That seems to be the gist of this story, which has taken the internet by storm, today:
Highly anticipated federal rules on commercial drones are expected to require operators to have a license and limit flights to daylight hours, below 400 feet and within sight of the person at the controls, according to people familiar with the rule-making process.
The drone industry has awaited commercial rules for about six years, hoping the rules would pave the way for widespread drone use in industries such as farming, filmmaking and construction. Current FAA policy allows recreational drone flights in the U.S. but essentially bars drones from commercial use.
…
In addition, pilot certifications likely to be proposed by the FAA would typically require dozens of hours flying manned aircraft, according to people familiar with the rule-making discussions. Drone proponents have resisted requiring traditional pilot training for drone operators.
There’s a lot to unpack, here. But the upshot is that, assuming the report is accurate, hidebound thinking has prevailed over common sense: Two operators, side by side, operating the same model, under the same conditions will be subject to different requirements, based on the mere fact that one is getting paid and the other is flying for pleasure.
Leaving that aside, requiring anyone to go to traditional flight school to become licensed to operate a small, remote-controlled model-type aircraft makes about as much sense as requiring someone to be trained in an M1 Abrams tank as a condition for being allowed to fire a pistol on a shooting range.
We will obviously have much more to say about this as the news unfolds.
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.
Yesterday’s ruling from the NTSB, overturning Judge Geraghty’s order in the Pirker case, caused quite the twitter storm, and practically crashed our Google news feed. So, a lot of virtual ink has already been spilled on this. But much of it has been either poorly written or flat-out wrong.
We stand by our initial take, which is that the scope of this ruling is ultimately quite narrow. We also think it stands on shaky ground, and could be vulnerable on review by an Article III court.* Here’s why.
First, the opinion was narrowly tailored to the question of whether a model aircraft falls within the FAA’s enforcement authority under 14 C.F.R. § 91.13(a), which provides that “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.” The key finding was that a model aircraft is an “aircraft” under 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1. Section 40102(a)(6), the NTSB concluded:
defines “aircraft” as “any contrivance invented, used, or designed to navigate, or fly in, the air.” Similarly, 14 C.F.R. § 1.1 defines “aircraft” for purposes of the FARs, including § 91.13, as “a device that is used or intended to be used for flight in the air.” The definitions are clear on their face. Even if we were to accept the law judge’s characterization of respondent’s aircraft, allegedly used at altitudes up to 1,500 feet AGL for commercial purposes, as a “model aircraft,” the definitions on their face do not exclude even a “model aircraft” from the meaning of “aircraft.” Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. An aircraft is “any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless.
That sounds like a broad conclusion. It is, and it isn’t. The NTSB points out that, at the time of the original Federal Aviation Act:
so-called “drones” were largely the currency of science fiction. Congress demonstrated prescience, however, in the early definition of “aircraft”; it expressly defined the term as any airborne contrivance “now known or hereafter invented, used, or designed for navigation of or flight in the air.”
… [The FAA] may choose to exclude certain types of aircraft in a practical sense, by refraining from bringing a charge under the FARs against a model aircraft operator; Advisory Circular 91-57 implies such a practice, and the processes outlined in 14 C.F.R. §§ 11.81 – 11.103 provide a more formal means of seeking exemption. However, for the case sub judice, the plain language of § 91.13(a), as well as the definitions quoted above, does not exclude certain categories of aircraft.
Turning to whether the FAA correctly applied Section 91.13(a) to Pirker’s model aircraft, the NTSB points to the doctrine of judicial deference to agency interpretations of the statutes they are charged with enforcing. Agency interpretations will generally be accorded deference if the agency can point to a reasonable basis in the underlying statute. The NTSB concludes that, since nothing in the history of the statute or the FAA’s enforcement actions indicate a clear intent to categorically exclude model aircraft from the definition of “aircraft,” the FAA’s interpretation should be upheld as reasonable.
But the NTSB also hints that the scope of this conclusion will be constrained by practical limits on the FAA’s prosecutorial discretion. Simply put, the FAA cannot prosecute every operator of a model aircraft who does something dangerous or foolish. The decision also does not grant the FAA license to enact a wholesale prohibition on the operation of model aircraft, or even require licensing for hobbyists.
In summary, if you are an amateur hobbyist who operates a model aircraft within traditional parameters – less than 400 feet, within line of sight (precise definitions are being sorted out in the courts), and you refrain from doing anything stupid, the chances of getting a citation from the FAA are exceedingly remote.
Pirker might be able to argue that the NTSB’s ruling is inconsistent with the scope of the FMRA’s Special Rule for Model Aircraft, which we discussed here. The Special Rule contains a statutory construction provision:
Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.
Although FMRA was enacted after Pirker’s “offending” flight, he could argue that this statutory provision shows that the FAA’s interpretation is directly at odds with Congressional intent, vis a vis model aircraft. A threat to individuals and their property, he might contend, is not a threat to the “safety of the national airspace system.” In other words, unless a model aircraft has somehow threatened the safety of the national airspace, as that has been traditionally defined, its unsafe operation should be a matter for local police authorities, not the FAA.
Such an argument would have sound Constitutional underpinnings. Congress derives its authority to regulate airspace from the Commerce Clause of Article I, which gives Congress the power to regulate interstate commerce. Granted, the courts have construed this power so broadly that it is by now practically meaningless as an enumerated limitation on the federal government. But it is generally recognized that the power extends to regulation of anything that has a material impact on interstate commerce.
What constitutes an effect on interstate commerce is typically a fact-sensitive question. Hypothetically, prosecuting a model aircraft operator who buzzes old ladies on a sidewalk is not something that even remotely affects interstate commerce, whereas an operator who flies his Phantom II into the air intake of a commercial jet does affect interstate commerce.
It will be interesting to see whether Mr. Pirker takes up these questions on appeal to an Article III court.
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* An Article III court is a court established by Congress under Article III of the U.S. Constitution. The NTSB court is an administrative court and is therefor part of the Executive Branch under Article II. Article III courts have jurisdiction to hear appeals from the decisions of administrative courts.
The NTSB has spoken. Short version: The NTSB concludes that the FAA has jurisdiction to regulate the safe operation of model aircraft, and has remanded the Pirker case for findings of fact on whether Pirker operated his RITEWING Zephyr drone in a reckless manner. The full decision is here.
The NTSB begins by defining the scope of its opinion:
At this stage of the proceeding … we decline to address issues beyond the threshold question that produced the decisional order on appeal: Is respondent’s unmanned aircraft system (UAS) an “aircraft” for purposes of § 91.13(a), which prohibits any “person” from “operat[ing] an aircraft in a careless or reckless manner so as to endanger the life or property of another”? We answer that question in the affirmative.
The law judge’s ruling in Pirker’s favor turned on the conclusion that the FAA had never asserted jurisdiction over model aircraft, and that the FAA’s position now would lead to the “risible argument that a flight in the air of, e.g., a paper aircraft, or a toy balsa wood glider, could subject the ‘operator’ to the regulatory provisions of [14 C.F.R. part 91 and] Section 91.13(a).” The NTSB unequivocally rejects that conclusion:
Even if we were to accept the law judge’s characterization of respondent’s aircraft, allegedly used at altitudes up to 1,500 feet AGL for commercial purposes, as a “model aircraft,” the definitions on their face do not exclude even a “model aircraft” from the meaning of “aircraft.” Furthermore, the definitions draw no distinction between whether a device is manned or unmanned. An aircraft is “any” “device” that is “used for flight.” We acknowledge the definitions are as broad as they are clear, but they are clear nonetheless.
From there, the NTSB concludes that the FAA’s interpretation of its jurisdiction as allowing it to prohibit the “reckless” operation of small, unmanned aircraft under Section 91.13(a) is reasonable. The NTSB is not swayed by the voluntary guidelines found in Circular 91-57:
Nothing in Advisory Circular 91-57, on its face, reflects any intent on the part of the FAA to exempt operators of unmanned or “model aircraft” from the prohibition on careless or reckless operation in § 91.13(a). At most, we discern in the advisory circular a recognition on the Administrator’s part that certain provisions of the FARs may not be logically applicable to model aircraft flown for recreational purposes. But nothing in the text of the document disclaims, implicitly or explicitly, the Administrator’s interest in regulating operations of model aircraft that pose a safety hazard. More importantly, the advisory circular puts the reasonable reader on notice of the Administrator’s intent to ensure the safe operation of model aircraft by appropriate means.
Writing at Forbes, Gregory S. McNeal emphasizes that small drone operators are now on notice that they can be fined for reckless operation of any unmanned aircraft.
Asked for comment, Pirker’s attorney, Brendan Schulman, kindly responded:
While we disagree with the decision, today’s NTSB ruling in the Pirker case is narrowly limited to whether unmanned aircraft systems are subject to an aviation safety regulation concerning reckless operation, an issue that the NTSB has said requires further factual investigation before a penalty is imposed. The more significant question of whether the safe operation of drones for business purposes is prohibited by any law was not addressed in the decision, and is currently pending before the D.C. Circuit in other cases being handled by Kramer Levin. We are reviewing the options for our next steps in the Pirker case.
We agree with Mr. Schulman’s assessment. This decision only goes so far as to say that the FAA can prohibit the reckless operation of model aircraft, the FMRA’s Special Rule for Model Aircraft notwithstanding (apparently). It reaches no conclusions on whether Mr. Pirker should be fined. However, if the law judge finds that Pirker operated his aircraft in a reckless manner, he might have no choice but to sustain a fine.
As a practical matter, we would guess that the NTSB was influenced in its thinking by a growing number of press reports – some of which could be taken more seriously than others – about reckless conduct by amateur drone operators. Perhaps the NTSB even read a recent article in which an amateur operator begged for someone to stop him before he hurt somebody. For now, we can only speculate.
The bulk of the prototype is made of a root-like fungal material called mycelium. It was cultivated in a custom drone shape by Ecovative Design, a company in Green Island, New York, that grows the stuff as a lightweight sustainable alternative for applications like wine packaging and surfboard cores.
The fungal body has a protective covering of sticky cellulose “leather” sheets grown by bacteria in the lab. Coating the sheets are proteins cloned from the saliva of paper wasps – usually used to waterproof their nests. Circuits were printed in silver nanoparticle ink, in an effort to make the device as biodegradable as possible.
So far, so good. But then there’s this:
The next part the team hope to make safe to degrade are the drone’s sensors, and they have already started studying how to build them using E. coli bacteria.
The day rate for a helicopter can range from $20,000 to $40,000 with crew. Operating a drone with crew can cut costs down to a rate that ranges between $9,000 to $15,000, according to Carmean. Elements that affect drone day rates pends the camera, aircraft, crew and location.
“The possibility of making shots that you couldn’t do before is extremely exciting. A director and a director of photography can say I want this shot in a movie and we can get it without a helicopter,” said Poster.
“The insurance; it’s a lot cheaper to insure a 25-pound drone than it is to insure a three-ton helicopter,” Chris Schuster, CEO and lead drone pilot at Vortex Aerial told TheWrap.
That “whoosh” sound you hear might be the sound of jobs and investment going overseas:
Amazon is now expanding its R&D operations in Cambridge – two years after buying Cambridge-based startup Evi Technologies – to take advantage of the talent pool of academics and researchers in the area. The lab will focus on Prime Air, Amazon’s name for its drones project, the blog TechCrunch reported.
Amazon has advertised a number of aviation-related UK jobs in recent weeks, such as a flight operations engineer for Amazon Prime Air: “Flight test experience, manned or unmanned, is preferred,” the advertisement stated. Other roles include a senior research scientist position and a site leader job.
It’s probably correct that Amazon Prime Air has been preparing to conduct testing in the UK for some time, and perhaps this project would have commenced regardless of regulatory progress, or the lack thereof, in the U.S. But one can’t help thinking that FAA foot-dragging is already costing us, dearly.
(Note: The FAA has temporarily un-cancelled Advisory Circular 91-57. See Update, below.)
The FAA’s withdrawal of Advisory Circular 91-57 is causing a round of concern that the agency is taking steps to make hobby drones illegal. This article from Vice is an example.
The Federal Aviation Administration took the first initial steps today toward severely restricting or banning all hobby and commercial drone flights in the country, putting in a request to formally cancel the document under which model aircraft have legally operated since 1981.
While we have expressed our own concerns about FAA overreach, we think that panic in this case is unwarranted. The more likely explanation is that the FAA is cleaning out its attic in preparation for instituting a final regulatory framework under the FAA Modernization and Reform Act of 2012.
First, it is important to understand the applicable language of the FMRA pertaining to model aircraft:
SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT.
(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft, if—
(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).
(b) STATUTORY CONSTRUCTION.—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.
(c) MODEL AIRCRAFT DEFINED.—In this section, the term ‘‘model aircraft’’ means an unmanned aircraft that is—
(1) capable of sustained flight in the atmosphere;
(2) flown within visual line of sight of the person operating the aircraft; and
(3) flown for hobby or recreational purposes.
In other words, Congress has told the FAA that it can’t impose any regulations on model aircraft. That is the law. However, the FAA – for better or worse – is charged with promulgating regulations interpreting the laws that Congress passes, and the courts grant agencies like the FAA a fair amount of deference in how they construe statutory language.
The current fight is over how broadly, or how narrowly, Congress’ definitions for model aircraft should be construed. For example, what did Congress mean by “flown strictly for hobby or recreational use”? What did Congress mean by “flown within visual line of sight of the person operating the aircraft”?
The language of Section 336 of the FMRA, by itself, conflicts with Advisory Circular 91-57 in some respects. For example, AC 91-57 provided for voluntary notice to a control tower when operating within 3 miles of an airport. The FMRA requires notice if operating within 5 miles. Thus, even if the FAA ends up construing (or is forced to construe) the definitions for “model aircraft” broadly, the final language is almost certainly going to be inconsistent with the language of Advisory Circular 91-57.
We therefore see the cancellation of AC 91-57 not as part of a plot to criminalize modeling, but as an example of agency housekeeping.
FAA does plan to cancel AC 91-57 in order to reconcile the outdated AC with current sUAS policy and the “Special Rule for Model Aircraft” provided by Congress as part of the FAA Modernization and Reform Act of 2012. However, this will occur at a later date and will be accompanied by additional information and an explanation as to the reason for the cancellation.
The Volokh Conspiracy guest-bloggers Michael Berry and Nabiha Syed have written a lengthy post about the recent history of litigation between the FAA and small drone operators. It’s an excellent and detailed review of everything from the Pirker case, to Texas Equusearch, to the FAA’s Notice of Interpretation of the special provision governing model aircraft, which led to the recent Petitions for Review filed by Brendan Schulman on behalf of persons such as our friend Peter Sachs.
Indeed, for those who would like to quickly educate themselves on the current state of play vis a vis small drones, or sUAS (also called microdrones), this would be a good place to start.
The FAA has agreed to grant an exemption to Hollywood production companies to use drones in aerial photography. Although the scope of the exemption is not entirely clear, based on the article, this seems like a breakthrough:
In May, seven aerial photo and video production companies asked for regulatory exemptions (known as a 333 exemption) that would allow the film and television industry to use drones with FAA approval. Those seven companies and the Motion Picture Association of America (MPAA), were asked by the FAA to develop the guidelines and safety procedures under which they planned to operate. The FAA reviewed those procedures and is expected to approve the drone-specific rules and standards that will enable Hollywood to be exempt from existing aviation regulations.
One might hope that those procedures can serve as a model for other aerial photographers, but with one major caveat: Hollywood productions tend to exercise greater control over the filming location than many could possibly afford. A typical movie or television location crew will employ local law enforcement and/or private security to prevent interlopers from wandering onto the set. They also tend to have numerous production assistants acting as spotters and gofers, all within walkie-talkie range.
Still, progress is progress. It will be interesting to see the final guidelines when they are published.
Facebook is rolling out plans to deploy high-altitude drones that would allow off-grid connectivity for users of its network. In addition to challenges in design, materials and technology, these drones will take us into some uncharted legal territory:
In order to fly its drones for months or years at a time, as it would have to do in order to provide consistent connectivity, Maguire explained, Facebook’s drones will have to fly “above weather, above all airspace,” which is anywhere from 60,000 to 90,000 feet in the air. That puts these drones on tricky regulatory footing, since there are essentially no regulations on aircraft that fly above 60,000 feet in the air. “All the rules exist for satellites, and we’re invested in those. They play a very useful role, but we also have to help pave new ground,” Maguire said.
Facebook and its counterparts will also have to find a way around regulations dictating that there must be one human operator to every drone, which could drastically limit the potential of such an innovation to scale. For proof, Maguire pointed to a recent solar drone demonstration by a British company, which ended after two weeks to give the pilots a break. “It’s like playing a videogame for two weeks straight with no rest,” he said. “We need a regulatory environment that will be open to one pilot perhaps managing 10 or 100 drones. We have to figure these things out.”
Other than the occasional spy plane or research balloon, what other traffic is at that kind of altitude?
