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.
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.
