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.
Everyone at AUVSI’s Unmanned Systems 15 expo waited on needles and pins for the FAA’s mysterious announcement, scheduled today for 11 am, EDT. Your humble correspondent was able to crowd into the doorway of the press room and grab a few snippets.
The big takeaway is somewhat anticlimactic: The FAA announced what it calls its “UAS Pathfinder Program” – a public/private partnership between leading companies in three business sectors – CNN, Precision Hawk, and BNSF Railway. The latter companies will be permitted to operate beyond visual line of sight, while CNN will be permitted to operate in densely populated urban areas within visual line of sight.
The fact that the FAA seems to be favoring three selected businesses may seem disappointing to some; however, there is reason for hope.
Recall that the NPRM specifically left the door open to developing standards for BVLOS operations. The FAA sees this new initiative as an opportunity to gather data on the viability of these operations being conducted by sUAS operators. I translate this to mean that the FAA is seriously considering an amendment to the final rule that will allow for beyond visual line of sight and for operations in densely populated urban areas.
But the FAA is nothing if not a cautious body, as we have all learned.
UPDATE: Brendan Schulman remarked to me that the FAA is likely to take five years to gather data from this program, so he is less optimistic about seeing a BVLOS component to the pending sUAS rule. At least, he doesn’t see it happening by next year. That’s a fair point.
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.
The FAA is touting its “summary grant” process that allowed to issue 30, simultaneous Section 333 Exemptions, last week. In other words, you are eligible for a summary grant if your petition looks sufficiently similar to a previously granted petition:
Although the FAA still reviews each Section 333 petition individually, the agency can issue a summary grant when it finds it has already granted a previous exemption similar to the new request. Summary grants are far more efficient because they don’t need to repeat the analysis performed for the original exemption on which they are based. Summary grants are a tool the FAA can use in all exemption areas, not just UAS.
The FAA’s experience in reviewing the Section 333 petitions shows they generally fall into two categories: film/television production and aerial data collection. Most exemptions in these categories will likely be handled through the summary grant process. For unique requests, the agency will still publish the petition in the Federal Register for public comment and will conduct a detailed analysis.
In other news:
The agency now allows operations under these exemptions by people who hold a recreational or sport pilot certificate. Previously, Section 333 operators were required to have at least a private pilot certificate. The newly added certificates are easier to obtain, and therefore less costly, than a private pilot certificate.
A third class medical certificate is no longer required. Now, a Section 333 operator only needs a valid driver’s license to satisfy the medical requirement. This change is consistent with the agency’s approach for sport pilot certificate holders, who may fly light sport aircraft with a driver’s license and no FAA medical certificate.
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.
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:
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:
As 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:
Until 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.
Like many, we were pleasantly surprised by liberality of the FAA’s NPRM for sUAS. Those who have been watching the FAA’s conduct, especially with regard to its often-tedious requirements for Section 333 exemptions, expected much more restrictive proposed rules that would have imposed impossibly high barriers to entry to all but the most well-financed operators.
Perhaps this is simply a matter of the FAA recognizing reality. Pages 9-10 of the DOT’s released-then-un-released Regulatory Evaluation reveal a telling point:
While commercial small UAS operations are being operated without FAA regulatory approval, the FAA has no method to quantify their historical usage. However, as civil applications of UAS develop, a demand for legal and safe access to the NAS for commercial and other non-recreational purposes has emerged. This proposed rule announces our plan to work with the emerging UAS industry to build a safe environment; eventually leading to the inclusion of small UAS into the NAS for commercial and other non-recreational purposes as well as satisfying the congressional direction from P.L. 112-95.
In other words, the agency seems to be saying, we have no idea how many non-compliant operators are out there, but it’s probably a significant number. Therefore, we think it better to have liberal rules that will bring more operators into the fold of compliance.
That seems to us like a smart move. The FAA has no police force patrolling the cities and countryside, and its program to enlist local law enforcement appears to have fallen flat. In any event, no federal agency can Constitutionally direct the activities of local law enforcement.
Indeed, while it is not our role to psychoanalyze a government agency, we see this NPRM as a case of bargaining – threatened with a complete loss of control over all but the most well-financed commercial sUAS operators, the FAA is promising to not be too onerous in exchange for a little more control than is actually necessary to achieve the purpose of safe integration.
It is nevertheless important for industry stakeholders not to be disarmed by this approach, but to carefully evaluate the NPRM on its merits and to engage the rulemaking process by filing comments. For example, do you believe that the proposed rules strike the right balance for pilot certification? Do you believe that the visual-line-of-sight requirement is too onerous? Do you believe that there could be more efficient ways of protecting the airspace around airports that minimize barriers to entry for commercial sUAS operators?
We will air out our own thoughts on these questions in subsequent posts. But in the meantime, make no mistake: Interested parties such as the Airline Pilots Association can be expected to submit comments urging much more restrictive requirements for pilot certification, air-worthiness certification, and operational parameters. Your comments will be important to making sure that the final rules are as reasonable and entrepreneur-friendly as possible.
(As of this writing, the NPRM has not yet been published in the Federal Register, so the 60-day deadline for comments has not yet been triggered. But one should assume that the deadline will be sometime this Spring.)
Should you wish to engage counsel to assist you with the comment process, feel free to contact the law firm of Diaz, Reus & Targ, LLP at 305-375-9220 and ask for Brant Hadaway. Or write me an email at bhadaway@diazreus.com. If I can’t assist you, I’ll find you someone who can.
“Officially [the FAA’s] stance is, You can’t do that. But they say you can’t drive 70 miles per hour on a 50-mile-per-hour freeway,” said Peter Sosnowski, preconstruction director for Webcor Builders, a commercial construction company and San Francisco unit of Japanese firm Obayashi Corp. Webcor has used drones to map two big U.S. construction sites, he said. “Until someone gets caught and penalized, drone businesses will continue to do business as is.”
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.
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.
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.
