Given all the meekness we’ve seen in the face of the FAA’s bullying, we find the attitude of this real estate video company representative to be rather refreshing:
“The use of drones in real estate is neither legal, nor illegal. It just has not been regulated yet,” says Brian Doe, director of Business Development at Home Jab; a real estate video production company offering a network of trained filmmakers who create aerial video for real estate marketing.
… “It’s kind of like saying ‘you can’t speed,’ but the road has no speed limit. So how do you determine what speeding is? There is no way to enforce any rule, there is nothing out there about UAV’s, especially fewer than 55 pounds,” says Doe.
As evidence for the proposition that no news outlet is so obscure as to escape our watchful eye, we bring you this story from a publication called Dairy Herd Management. Unfortunately, farmers are caught in the same regulatory void* as professional photographers, realtors, and pretty much everyone else. Peggy Hall, an assistant professor and Ohio State University Extension field specialist in agricultural and resource law, says:
“While landowners, farmers and growers need to know if it is legal to use UASs on their own land to monitor crops or for other uses on their farm, at this point it’s still a gray area in the law.”
Ms. Hall cautions farmers about the risk of incurring fines from the FAA. Perhaps someone ought to put together a pro bono team of practitioners and law students to represent farmers in challenges to the FAA.
* We were tempted to write, “regulatory purgatory,” but thought better of it after having a second coffee.
The unmanned aircraft’s cameras can live-stream visuals needed for building inspections, as well as natural gas detection and cellular tower energy readings for utilities and government agencies.
The service will not become operational until it receives FAA approval. We are frankly unsure of whether the service really needs FAA approval, given the Pirker decision, so long as the service operates line-of-sight aircraft below 400 feet and away from airports. But, as we’ve said before, serious investors in this new field want to play nice because it’s good for business over the long term to do so.
The question is, will the FAA play nice? Approving a business like this should be a no-brainer.
The Twin Cities law firm of Fafinski Mark & Johnson is launching a “drone” practice group. The law firm “said Tuesday that it has been closely monitoring the developing drone industry, and legal advisors and litigators from its aviation group will lead the new practice group.”
Expect to see more aviation law firms expand into the realm of drone law.
The Federal Aviation Administration indicated Wednesday that it is investigating whether a video of an upstate New York congressman’s wedding last month violated the agency’s ban on drone flights for commercial purposes.
The agency’s carefully worded statement doesn’t mention Rep. Sean Patrick Maloney, a Democrat, by name, but said it was looking into “a report of an unmanned aircraft operation in Cold Spring, New York, on June 21 to determine if there was any violation of federal regulations or airspace restrictions.”
Although we hope that the photographer doesn’t get hit, on balance we find this situation to be rather amusing. The FAA is being forced by its own misguided rhetoric to investigate an event that was paid for by a member of Congress whose responsibilities include FAA oversight.
Amazon’s share price is apparently up, in part on news that it has sought FAA approval to test its drone delivery system:
Amazon is asking the government to allow testing of its new delivery mechanism — small package-carrying drones that can travel at up to 50 miles per hour. The company notes in its letter that its drones can now carry loads up to 5 pounds, which it notes covers 86% of all products sold on Amazon.
There’s a lot of confusion in the article, some of which appears to be the fault of Amazon, itself. Let’s begin with this statement:
The FAA, which controls the skies above the US, has prohibited companies from testing drones — only making an exception for hobbyists
Well, not exactly. The FAA doesn’t control all of the skies above the U.S., but only that part of the skies over which it has traditionally exercised jurisdiction. As well, the “exception” for hobbyists is not tethered to the ban on testing, and the FAA has yet to enact regulations defining “hobbyists.” The comment period on the definition has yet to close.
More to the point, the NTSB judge ruled in Huerta v. Pirker that the FAA had failed to draw any meaningful distinction between someone who operates a model aircraft for pleasure and one who operates the same or similar model aircraft for profit. As far as anyone can tell at the moment, the only effective prohibition at the moment applies to aircraft that are operated beyond line of sight – i.e., by methods other than those traditionally employed by hobbyists.
This brings us to the next point:
Amazon argues that its drone testing will actually be safer than that of hobbyists, flying under 400 feet and “in a confined area over isolated Amazon private property” away from airports, government installations, and densely populated areas.
But would they be operated within line of sight? Amazon’s letter to the FAA provides additional detail regarding its proposed testing operations:
The sUAS will (i) have a maximum weight of less than 55 pounds; (ii) be rotorpowered
via a battery source; and (iii) be U.S.‐registered and display marks in accordance with 14 C.F.R. Part 45, Subpart C.5
Our sUAS R&D testing under this exemption will be conducted (i) within the visual line of sight of the operator and/or one or more observers; (ii) at less than 400 feet AGL; and (iii) within Class G airspace.
The operations will be conducted in a confined area over isolated Amazon private property located a sufficient distance away from (i) any airport, heliport, seaplane base, spaceport or other location with aviation activities; (ii) any densely populated areas; and (iii) any military or U.S. government installations or airfields.
All operations will remain within the lateral and vertical boundaries of the operating area, taking into account all factors, including wind, gross weight and glide distances, that may affect the capability of the sUAS to remain within the airspace boundary; moreover, the integrity of the operating area will be reinforced by geo‐fencing, including the ceiling height of no more than 400 feet AGL.
Given these parameters, it is tempting to suggest that Amazon could rely on the Pirker decision and not seek permission from the FAA. But of course, the last thing Amazon wants is to give the FAA an excuse to shut it down. Amazon is trying to play nice, here. The question is whether the FAA will do the right thing.
Earlier in the letter, Amazon indicates that it has thus far been forced to conduct testing either indoors or in foreign countries that already have regulations in place. The fact that Amazon has been forced to conduct its testing abroad is a shame. The FAA should promptly grant Amazon’s request.
Pretty much everyone on the planet has by now seen the YouTube video of a fireworks display that was shot from a drone. A report is now circulating that the FAA is investigating the legality of that flight:
According to Forbes, the FAA is now actively looking into whether drones that fly into fireworks displays is a “violation of federal regulations or airspace restrictions.”
Responding to an auditor’s report critical of its progress toward integrating unmanned aircraft into national airspace, the FAA says it expects to complete a plan by the end of August for a phased implementation approach over five years.
That is good news. However, the article contains this nugget of denial from the FAA regarding the timing of its plan as required by Section 332 of the FAA Modernization and Reform Act of 2012. In response to the Inspector General’s conclusion that the FAA will miss its September 30, 2015 deadline to safely and fully integrate UAS into the national airspace, the FAA responds: “The Act requires safe – not full – integration of UAS into the NAS by September 2015.”
We suppose this depends on what the meaning of “integration” is. Section 332(a)(1) of the Act required the FAA to have a plan in place for the integration of UAS within 270 days of the Act’s date of enactment. The required contents of that plan included provisions for:
(C) a phased-in approach to the integration of civil unmanned aircraft systems into the national airspace system;
(D) a timeline for the phased-in approach described under subparagraph (C)….
The plan scheduled for release at the end of August would apparently comply with those requirements in substance, but it’s coming about a year too late.
In the meantime, Section 332(a)(3) of the Act clearly states:
The plan required under paragraph (1) shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.
The FAA now claims that this language requires some level of safe integration, but not complete integration, by that deadline. This might be a defensible position, given Congress’ omission of the word “all” from the sentence. But given the FAA’s history of foot-dragging, it strikes us as more of a post hoc rationale than a good-faith interpretation of Congressional intent.
Aviation safety expert John Goglia takes the FAA to task for its, um, creative approach to enforcing non-existent laws and regulations. Discussing the many questionable cease and desist letters that have been issued to operators around the country, he notes:
The impact on many operators–especially those holding airmen certificates–has been to cause them to cease operations and lose whatever business they may have been engaged in. The problem is those FAA letters weren’t issued legally and were, in fact, issued contrary to the federal aviation regulations, which authorize only FAA attorneys to issue orders and require any such orders to state specifically how the order can be appealed….
This issue is not going to just go away. The FAA needs to be repeatedly challenged in court, wherever possible.
The Associated Press ran an article yesterday on the IG’s report, which we suppose means that the FAA’s epic fail on developing a regulatory framework for integrating UAS (drones) into the national airspace is poised to become a big story in the mainstream press:
Despite years of research, the Federal Aviation Administration hasn’t figured out what kind of technology unmanned aircraft should use to avoid crashing into other planes, or how to prevent lost links with ground control stations, Matthew Hampton, the Transportation Department’s assistant inspector general for aviation, said in a report.
The FAA also hasn’t set standards for certifying the safety of drone designs and manufacture like those that exist for manned aircraft, the report said. Nor has the agency developed standard procedures for air traffic controllers to guide drones, partly because the FAA’s air traffic control equipment wasn’t developed with unmanned aircraft in mind. There is no adequate program for training controllers how to manage drones. And criteria for training “pilots” who remotely control drones from the ground have yet to be developed.
The story includes this laughable excuse:
FAA officials, defending the agency’s record, said in a statement that the FAA “has made significant progress” toward giving drones wider access to U.S. skies “even as it dealt with disruptions” due to automatic, government-wide spending cuts and a three-week partial government shutdown.
That story might hold water if the partial government shutdown had lasted substantially longer than three weeks. Of course, no agency was given more leeway by Congress during the shutdown, and the notion that the sequester had any material impact on the FAA’s ability to develop UAS regulations over a period of years seems like plain nonsense.
Regardless of budget constraints, the FAA has wasted significant resources prosecuting small operators like Raphael Pirker while harassing countless others. It has also found the time and resources to go around lying to the public that it has effectively banned “all” commercial drone activity. These lawless actions amount to nothing more than an effort at distracting the public and the media from the FAA’s failure to do what Congress has mandated.
As we noted yesterday, President Obama needs to start firing people.
