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.”
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.
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.
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+.
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.
