Tag Archives: regulations

The NTSB Remands the Pirker Case [Updated]

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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.

UPDATE: Read this for our follow up thoughts.

Stop worrying, learn to love drones *

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Writing for the Brookings Institution, drone policy expert Gregory McNeal has published a report urging Congress and state legislatures not to overreact when it comes to privacy concerns over drones. McNeal argues, and we agree, that a “technology-centric” approach to legislating privacy protections is misguided, and ends up missing the point:

[Various] legislative efforts have been aimed at restricting the government’s use of drone technology, while largely allowing the government to conduct identical surveillance when not using drone technology. This absurd anachronism is intentional, as privacy advocates have explicitly chosen to capitalize on the public interest and attention associated with the demonization of drone technology as a way to achieve legislative victories. These advocates are admittedly not focused on more sensible legislation that addresses harms irrespective of the technology used.

He notes that current unmanned systems are actually not as effective at surveillance as manned aircraft (which consistent with a point that we have previously made, here). He also points out that banning law enforcement from using drones, in the absence of a warrant, leads to absurd results. For example, using drones to monitor the Boston Marathon – a public event – might benefit public safety. But the law doesn’t allow the Boston PD to do so unless it obtains a warrant by demonstrating probable cause in an application:

That application would need to define with particularity the place to be searched or the persons to be surveilled. All of this would be required to observe people gathered in a public place, merely because the observation was taking place from a drone, rather than from an officer on a rooftop or in a helicopter. In a circumstance like a marathon, this probable cause showing will be difficult for the police to satisfy. After all, if the police knew who in the crowd was a potential bomber, they would arrest those individuals.

Even more absurd is that

in the states where drones have been banned (unless accompanied by a warrant), the police have not been prohibited from using any other type of surveillance equipment—just drones. This technology-centric approach has done little to protect privacy, but will certainly harm public safety, depriving law enforcement of a tool that they could use to protect people.

After reviewing a series of court opinions governing the current state of aerial surveillance, McNeal goes on to provide some recommendations for how legislatures should think about their approaches to drone surveillance regulations. Read the whole thing.

*In what seems like a reference to “Dr. Strangelove,” arstechnica distills the message to “stop worrying, learn to love drones.”

“I’m an idiot, someone stop me!”

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An amateur Phantom II operator (or, perhaps we should say, former operator) did something stupid that could have hurt someone, and now laments the fact that what he was doing isn’t illegal:

The thing is, there are basically zero regulations in the U.S. preventing what I did from happening again. There is no age requirement or learner’s permit necessary to purchase a drone. There are some basic rules in place from the FAA that ban hobbyists from flying over densely populated areas or close to airports, but aside from that, if you stay under 400 feet, you’re good to go.

When it comes to commercial drone flights, on the other hand, the FAA has made them completely illegal in the US. It’s taken years to develop new rules for companies, during which time other countries have forged ahead. And now it’s saying it will miss the deadline set by Congress to get commercial drones flying over American skies in 2015.

This is completely backward. It didn’t really hit me until my own crash, but the FAA is actually focusing its regulation on the wrong group. Companies typically need to carry liability insurance on the machinery they operate. A bad crash would be terrible for a brand, something that will make them more conservative about flights. The people with the least to lose are the casual hobbyist like me.

We think that the writer has a valid point about insurance concerns driving the commercial drone sector. But his call for the nanny state to stop him from acting foolishly is, well, silly. First, his argument assumes that the woman on the bicycle would have been left without a remedy had his careless behavior injured her or her child.

His in-laws probably have homeowner’s insurance. It might have adversely impacted his marriage, but any decent plaintiffs’ lawyer would have immediately looked into that.

And perhaps the writer has his own umbrella policy. He doesn’t say.

But the larger question is, at what point do we call on government to restrict the liberty of others, simply because some people act irresponsibly? We license car drivers, and have laws against reckless driving and drunk driving, but that doesn’t stop cars from being deadly missiles (much more dangerous than a 5-pound drone) in the hands of the wrong person. Requiring licenses for model aircraft operators seems grossly disproportionate to the risk involved.

If we are to remain a free and open society, on some level we have to still count on the virtue of individual citizens as the primary keeper of civic peace. Translated into contemporary parlance:

Don’t be an idiot, and we’ll all get along, just fine.

Amazon Prime Air to Begin Testing in UK

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Prime in the air

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.

No, The FAA Has Not Made Hobby Drones Illegal (UPDATED)

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(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.

UPDATE: Well, never mind, then:

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.

Connecticut Lawmakers Consider Drone Rules

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Today we have links to a couple of local reports on a hearing before Connecticut lawmakers regarding the creation of possible drone rules.

Both reports feature a demonstration by Peter Sachs, who continues to do yeoman’s work on behalf of small drone operators.  An excerpt of Peter’s testimony can be viewed here.

As usual, the media emphasizes privacy concerns while saying next to nothing about the wide range of proven and potential benefits of this technology.  We have unfortunately come to expect this kind of willful ignorance from reporters.

Some legislators fare no better.  Consider the comment from State Rep. Mary Mushinsky, who said, “We had one incident in New Jersey where somebody shot down their neighbor’s drone because he was using the drone to harass the neighbor.”

With all due respect, ma’am, we have seen no report suggesting that the operator was harassing anybody.  Please, learn the facts before you cast your vote on anything pertaining to this issue (or any other issue, for that matter).

Stupidity aside, the Connecticut legislature appears ready to abstain from instituting a moratorium on drone use.

Are Drones Are Invading Our Privacy?

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Business Insider has a well-written article on the issue of whether we should be concerned about drones invading our privacy, and whether new laws are needed to address those concerns. “Private citizens,” the article notes, “have grown increasingly concerned that these technologies could invade their privacy.”

Attorney Brendan Schulman – who has become the go-to guy for comments on sUAS issues – provides a healthy dose of context to these concerns:

As Schulman points out, most states already have laws to address the type of invasions that concern people. For example, peeping tom laws criminalize peering into someone’s windows. And private property laws prevent someone from building a treehouse over their neighbor’s yard. You likely can’t fly a drone there for the same reason, Schulman says.

“If I’m taking pictures through a window,” he said, “and I use a broom stick instead of a drone, it’s the invasive behavior that concerns lawmakers — not what you use.”

The article notes that the camera technology for most civilian drones is not very useful for surveillance. The writer points to this wide-angle city-scape of Seattle, taken by a drone photographer, which illustrates the point that it’s actually very difficult to photograph any sort of details unless the drone gets very close to the subject.

seattle-police-report-drone-photo

Our view is that privacy concerns are just another example of the sort of moral panic that tends to follow in the wake of our permanent, 24/7 news cycle, where perceptions of an issue and reality tend to get out of alignment. We will be observing developments, but contrary to the conventional wisdom in the media, it is neither the most interesting, nor the most important, issue relating to drone law and regulations.

Litigation Pushback Against the FAA: A Brief History

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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.

FAA agrees to movie production exemption

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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 rolls out its high-altitude drones project

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facebook-connectivity1

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?