The Raphael Pirker case has settled. Not terribly surprising, given the appellate ruling. Pirker had little incentive to continue defending the case. He agreed to a reduced fine of $1,100, with no admission of wrongdoing.
The FAA might be feeling like the more fortunate party in this transaction:
In a letter Pirker shared with me, a judge with the National Transportation Safety Board asked the agency why, essentially, it was putting a foreign national through the ringer for a relatively minor (and legally unclear) infraction. The FAA is allowed to take legal enforcement action against foreign nationals in three circumstances: The person has an FAA airman’s certificate; the person commits a violation as a passenger; or the person runs a “foreign repair station.” Otherwise, the FAA is supposed to refer the case to the person’s home country, in this case, Switzerland. The FAA didn’t do that.
Pirker “does not fall within the three circumstances that provide for taking of legal enforcement action … it is determined that this issue is best addressed, and appropriately resolved, prior to commencing a hearing,” the judge wrote.
[Pirker’s attorney Brendan] Schulman said that’s another reason why the FAA should be happy to put this behind them.
The allegedly offending video can be viewed, here:
Thus ends a very interesting regulatory dispute. It won’t be the last.
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.
to conduct aerial videography and cinematography to enhance academic community awareness for those individuals and companies unfamiliar with the geographical layout of the metro Tucson area and augment real estate listing videos.
From there, the document consists of 26 pages of mind-numbing bureaucrat-speak and absurdities that would have given Vaclav Havel a chuckle. For example, the petitioner asked for relief from the requirement of having a private or commercial pilot’s license. The FAA’s response:
Regarding the petitioner’s requested relief from 14 CFR 61.113(a) and (b), Private pilot privileges and limitations, the petitioner requested regulatory relief to operate his UAS without an FAA-certificated pilot. In support of his request, the petitioner states that “while helpful, a pilot license will not ensure remote control piloting skills.” However, the FAA does not possess the authority to exempt the petitioner from the statutory requirement to hold an airman certificate, as prescribed in 49 USC § 44711 [Ed. – prohibiting a person from serving “in any capacity as an airman . . . without an airman certificate authorizing the airman to serve in the capacity for which the certificate was issued….”].Although Section 333 provides limited statutory flexibility relative to 49 USC § 44704 for the purposes of airworthiness certification, it does not provide similar flexibility relative to other sections of Title 49.
So, apparently the FAA has discretion to disregard section 44711 if you’re a hobbyist, but not if you’re a commercial operator. Yes, we know about the hobbyist exception under FMRA, but this takes statutory construction to an absurd level. The FAA doesn’t stop there:
Unlike operations pursuant to public COAs, the FAA is also requiring a pilot certificate for UAS operations for two reasons, the first of which is to satisfy the statutory requirements as stated above. The second is because pilots holding an FAA issued private or commercial pilot certificate are subject to the security screening by the Department of Homeland Security that certificated airmen undergo. As previously determined by the Secretary of Transportation, the requirement to have an airman certificate ameliorates security concerns over civil UAS operations conducted in accordance with Section 333.
Um, why not simply require a background check? Not that we think it should be necessary, but we trust non-pilots with Global Entry cards. The background check requirements are at least as rigorous. The FAA then considers the objections of the Airline Pilots Association [We didn’t see that coming! – Ed.], but finds that a commercial pilot’s license should not be necessary. Various commenters have pointed to numerous other absurdities, and we do not have time to explore them all in detail. But most absurd of all is the amount of resources that has gone into drafting, submitting, and reviewing one petition from an individual who wishes to operate his Phantom 2 for commercial purposes. This is not only an absurd way to go about things; it is horribly wasteful and raises impossible barriers to entry for many thousands of potential entrepreneurs. There has got to be a better way.
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.
Some interesting themes emerged from this hearing. Everyone seemed to recognize that the U.S. is falling behind on R&D and investment due to the lack of a comprehensive regulatory framework.
Several of the committee members raised questions over whether the FAA should, like other developed countries, pursue a more risk-based approach to UAS regulations. The FAA’s Peggy Gilligan claimed that her agency is doing just that, at least when evaluating section 333 exemption applications. This was telling. Most of her remarks smacked of happy talk and filibustering.
Rep. Todd Rokita asked, if we are taking a risk-based approach, whether any actuarial studies have been conducted. The answer was yes, but only as to large, high-altitude UAS. There were too many unknowns to be able to evaluate risk profiles for smaller drones.
Another interesting theme was the general frustration with the fact that the much-heralded test sites are not getting much support from the FAA. Some spoke of opening up more test sites. Jesse Kallman of Airware suggested that developers be permitted to operate their own test sites. This made sense to us.
Capt. Lee Moak of the Airline Pilots Association began his testimony by putting a brand new DJI Phantom on the table. He compared the risk of collision with small drones to the risk of bird strikes. His testimony made it clear that the airline pilots are lobbying for a go-slow approach. In other words, the FAA might not be aggressive enough in trying to shut this madness down.
The overall impression was that Congress understands the problem and is losing patience with the FAA. We might see more legislative involvement if things don’t start picking up speed.
The four companies that received exemptions want to fly UAS to perform operations for aerial surveying, construction site monitoring and oil rig flare stack inspections.
“Unmanned aircraft offer a tremendous opportunity to spur innovation and economic activity by enabling many businesses to develop better products and services for their customers and the American public,” said Transportation Secretary Anthony Foxx. “We want to foster commercial uses of this exciting technology while taking a responsible approach to the safety of America’s airspace.”
The commercial entities that received exemptions today are Trimble Navigation Limited, VDOS Global, LLC, Clayco, Inc. and Woolpert, Inc. (two exemptions). The FAA earlier granted exemptions to seven film and video production companies.
We’re heartened by Secretary Foxx’s comments. But really, if the FAA continues this piecemeal approach – granting the occasional tranche of section 333 exemptions while patting itself on the back – the only “economic activity” we will see is more investment money diverted abroad.
The Wall Street Journal reports (behind the pay wall) that Amazon is losing patience with the FAA, and has threatened to move more of its operations abroad if it doesn’t receive permission to test-fly in the U.S., soon.
“Without the ability to test outdoors in the United States soon, we will have no choice but to divert even more of our [drone] research and development resources abroad,” Paul Misener, Amazon’s vice president of global public policy, said in a letter to the FAA Sunday reviewed by The Wall Street Journal.
Amazon petitioned the FAA in July to allow it to go forward with testing its drone delivery system, on privately owned land under highly controlled conditions. The FAA came back in October, asking Amazon why it didn’t seek an experimental aircraft certificate. Amazon’s sensibly responded that an experimental certificate wouldn’t give it the flexibility it needed.
Translation (we think): An experimental certificate would require Amazon to jump through too many hoops every time it makes design changes. And Amazon needs to have the option of making design changes on the fly.
But this is just mind-blowing:
The FAA also asked Amazon why its delivery drones are in the public interest[!] Mr. Misener responded that they would help deliver packages faster and make the overall transportation system safer and more efficient. “I fear the FAA may be questioning the fundamental benefits of keeping [unmanned-aircraft] technology innovation in the United States,” he wrote.
No kidding. The government might as well ask why the internet is in the public interest, or why roads and bridges are in the public interest.
This particular colloquy, we fear, suggests that the problem might be worse than we had ever imagined.
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.
In our post, last Wednesday, we discussed the meaning of the NTSB’s ruling in the Pirker case. Towards the end of the discussion, we noted Congress’ statutory construction provision, contained in the FMRA’s Special Rule for Model Aircraft:
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.
We take this as evidence of Congress’ intent to limit the FAA’s jurisdiction over model aircraft to operators who endanger the national airspace, as opposed to the NTSB’s finding of broader jurisdiction to prohibit threats to life or property under 14 C.F.R. § 91.13(a). But what constitutes a threat to the national airspace? If the FAA was to conclude that using a model aircraft to buzz pedestrians on a sidewalk constituted such a threat, would it be upheld in a court?
It may come as a surprise to some that Congress has no general police power. For example, there is no general federal law prohibiting murder, except for murder of a U.S. government official or employee. There are exceptions that don’t pertain to our discussion, here.
The majority of federal prosecutions, for crimes such as money laundering, kidnapping and drug dealing, must have an interstate component in order to fall within the feds’ jurisdiction. For these and most civil federal regulations, Congress relies on the Interstate Commerce Clause of Article I of the U.S. Constitution, which gives Congress authority to regulate interstate commerce. This includes the authority to regulate the national airspace, and to delegate the enactment and enforcement of regulations to the FAA.
How far does the Commerce Clause extend?
It has become difficult to say where it doesn’t extend. In our opinion, the Framers intended the Commerce Clause to be a power to promote or facilitate interstate commerce. The United States had suffered with a weak central government under the Articles of Confederation, leading states to impose discriminatory tariffs against each other’s goods and to engage in other activity, such as printing money, that we take for granted today as exclusively federal in nature. Something had to be done to prevent the states from killing each other. But it was still regarded as a limited power.
Indeed, before the Switch in Time that Saved Nine, the courts found it relatively easy to distinguish between “interstate” commerce, which Congress could regulate, and commerce that was wholly intrastate. But then came decisions like Wickard v. Filburn, in which a hapless farmer was cited for exceeding his wheat production quota. The fact that he grew the excess wheat exclusively for consumption on his own farm was of no moment, the Supreme Court concluded. Because Mr. Filburn’s excess wheat reduced the net amount of wheat that needed to be sold on the market, it had a sufficiently substantial, indirect effect on interstate commerce to bring Mr. Filburn’s conduct within the ambit of the Commerce Clause.
The logic of Wickard has been applied more recently in cases such as Gonzales v. Raich, in which the Supreme Court found that growing your own medical marijuana, in your own backyard for your own consumption, and in compliance with state law, had a sufficient relationship to interstate commerce that the DEA could enter your yard and tear up your plants (assuming a good day – on a bad day, you might get prosecuted under federal law). Yeah, we know. Crazy. Just ask Justice Thomas, who wrote a scathing dissent in that case.
It looked like the Court might draw a line in National Federation of Independent Business v. Sebelius, otherwise known as the Obamacare “individual mandate” case. Contrary to popular belief, a majority held that the individual mandate, as a mandate, was unconstitutional. Nothing in the Court’s decisions regarding the Commerce Clause, that majority concluded, justified requiring an individual citizen to actually participate in commercial activity based on the mere fact that the citizen still drew breath. But in a moment that was reminiscent of the Switch in Time, Chief Justice Roberts sided with the Court’s liberal majority in deciding that the mandate could be sustained as a tax. Go figure.
You can probably see where this is going. The question presented might one day be:
Does operating a model aircraft, away from controlled airspace, within a discrete area – like one’s backyard – and below the normal, safe operating altitude of a manned aircraft, implicate interstate commerce?
The intuitive answer would be, no. After all, it seems on its face to be a wholly intrastate activity. It is also, on its face, non-commercial in character. Small drones have very limited range, dictated by both visual line of sight rules and battery life. These practical limitations make it highly unlikely that a small, remote controlled drone is going to cross state lines.
But obviously, the answer isn’t that simple. For example, no one disputes the FAA’s authority over intrastate commercial air traffic, because without a federal system intrastate air travel simply would not work. In other words, every flight that enters the national airspace has a substantial, even if indirect, effect on interstate commerce.
Which brings us back to what we see as a critical question: Have we adequately defined the “national airspace”, given this new era of technology that is now upon us? Can we, for example, draw a bright line somewhere? Below 400 feet? Below the height of an average telephone pole?
Maybe. But then consider a counter-factual. If and when Amazon’s Prime Air service gets up and running, it might well operate exclusively in Class-G airspace, but few can doubt that a sales and distribution network like Amazon has a substantial effect on interstate commerce. And even if we’re just talking about the airspace, itself, the federal government surely has an interest in making sure that sUAS don’t interfere with manned aircraft traffic.
Fast-forward to Christmas Day, 2014. A 12-year old kid is playing with the brand-new Phantom that Santa left under his tree. As he gains confidence, he buzzes a jogger and a neighbor’s dog. He loops over and under power lines. He shoots up to 400 feet, then down, then up to 500 feet, and so on.
Does there come a point where the kid’s activity goes from being wholly intrastate, to having a substantial effect on interstate commerce?
Here, the FAA may have a trump card. Read Justice Scalia’s concurring opinion in Gonzales v. Raich, where he concludes that the Necessary and Proper Clause of Article I gives Congress the power to enact measures in support of its authority to regulate interstate commerce. In other words, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.'”
Granted, this reasoning was not adopted by the full Court, so its binding effect may be limited. But neither can Scalia’s opinion be easily dismissed. A court may well conclude that, however remote the impact the kid with his new Phantom has on interstate commerce, the ability to draw limits on his conduct is a necessary and proper exercise of federal authority to regulate the national airspace. Said differently: What good is the power to regulate the national airspace if you can’t regulate activity that has the potential to impact the national airspace?
That is, at least, one possible outcome.
We will have more to say about this as events unfold.
UPDATE: Just to be clear, the discussion above is about one possible theory regarding the scope of the federal government’s jurisdiction to regulate contrivances made for flight in the air. It is not a comment on the merits of any particular regulation or policy.
