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.
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.”
