft training and would cover things like aircraft inspection, systems checks, flight control/manoeuvres, takeoff, landing etc.

In other words, the SACAA isn’t taking a one-size-fits-all approach to licensing and, unlike the FAA, apparently won’t require pilots to be licensed to fly manned aircraft.

The flight rules get a little more complicated:

For commercial, corporate and non-profit flight operations, an operator would be required to have an RPA Operator Certificate (ROC – valid for 12 months) or air services license, which can only be granted if the operator has a registered aircraft, an operations manual and an RLA. ROC holders would have background and criminal record checks conducted and would have to have third party insurance.

For private use, RPAs would only be flown in restricted visual line of sight (within 500 metres of the pilot) and over property the pilot owns or has permission to operate over.

With regard to operating an RPA, under the draft regulations an aircraft would only be operated in controlled airspace by a holder of an ROC or if the RPA is flown in visual meteorological conditions in an air traffic zone (ATZ) and controlled traffic region (CTR) below 400 feet. RPAs intended for operations within an ATZ or CTR would have to be fitted with a mode C or S transponder, altimeter, strobe light/s and navigation lights.

Did we say that the operations rules get a little complicated?  Scrolling through the proposed regulations, one finds nuggets like this:

First aid kits

101.05.24 (1) No owner or operator of an RPA shall operate the aircraft unless a first aid kit consisting of the medical supplies … for manned aircraft is available within the remote pilot station and within 300 m of the takeoff and landing points. . . .

(2) The owner or operator shall carry out periodical inspections of the first aid kit to ensure that, as far as practicable, the contents thereof are in a condition necessary for their intended use.

(3) The contents of the first aid kit shall be replenished at regular intervals, in accordance with instructions contained on their labels, or as circumstances require.

(4) The first aid kit shall be readily accessible to all crew members involved in the operation.

Hand-held fire extinguishers

101.05.25 No owner or operator of an RPA shall operate the RPA unless –

(a) a hand-held fire extinguisher is available in the remote pilot station and within 300 m of the takeoff and landing points;

(b) a hand-held fire extinguisher suitable for use with electronic equipment and any power generating equipment in use is available in the remote pilot station; and

(c) a hand-held fire extinguisher suitable for use on the RPA is available within 300 m of the takeoff and landing points.

Good Lord.

As one might imagine, South African officials are concerned about a lack of personnel to implement these regulations, once they become law.  Such a dilemma is the natural result of a regulatory regime that, while sensible on some levels, is still going to be grossly inefficient and difficult to administer.

We give this proposed set of drone regulations a C+.

The complete draft regulations can be found here.