Uber Flies High in FAA's Airspace

The Los Angeles Times reports that Uber, the ridesharing company, plans to extend its reach into the stratosphere by developing an “on-demand air transportation service.”  The plan appears to be that customers will use Uber’s surface transportation ride hailing system to hop a ride to a “vertiport” where an electrically powered aircraft will carry passengers to another vertiport at which they will be met by another phalanx of Uber drivers waiting to take otherwise stranded customers off the roofs of parking garages and into the traffic they supposedly avoided by using the proposed above ground transportation option.  

The purpose appears to be to allow customers to fly from one part of town to another.  Very creative, but shockingly absent all but one off-hand reference to the Federal Aviation Administration (“FAA”), and the federal government’s total dominance over the airspace of the United States, 49 U.S.C. § 40103(a), including the design and construction of airports, which definition includes “vertiports.” 14 C.F.R. § 157.2. 
 
Whether recognized or not, Uber’s scheme faces a host of questions, and potential regulatory objections, that range from the way in which such episodic operations will merge with the arrival and departure paths of conventional aircraft, to the noise of even electric aircraft operating over existing residential neighbors and pedestrians using city streets.  While these are, to a large extent, the same issues posed by the operation of unmanned aircraft, or drones, they are even more immediate in this case, because the proposed electric aircraft are larger, potentially louder, and, perhaps most importantly, impinge on conventional aircraft regulatory areas long controlled by the FAA.

For example, once an aircraft leaves the ground, FAA takes control, see, e.g., 49 U.S.C. § 40103(b)(1) and (2), and coordinates with other aircraft using the same airspace in order to avoid collision.  The skies in large cities which might benefit from Uber’s scheme such as New York, are already filled with numerous aircraft on approach and departure from the various airports.  Since vertiports presumably won’t have their own air traffic control towers, it is difficult to imagine the way in which this new species of aircraft, with an on-demand operating schedule, rather than one defined in advance, will be integrated into the existing system.  

 
Similarly, vertiports are not conventional airports with runways, and are, therefore, much more in the nature of heliports, which the FAA also controls.  14 C.F.R. § 157.2.  No mentioned is made in the article, or the interview which is its focus, of the way in which Uber will interface with the FAA on the “safety and efficiency” of the facilities’ design.  
 
Finally,  no mention is made of the requirement that surrounding development be made consistent with airport operations, 14 C.F.R. Part 77, since the proposed facilities are airports in everything but name, the same requirement for limiting obstructions to air navigation, 14 C.F.R. § 77.13, could potentially be imposed on the development surrounding the “vertiports,” thereby severely constraining the height, and, thus, economic return of the surrounding developments, as well as interfering with a community’s overall development plan.  
 
In short, creative ideas are what make America great, but the FAA may bring Uber down to earth and make it realize that imagination cannot operate unfettered in the airspace of the United States.  
 

FAA Releases New Commercial Drone Regulations, Section 333 Exemption Holders Get "Grandfathered" Compliance Status

Today, the Federal Aviation Administration (“FAA”) announced the finalization of its long-awaited Final Rule governing routine commercial operation of unmanned aircraft systems weighing 55 lbs. or less.  The new 14 C.F.R. Part 107 will become effective 60 days from the date of its publication in the Federal Register, which is likely to happen this week or next.

Below is an explanation of how the new Part 107 will affect entities that have already received a Section 333 exemption, followed by a summary of the new operational requirements and restrictions:
 
Section 333 Exemption Holders Get Best of Both Worlds: “Grandfathered” Compliance Status and the Option to Take Advantage of the New Rules
 
In the Final Rule, the FAA was careful to protect Section 333 exempt entities from the burden of complying with an additional layer of regulations.  Instead, Section 333 exemption holders will be “grandfathered” into compliance, as explained by the FAA below:
 
“The FAA clarifies that current section 333 exemptions that apply to small UAS are excluded from part 107. The FAA has already considered each of these individual operations when it considered their section 333 exemption requests and concluded that these operations do not pose a safety or national security risk.
 
The FAA recognizes, however, that there may be certain instances where part 107 is less restrictive than a section 333 exemption. Therefore, under this rule, a section 333 exemption holder may choose to operate in accordance with part 107 instead of operating under the section 333 exemption. This approach will provide section 333 exemption holders time to obtain a remote pilot certificate and transition to part 107. Operations that would not otherwise fall under part 107 may not take advantage of this option. For example, an operation with a section 333 exemption that does not fall under part 107, such as an operation of a UAS weighing more than 55 pounds, would not have the option of operating in accordance with part 107 rather than with its section 333 exemption.
 
Additionally, when section 333 exemptions come up for renewal, the FAA will consider whether renewal is necessary for those exemptions whose operations are within the operational scope of part 107, which also includes those operations that qualify for a waiver under part 107. The purpose of part 107 is to continue the FAA’s process of integrating UAS into the NAS. If a section 333 exemption is within the operational scope of part 107, there may be no need for the agency to renew an exemption under section 333. Because the FAA’s renewal considerations will be tied to the outstanding section 333 exemptions’ expiration dates, a 3-year transition period is not necessary. This will not affect those section 333 exemptions that are outside of the operational scope of part 107 or where a part 107 waiver would not be considered.”  
(Final Rule, Pages 83-84.)
 
Thus, for Section 333 exemption holders, the result is the best of both worlds.  On the one hand, Section 333 exempt entities are not required to modify their current commercial drone operations to comply with the new regulations.  On the other hand, if a Section 333 exempt entity identifies an opportunity to perform certain operations under less stringent restrictions promulgated in the new Part 107, it may “choose to operate in accordance with part 107 instead of operating under the section 333 exemption.”
 
Here is the FAA’s Summary of the new operational limitations, Pilot in Command and certification responsibilities, and aircraft requirements:
 
 
New Operational Limitations under Part 107:
  • Unmanned aircraft must weigh less than 55 lbs. (25 kg). 
  • Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the remote pilot in command and the person manipulating the flight controls of the small UAS. Alternatively, the unmanned aircraft must remain within VLOS of the visual observer. 
  • At all times the small unmanned aircraft must remain close enough to the remote pilot in command and the person manipulating the flight controls of the small UAS for those people to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses. 
  • Small unmanned aircraft may not operate over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle. 
  • Daylight-only operations, or civil twilight (30 minutes before official sunrise to 30 minutes after official sunset, local time) with appropriate anti-collision lighting. 
  • Must yield right of way to other aircraft. 
  • May use visual observer (VO) but not required. 
  • First-person view camera cannot satisfy “see-and-avoid” requirement but can be used as long as requirement is satisfied in other ways. 
  • Maximum groundspeed of 100 mph (87 knots). 
  • Maximum altitude of 400 feet above ground level (AGL) or, if higher than 400 feet AGL, remain within 400 feet of a structure. 
  • Minimum weather visibility of 3 miles from control station. 
  • Operations in Class B, C, D and E airspace are allowed with the required ATC permission. 
  • Operations in Class G airspace are allowed without ATC permission. 
  • No person may act as a remote pilot in command or VO for more than one unmanned aircraft operation at one time. 
  • No operations from a moving aircraft. 
  • No operations from a moving vehicle unless the operation is over a sparsely populated area. 
  • No careless or reckless operations. 
  • No carriage of hazardous materials.
  • Requires preflight inspection by the remote pilot in command. 
  • A person may not operate a small unmanned aircraft if he or she knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a small UAS. 
  • Foreign-registered small unmanned aircraft are allowed to operate under part 107 if they satisfy the requirements of part 375. 
  • External load operations are allowed if the object being carried by the unmanned aircraft is securely attached and does not adversely affect the flight characteristics or controllability of the aircraft. 
  • Transportation of property for compensation or hire allowed provided that- o The aircraft, including its attached systems, payload and cargo weigh less than 55 pounds total; 
    • The flight is conducted within visual line of sight and not from a moving vehicle or aircraft; and 
    • The flight occurs wholly within the bounds of a State and does not involve transport between (1) Hawaii and another place in Hawaii through airspace outside Hawaii; (2) the District of Columbia and another place in the District of Columbia; or (3) a territory or possession of the United States and another place in the same territory or possession. 
  • Most of the restrictions discussed above are waivable if the applicant demonstrates that his or her operation can safely be conducted under the terms of a certificate of waiver.
 
New Remote Pilot in Command Certification and Responsibilities under Part 107
 
  • Establishes a remote pilot in command position. 
  • A person operating a small UAS must either hold a remote pilot airman certificate with a small UAS rating or be under the direct supervision of a person who does hold a remote pilot certificate (remote pilot in command). 
  • To qualify for a remote pilot certificate, a person must: 
    • Demonstrate aeronautical knowledge by either: 
      • Passing an initial aeronautical knowledge test at an FAA-approved knowledge testing center; or 
      • Hold a part 61 pilot certificate other than student pilot, complete a flight review within the previous 24 months, and complete a small UAS online training course provided by the FAA. 
  • Be vetted by the Transportation Security Administration. 
  • Be at least 16 years old. 
  • Part 61 pilot certificate holders may obtain a temporary remote pilot certificate immediately upon submission of their application for a permanent certificate. Other applicants will obtain a temporary remote pilot certificate upon successful completion of TSA security vetting. The FAA anticipates that it will be able to issue a temporary remote pilot certificate within 10 business days after receiving a completed remote pilot certificate application. 
  • Until international standards are developed, foreign-certificated UAS pilots will be required to obtain an FAA-issued remote pilot certificate with a small UAS rating.
A remote pilot in command must: 
 
  • Make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the rule. 
  • Report to the FAA within 10 days of any operation that results in at least serious injury, loss of consciousness, or property damage of at least $500. 
  • Conduct a preflight inspection, to include specific aircraft and control station systems checks, to ensure the small UAS is in a condition for safe operation. 
  • Ensure that the small unmanned aircraft complies with the existing registration requirements specified in § 91.203(a)(2). 
A remote pilot in command may deviate from the requirements of this rule in response to an in-flight emergency.
 
The finalization of the new rule marks the most significant step to date toward the implementation of the federal government’s plan to integrate safe commercial drone operations into the national airspace system.  Check in here for updates on the implementation of Part 107 in the coming months.

Senate Bill Approves Package Delivery by Drone

On April 19, 2016, the full Senate of the United States passed the “Federal Aviation Administration Reauthorization Act of 2016” (“FAA Act”), which had been previously passed by the full House of Representatives in February, 2016.  The FAA Act contains several notable provisions, the first of which, Section 2142, regarding federal preemption of local drone regulations, was approved by the Senate Commerce, Science and Transportation Committee on March 17, 2016, and reported in this publication on March 31.  

The FAA Act, as finally approved by the Senate, devotes substantial additional space to unmanned aircraft systems (“UAS”), and, most notably for this purpose, Section 2141, “Carriage of Property by Small Unmanned Aircraft Systems for Compensation or Hire.”  (Section 2141 will be codified in the main body of the legislation at Section 44812.)  That provision was clearly authored by Amazon, which has made considerable noise about the capability of UAS to deliver its products expeditiously and at low cost.  The FAA Act gives the Secretary of Transportation two years to issue a final rule authorizing the carrying of property by operations of small UAS within the United States.  
 
The requirement for the contents of the final rule is, however, clearly specified in the Act.  
 

First, each carrier of property will be required to obtain a “Small Unmanned Aircraft System Air Carrier Certificate” which must include:  

A. Consideration the unique characteristics of highly automated unmanned aircraft systems; and
 
B. Minimum requirements for safe operations, including
 
(i) Confirmation of airworthiness;
 
(ii) Qualifications of operators; and
 
(iii) Operating specifications.
 
In addition, the FAA Act requires a process for issuance “that is performance based and ensures required safety levels are met.”  Section 44812(b)(2).  Specifically, the Bill requires the certification process to consider:
 
A. The safety risks of operating UAS around other UAS and over persons and property on the ground;
 
B. Competencies and compliance” of manufacturers, operators, and parts manufacturers of UAS; and
 
C. Compliance with requirements established in other sections of the legislation.
 
Finally, the legislation establishes a “small unmanned aircraft system air carrier classification” to “establish economic authority for the carriage of property,” Section 44812(b)(3), which only requires registration with the Department of Transportation, and a valid Small Unmanned Aircraft System Air Carrier Certificate issued pursuant to the legislation.  
 
Clearly, there is much more involved in assessing the readiness of UAS to transport packages over inhabited areas.  Only the final rule will reveal the full scope of the regulation that may be necessary to monitor and control a proliferating industry. 
 

 

Senate Version of Federal Aviation Administration Reauthorization Preempts Local Drone Regulations

On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).  

Federal preemption is the displacement of state and local laws which seek to govern some aspect of a responsibility that Congress views as assigned by the Constitution exclusively to the federal government.  Preemption by statute is not uncommon in legislation dealing with transportation, and its relationship to interstate commerce.  For example, the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, specifically “preempts” local attempts to control “prices, routes and service” of commercial air carriers by local operators or jurisdictions.  Similarly, the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”) preempts local efforts to establish airport noise or access restrictions.  The Senate’s current amendments, however, appear, at the same time, broader in scope, and more constrained by exceptions than previous legislative efforts.  They also hit closer to home for the average American concerned about the impact on daily life of the proliferation of UAS for all uses, including, but not limited to, the delivery of packages.  
 

On the one hand, Title II, Unmanned Aircraft Systems Reform Act, § 2142, preempts states and other political subdivisions from enacting or enforcing “any law, regulation, or other provision having the force and effect of law relating to . . . operation . . . of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology, requirements, purposes of operation. . .”  Such a broad brush approach appears to entirely displace efforts at the state level, such as proposed SB 868 in California, authorizing the California Department of Transportation (“Caltrans”) “to adopt reasonable rules and regulations governing the conditions under which remote piloted aircraft may be operated for the purpose of protecting and ensuring the general public interest and safety. . .”  SB 868 is set for hearing April 5.  See also, AB 1724 that would require “a person or public or private entity that owns or operates an unmanned aircraft, to place specific identifying information or digitally stored identifying information on the unmanned aircraft.”  

On the other hand, § 2142(b) purports not to preempt state or local authority “to enforce federal, state or local laws relating to nuisance, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, property damage, or other illegal acts arising from the use of unmanned aircraft systems” with the caveat that such local enforcement is only allowable “if such laws are not specifically related to the use of an unmanned aircraft system for those illegal acts.”  See also, § 2142(c) proposing to extend the immunity from preemption to “common law or statutory causes of action,” “if such laws are not specifically related to the use of unmanned aircraft systems.”  In other words, it would seem that operators of UAS must comply with existing laws relating to “nuisance, etc.,” but cannot be subject to new laws enacted specifically to govern the misdeeds of UAS.  
 
Finally, Congress seeks to compensate for this resulting regulatory void in other sections of the legislation, although the legislation is perhaps most notable for its exceptions from those regulatory attempts.  For example, in § 2101, Congress articulates a “privacy policy” which mandates that “the operation of any unmanned aircraft or unmanned aircraft system shall be carried out in a manner that respects and protects personal privacy consistent with federal, state, and local law.”  At the same time, Congress put the responsibility for enforcement into the hands of the Federal Trade Commission, and its complex administrative procedures.  See § 2103.  
 
Further, in § 2015, the legislation establishes a convention of industry stakeholders to “facilitate the development of consensus standards for remotely identifying operators and owners of unmanned aircraft systems and associated unmanned aircraft.”  However, the impact of that mandate is somewhat diluted by the fact that the FAA will have two years to develop the required identification standards during which time UAS can operate freely and unidentified.  In addition, § 2124 of the legislation establishes “consensus aircraft safety standards” whereby the FAA is mandated to “initiate a collaborative process to develop risk based, consensus industry airworthiness standards related to the safe integration of small unmanned aircraft systems into the national airspace system.”  This section of the FAA Reauthorization is to be codified at § 44803 of the Federal Aviation Act.  However, as with other sections of the legislation, FAA is relieved of its responsibility by a time lapse of one year to “establish a process for the approval of small unmanned aircraft systems make and models based upon safety standards developed under subsection (a).”  Finally, § 2126(b), amending into the Act § 44806, goes even further by granting to the FAA Administrator the power to use his or her discretion to exempt operators from the regulations, thus allowing certain persons to operate unmanned aircraft systems “(1) without an airman certificate; (2) without an airworthiness certificate for the associated unmanned aircraft; or (3) that are not registered with the Federal Aviation Administration.”
 
In short, the breadth of the legislation is too vast to be fully evaluated here.  Suffice it to say, that, given the exclusion of state and local authorities from the arena of drone regulation, and the long delays inherent in the rulemaking set forth in the proposed legislation, it will be some time before cognizable regulations exist to manage the rapidly growing UAS traffic in the United States.  
 

Congress Seeks to End Run Federal Aviation Administration on Drone Rules

Apparently impatient with the Federal Aviation Administration’s (“FAA”) slow progress in developing rules governing the commercial operation of unmanned aerial vehicles (“UAV” or “drones”), Senators Cory Booker (D-NJ) and John Hoeven (R-ND) introduced in Congress legislation to expedite implementation of rules governing the commercial operation of drones.  

Supported by a host of interest groups, ranging from the Association for Unmanned Vehicle Systems International to the National Association of Broadcasters and Information Technology and Innovation Foundation, the stated purpose of the “Commercial UAS Modernization Act,” S.1314 (“Act”) is to amend the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95), to create an interim rule providing basic guidelines for commercial use and testing of small UAS during the period within which FAA finalizes rules governing the operation of commercial UAS.  The Bill allows any person to “operate a small unmanned aircraft for commercial purposes without an airworthiness certificate within the United States, subject to the requirements under subsection (b) and the operating restrictions under subsection (c) during the period beginning on the date of the enactment of this Act and ending on the effective date of a final rule based on the Notice of Proposed Rulemaking Operation and Certification of Small Unmanned Aircraft Systems (80 Fed. Reg. 9544, February 23, 2015).” The Bill’s general requirements include: (1) liability insurance; (2) registration/certification under section 3(a) of the Act; and (3) the operator’s passing of an “aeronautical knowledge test,” Act, subsection (b)(3)(A), as prescribed by FAA in its February 2015 notice.  
 
The permission granted under the proposed legislation is not without limits, however.  
 

In addition, during the relevant period, the UAV operated for commercial purposes: (1) may be operated only under visual line of sight rules, Act, subsection (c)(1) and (5); (2) may not be operated higher than 500 feet above ground level, Act, subsection (c)(2); (3) may not be operated unless the operator has prior authorization from the Air Traffic Control facility having jurisdiction over that airspace, Act, subsection (c)(3)(A) and (B); (4) shall yield to all other users of the national airspace system, Act, subsection (c)(6); (5) shall comply with model aircraft operating standards set forth in FAA Advisory Circular 91-57, June 1981, as revised, Act, subsection (c)(4); (6) may only be operated after a preflight inspection, Act, subsection (c)(8); and, finally, (7) “may not be operated by a person with any physical or mental condition that the individual knows, or has reason to know, would interfere with the safe operation of aircraft.,” Act, subsection (c)(7).  Clearly, the legislation omits several protections that have, until now, been applicable to the operation of UAVs.  First, it does not require that UAVs be operated by licensed pilots.  Second, it appears to leave the determination of whether the operator is competent to operate the aircraft in a safe manner in the hands of the same operator who may or may not have the self-knowledge to make that determination.  

S.1314 has now been referred to the Senate Committee on Commerce, Science and Transportation where it remains as of this date.  

California State Lawmakers Move to Regulate Drones

California legislators are taking advantage of the continuing absence of federal regulation of unmanned aircraft systems (“UAS” or “drones”), and the provisions of the FAA Modernization and Reform Act of 2012, Pub.L. 112-95 (“FMRA”), allowing state and local governments to regulate drone operation in the absence of federal regulation.  Between the start of the new California legislative session, through February 27, 2015, the last day for Bills to be submitted, legislators introduced five Bills.  The most comprehensive of these is AB37, introduced by Assemblymember Campos, and referred to the Assembly Committee of Public Safety, Civil Procedure and Privacy.

AB37 would prohibit most public agencies from using drones, with the exception of law enforcement agencies using them to achieve the core mission of the agency, as long as the purpose is unrelated to the gathering of criminal intelligence.  In addition, even where permitted, the agency would be required to give notice of its intent to use a drone; would generally be prohibited from dissemination under the California Public Records Act, Cal. Gov. Code § 6250, et seq., of images, footage and/or data collected, if disclosure would endanger the safety of a person involved in the investigation; and would be further required to permanently destroy the records within one year.   Finally, unless authorized by federal law, AB37 would prohibit a person or entity, including a public agency, from equipping or arming a drone with a weapon or other device that may be carried by, or launched from, a drone that is intended to cause bodily injury, death, or damage to real or personal property.  (A largely identical Bill, except for a provision prohibiting reimbursement of costs to a local agency or school district, was introduced by Assemblymember Quirk and referred to the same Committee. )

While AB37 is largely aimed at regulating the use of drones by public agencies, complimentary legislation, SB142, introduced by Senator Jackson and referred to the Senate Judiciary Committee, and SB271, introduced by Senator Gaines and referred to the Committee on Public Safety, seek to supplement existing law governing private conduct.  SB142 extends the existing liability imposed for physical invasion of privacy, where a person knowingly enters onto the land of another without permission or otherwise commits a trespass in order to capture any image or recording of the plaintiff engaging in a private activity, and the invasion is offensive to a reasonable person.  In addition, SB142 would define intentional entry upon the land of another also to include operation of a drone below the navigable airspace overlaying the property, and would extend liability for wrongful occupation of real property and damages to a person who, without permission, operates a drone below the navigable airspace.  
 
SB271, in turn, would create a new violation of law for the operation of a drone on or above the grounds of a public school providing instruction in Kindergarten or grades 1-12, inclusive, and would provide for a fine of no more than $150 for the first violation, and no more than $500 for each subsequent violation.  
 
Finally, apparently recognizing the need for a more comprehensive approach, AB14, introduced by Assemblymember Waldron and referred to the Assembly Committee on Transportation, would create an “Unmanned Aircraft Task Force.”  Its purpose would be to formulate a comprehensive plan for state regulation of drones.  The Task Force would be required to submit, among other things, a comprehensive policy draft and suggested legislation pertaining to drones to the Legislature and the Governor on or before January 1, 2018.  The Bill would also provide that these provisions are repealed on January 1, 2022.  
 
While distinguishable, each of these pieces of legislation appears to have the same basic rationale – to ensure that drone operation does not violate Constitutional privacy or self-incrimination protections, and to protect the public from indirect use of deadly force through the use of a drone.  The “jury” remains out on whether any or all of these measures will be enacted in their original forms; or, if they are, whether they will ultimately be in conflict with the terms of yet to be completed federal regulation, thus triggering a battle over the preemptive authority of federal law.  Stay tuned.  
 

Buchalter Wins Historic Grant of Exemption for Client Picture Factory, Inc.'s Drone Filming and Photography Operations - First Ever in Midwest

In a landmark decision for film and production companies, the Midwest of the United States, and the unmanned aircraft systems industry, Buchalter Nemer’s Aviation and Aerospace Practice Group made history last week when it secured a Grant of Exemption issued by the Federal Aviation Administration authorizing film and production company Picture Factory, Inc. to operate camera-mounted drones for the purpose of aerial filming and photography.  Picture Factory, Inc. is the first production company in the Midwest to receive a Grant of Exemption allowing commercial filming operations using drones in U.S. airspace.

“We’re proud to offer yet another cutting-edge way to give our clients unique perspectives and moving camera shots from places otherwise impossible to reach,” said Craig Peterschmidt, co-founder of Picture Factory.
 
The FAA’s Grant of Exemption was issued in response to Picture Factory’s Petition for Exemption under Section 333 of the FAA Modernization and Reform Act of 2012, which provides a procedure for expedited authorization of commercial operations using unmanned aircraft systems weighing no more than 55 pounds.  Picture Factory was represented by attorney Paul Fraidenburgh in Buchalter’s Orange County, California office.  Mr. Fraidenburgh has gained a national reputation for his representation of clients in the unmanned aircraft systems industry.  The Wall Street Journal, Los Angeles Times, and several other publications have quoted Mr. Fraidenburgh on the topic of unmanned aircraft systems, and his clients are among the most cutting-edge aerial filmmakers and aviation companies in the world.  He can be reached at (949) 224-6247 or pfraidenburgh@buchalter.com.
 

FAA Reports Increasing Conflict Between Drones and Civil Aviation

The Federal Aviation Administration (“FAA”) reports that close calls between conventional aircraft and unmanned aircraft systems (“UAS” or “drones”) have increased during 2014 to more than 40 per month over earlier reports of 10 such incidents in the months of March and April.  Some of these incidents have occurred in the busy airspace surrounding Los Angeles, California, Washington, D.C., and John F. Kennedy Airport in New York.  Some of these conflicts have arisen because untrained operators of recreational drones are unaware of FAA’s guidelines governing such use.  Those guidelines ask, among other things, that “hobby” drones stay away from civil aviation, below 400 feet AGL, and at least 5 miles from airports.  However, as FAA prepares to release its highly anticipated Notice of Proposed Rulemaking for small unmanned aircraft systems, the focus is not on hobbyists, but on commercial operators.

Operators of commercial drones, unlike “hobby” drones, are currently required to obtain FAA preapproval prior to operating.  This requires commercial UAS operators to submit Petitions for Regulatory Exemption under the FAA Modernization and Reform Act of 2012, § 333 (“FMRA”).  The parameters of the proposed small UAS regulations, due to be released later this month, must be in accordance with the express provisions of FMRA, and will contain provisions requiring, among other things, that drones stay outside of the established perimeters of commercial airports.  A recent decision of the National Transportation Safety Board (“NTSB”) confirmed FAA’s authority to implement such regulations (as if such confirmation, in addition to a Congressional mandate, were necessary), by overturning the decision of an Administrative Law Judge in Pirker v. Huerta.  In that case, the Administrative Law Judge held that FAA did not have the regulatory authority to fine commercial UAS operators for violation of FAA regulations until such regulations are formalized, a position with which NTSB vehemently disagreed.  

Until the Proposed Small UAS Regulations become final, which may take quite some time following a notice and comment period, the only path to operation of commercial UAS is through the approximately 120 day process of requesting exemptions from current regulations pertaining to manned aircraft which FAA is construing as applying equally to drones. Several exemptions for companies in the film and oil drilling industries have already been granted, along with almost pro forma exemptions for law enforcement and Customs and Border Patrol operations.  A number of additional petitions are currently pending.

In summary, no serious accidents have yet occurred in the United States as a result of a drone interfering with manned aircraft operations.  However, as the number of unmanned aircraft systems operators continues to grow, it is clear that a comprehensive set of well-defined UAS regulations is necessary to facilitate Congress’ ultimate goal of integrating UAS into the national airspace system.

 

Interview with Avionics Magazine

Aviation and aerospace attorney Paul Fraidenburgh was quoted in “Pirker v. Huerta Ruling Clears the Way to UAS Integration” published in Avionics Magazine on November 25, 2014.  The full article is available here: http://www.aviationtoday.com/av/commercial/Pirker-v-Huerta-Ruling-Clears-the-Way-to-UAS-Integration_83611.html#.VHUKG53Tncv

Pirker Reversed: NTSB Confirms FAA Has Jurisdiction Over Drones

Earlier today, in a landmark decision for the unmanned aircraft systems industry, the National Transportation Safety Board reversed the Administrative Law Judge Patrick Geraghty’s order in the Pirker case and held that unmanned aircraft systems fall squarely within the definition of “aircraft” under the Federal Aviation Regulations.  This is the most significant legal opinion issued to date on the issue of drones in the United States. 

In a twelve page opinion reversing the ALJ’s March 7, 2014 decisional order, the NTSB stated:
“This case calls upon us to ascertain a clear, reasonable definition of ‘aircraft’ for purposes of the prohibition on careless and reckless operation in 14 C.F.R. § 91.13(a). We must look no further than the clear, unambiguous plain language of 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1: an ‘aircraft’ is any ‘device’ ‘used for flight in the air.’ This definition includes any aircraft, manned or unmanned, large or small. The prohibition on careless and reckless operation in § 91.13(a) applies with respect to the operation of any ‘aircraft’ other than those subject to parts 101 and 103. We therefore remand to the law judge for a full factual hearing to determine whether respondent operated the aircraft ‘in a careless or reckless manner so as to endanger the life or property of another,’ contrary to § 91.13(a).”
The Federal Aviation Administration’s success on appeal comes as no surprise to most members of the UAS industry, many of whom have already tacitly recognized the FAA’s jurisdiction over unmanned aircraft by specifically requesting regulatory exemptions to conduct commercial UAS operations under Section 333 of the FAA Modernization and Reform Act of 2012.
 

The overturned decision, which had held that Respondent Raphael Pirker was entitled to dismissal of a $10,000 FAA enforcement action arising out of Mr. Pirker’s UAS operations in the vicinity of the University of Virginia’s campus, condemned the FAA for adopting an “overreaching interpretation” of the definition of “aircraft” under the Federal Aviation Regulations.  The order even went so far as to state that adopting the FAA’s interpretation “would result in reductio ad obsurdum in assertion of FAR regulatory authority over any device/object used or capable of flight in the air, regardless of method of propulsion or duration of flight.”  The NTSB’s appellate panel unanimously disagreed.

Today’s decision will maintain lasting significance as the FAA moves forward with developing comprehensive UAS regulations and exercising its jurisdiction over this bourgeoning technology – jurisdiction which the FAA impliedly promised in its appellate brief that it would not abuse.
 

One code to rule them all: Dronecode

Paul Fraidenburgh’s article, “One code to rule them all: Dronecode,” appeared in the October 30, 2014 issue of Computerworld. The article is available here: http://www.computerworld.com/article/2841493/one-code-to-rule-them-all-dronecode.html

Update on Developments in California Drone Law

The governor acted recently on the two bills involving use of unmanned aerial vehicles (“UAVs or “drones”) sitting on his desk, AB 1327 (Gorell) and AB 2306 (Chau). Both were discussed in some depth previously in this space. One bill was signed and the other vetoed. 

These two bills had reached Gov. Brown with overwhelming bipartisan support in the legislature, though the more significant and far reaching of the two, Mr. Gorell’s AB 1327, had garnered opposition from the media and some law enforcement agencies. Specifically, it put limits on law enforcements’ use of drones absent a search warrant. That was the bill the governor vetoed. 

In his message explaining his unwillingness to sign AB 1327, the governor said that the provisions of the bill go “beyond what is required by either the 4th Amendment [to the United States Constitution] or the privacy provisions of the California Constitution.” Apparently, he does not want to add privacy protections to California law, at least in the drone context, beyond the already existing constitutional minimums.  
 
The other bill, Mr. Chau’s AB 2306 which the governor did sign, will take effect January 1, 2015. As discussed before, it creates an actionable invasion of privacy to use a drone to obtain an image or sound recording of a person engaged in a personal or familial activity under circumstances in which the person has a reasonable expectation of privacy. The bill also makes several other changes to California privacy law and provides that the violation of this drone law can result in the imposition of actual, treble, and punitive damages.  
 
Mr. Wagner is Of Counsel to Buchalter Nemer and a member of the California Legislature representing the Central Orange County’s 68th Assembly District.
 

FAA Grants Exemptions for Filming with Unmanned Aircraft Systems

In a landmark decision for the UAS (aka drone) industry and for the aviation industry as a whole, the Federal Aviation Administration announced today that it has granted 6 petitions for regulatory exemptions to operate unmanned aircraft systems for commercial filming operations.  The exemptions will allow the 6 petitioners to operate unmanned aircraft systems for closed set filming in both populated and unpopulated areas.  This highly anticipated decision paves the way not only for other filmmakers who wish to seek exemptions, but for potential future UAS operations in other industries including energy, agriculture, and telecommunications.

Recent Developments in California Drone Law

Two significant pieces of legislation proposing to limit and/or control the use of unmanned aircraft systems (“UAS” or “drone”) were passed by the California Legislature last week and now await the signature of Governor Jerry Brown.  

The first of the two bills, AB 1327 by Jeff Gorell, places certain limits on the use of drones, both by the government and private parties. For example, it bans any weaponization of drones unless specifically authorized by federal law. It also extends existing privacy and wiretapping/electronic eavesdropping protections to the private use of drones but does not prohibit their use in situations where privacy concerns are not likely to be significant, such as those circumstances consistent with the “core mission” of non-law enforcement public agencies like fire or oil spill detection. One can expect the inevitable round of litigation to flesh out the limits of such circumstances and situations where privacy concerns are not likely to be significant. 
 
The bill further permits the use of drones by law enforcement agencies without a search warrant in emergency situations such “hot pursuit,” search and rescue operations, fires, and hostage takings. Such use, however, is limited to cases where “there is an imminent threat to life or great bodily harm.”  Although not specified in the legislation, warrants would otherwise seem to be required under the bill consistent with current practice and Constitutional requirements. Finally, the bill makes clear that the public has a right to know about such governmental drone uses. Any “images, footage, or data obtained through the use of an unmanned aircraft system or any record, including but not limited to, usage logs or logs that identify any person or entity that subsequently obtains or requests records of that system” is presumptively subject to disclosure under the Public Records Act.
 
Although AB 1327 passed with overwhelming support in the legislature, it does not hit the governor’s desk without opposition. The California Newspaper Publishers Association, the California State Sheriffs’ Association, and the California Police Chiefs’ Association, among others, argued against the bill. According to the Sheriffs’ Association:  
This measure would impose requirements for the use of unmanned aircraft in excess of what is required for the use of manned aircraft. While we understand the privacy concerns that may arise from the misuse of unmanned aircraft, we believe that it is inappropriate to impose requirements beyond what is necessary under the Fourth Amendment . . . to protect against unreasonable searches and seizures.

´╗┐In addition, AB 1327 would require law enforcement to destroy information within [six months] of being obtained by an unmanned aircraft system. Unfortunately, criminal investigations do not neatly fall into timelines. [This requirement] will severely hamper investigations for law enforcement. 

Separately, the Newspaper Publishers Association complained that AB 1327 conditioned  
access to information on factors that have no bearing on whether there is a greater public interest to be protected by withholding the record, [which] would make public access to drone information arbitrary. [¶] [The Publishers Association] strongly believes that this approach would create a dangerous precedent that would undermine the presumptive right of public access to information established by the [California Public Records Act] and the California Constitution.
The opposition will now take these arguments to Governor Brown.
 
The second significant drone legislation is AB 2306 by Ed Chau. It also passed through the legislature with overwhelming bipartisan support. In short, it provides that the use of any device, including and especially a drone, to capture an image or sound recording of a person engaged in a personal or familial activity under circumstances in which the person has a reasonable expectation of privacy constitutes a constructive invasion of privacy. Additionally, it is also a constructive invasion of privacy when the drone user attempts to capture through the use of a visual or auditory enhancing device, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaging in a personal or familial activity under circumstances in which the person had a reasonable expectation of privacy. An actual physical trespass to obtain the image or sound is unnecessary if the picture or recording could not have otherwise been obtained without a trespass and without the use of the visual or auditory enhancing device. Any violation of this drone law can result in the imposition of actual, treble, and punitive damages. 
 
As with AB 1327, litigation will likely determine the reach and application of some of the specific sections. However, many of the relevant terms in this bill already exist in California law, and are already well understood by the bench and bar. Thus, this bill seemingly makes few substantial changes to California privacy law other than extending the existing framework to new drone technology. Adding to the idea that Mr. Chau’s AB 2306 does not significantly change the underlying privacy law is the fact that, unlike Mr. Gorell’s bill, AB 2306 did not receive any official opposition. 
 
The Constitutional deadline for Gov. Brown to take action on either of these bills is September 30. If signed, the new laws would take effect January 1, 2015.  
 
Mr. Wagner is Of Counsel to Buchalter Nemer and a member of the California State Legislature representing Central Orange County’s 68th Assembly District.
 

Drone Filmmaking and the Technological Power Shift

MovieMaker Magazine published an article titled “Drone Filmmaking and the Technological Power Shift” by our blog’s co-author Paul Fraidenburgh.  The full text of the article is reprinted after the jump.

 

 

Drone Filmmaking and the Technological Power Shift

By Paul Fraidenburgh on August 13, 2014
 
There is something stirring in the skies, and it’s about to turn the independent filmmaking world upside down. With this year’s arrival of accessible, affordable, and—most importantly—legal unmanned aircraft systems (UAS, or “drones”), aerial cinematography is no longer out of reach for small-scale independent moviemakers. Recent shifts in the technological and regulatory circumstances surrounding small UAS may soon disrupt the filmmaking landscape.
 
Earlier this summer, after extensive back-and-forth with the Federal Aviation Administration, several cinematographers filed petitions for regulatory exemption to operate small UAS (55 lbs and less) mounted with cameras. It now appears highly likely that the FAA will approve the first of these petitions, following a final review of public comments that concluded last month. The petitions were filed pursuant to Section 333 of the FAA Modernization and Reform Act of 2012, which outlines a procedure for expedited authorization for commercial operations using small UAS.
 
The key here is recognizing the difference between “commercial” operations and “recreational” operations. According to the FAA’s recently published “Interpretation of the Special Rule for Model Aircraft,” unless you intend to operate your UAS purely for hobby or recreational purposes, you must obtain an FAA exemption to conduct commercial operations.
 
While that sounds like bad news to some, it is actually great news for independent filmmakers: Section 333 may serve as the great equalizer. By providing a simple and straightforward mechanism for obtaining approval of commercial drone operations, Congress and the FAA have put independent filmmakers on a level playing field with large motion picture companies when it comes to aerial cinematography. With new models of affordable and reliable UAS on the market this year, the technological barriers to entry have already evaporated, and with the FAA finally taking Section 333 seriously, the legal barriers just became far less intimidating.
 
The importance of Section 333 has become increasingly clear over the last several weeks. The Office of Inspector General’s June 26, 2014 Audit Report to the Department of Transportation concluded that the “FAA faces significant barriers” to safely integrating unmanned aircraft systems into the national airspace system on time to meet the FAA’s goal of September 2015. The Audit Report notes that the “FAA’s delays are due to unresolved technological, regulatory, and privacy issues….” In other words, it will be a very long time before we see a comprehensive set of regulations for commercial UAS operations.
 
The delay has broad implications for the UAS industry and for independent filmmakers. First, the delay means Section 333 will remain the holy grail for UAS operators who plan to conduct commercial operations in the foreseeable future. As the sole mechanism by which any person or business can legally use commercial drones in the United States, the importance of Section 333 cannot be overstated.
 
Second, since the FAA considers petitions on a first come, first served basis, the delay means independent filmmakers can position themselves advantageously by seeking FAA approval before the floodgates open. Being amongst the first to conduct domestic UAS filming operations may allow indies to shoot footage that rivals the studios, who have the resources to conduct UAS filming overseas.
 
Nimble artists need nimble technology. The increasing viability of drone photography will allow independent moviemakers to get a bird’s eye view of the next generation of their craft.
 

Amazon Prime Air

Amazon has announced it will use unmanned aircraft systems to deliver packages.  But how soon?  Westlaw Journal Aviation quoted Barbara Lichman and Paul Fraidenburgh today in an article entitled “The FAA’s recent notice and Amazon drone delivery.”  

UAS Update Interview with LXBN TV

2014 has been the year of the unmanned aircraft systems (also known as drones).  Recently, we had the opportunity to sit down with LXBN TV to discuss the state of the UAS industry and what to expect in the coming months.  The interview is available here: LXBN 

FAA Weighs in on the Regulation of "Model Aircraft"

On June 25, 2014, the Federal Aviation Administration (“FAA”) published in the Federal Register, 79 Fed.Reg. 36172, its “Interpretation of the Special Rule for Model Aircraft” (“Interpretation”) established by Congress in the FAA Modernization and Reform Act of 2012, Pub.L. 112-95, § 336 (“FMRA”).  Despite its name, FAA’s interpretation goes far beyond mere definitional clarification.  It is, instead, the first step in establishing FAA’s preemptive authority over Unmanned Aircraft Systems (“UAS”) as “aircraft” utilizing the National Airspace System (“NAS”), even where the operator of an UAS chooses to denominate it a “model aircraft.” 

As a first step in asserting its regulatory authority, FAA takes the position that Congress’ rule in the FMRA is nothing new, but, instead, relies heavily on the long standing statutory and regulatory definition of model aircraft as “aircraft,” i.e., mechanisms that are “invented, used or designed to navigate or fly in the air,” 49 U.S.C. § 40102; 14 C.F.R. § 1.1.  FAA also applies its own 2007 guidelines regarding UAS operating in the NAS, which recognizes that UAS fall within the statutory and regulatory definition of “aircraft” as “devices that are used or intended to be used for flight in the air with no onboard pilot.”  72 Fed.Reg. 6689 (February 13, 2007). 

FAA’s Interpretation, however, goes far beyond the simple inclusion of “model aircraft” in the category of “aircraft.”  The Interpretation expands even further upon FMRA’s three part test defining a “model aircraft” as an “unmanned aircraft” that is: “(1) capable of sustained flight in the atmosphere; (2) flown within the visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”  FMRA, § 336(d). 
 
With regard to FMRA’s second factor, the requirement that the model aircraft stay within the “visual line of sight” of the user, FAA interprets that requirement consistent with FMRA, § 336(c)(2) to mean that: (1) the aircraft must be visible at all times to the operator; (2) that the operator must use his or her own natural vision (including corrective lenses) and not goggles or other vision enhancing devices; and (3) people other than the operator may not be used to maintain the line of sight.  In other words, to maintain the identity as a “model aircraft,” the aircraft cannot be “remotely controlled” from a location other than that at which it is being flown.

The third factor, the definition of what constitutes “hobby or recreational use” is perhaps the thornier. 
 

FAA has defined the terms in accordance with the ordinary meaning reflected in the Merriam-Webster Dictionary definition of “hobby” [“pursuit outside one’s regular occupation engaged in especially for relaxation”], and “recreation” [“refreshment of strength or spirit after work”] [emphasis added].  On that basis, FAA unequivocally asserts that neither “commercial operations” [an aircraft operated by a “person who for compensation or hire engages in the carriage by aircraft in air commerce of persons or property,” 14 C.F.R. § 1.1], nor flights that are in furtherance or are incidental to a business, are for hobby or recreational purposes, and, thus, fall outside the definition of “model aircraft.”  FAA asserts its authority under 14 C.F.R. Part 91 to govern those flights that are for business purposes but do not involve common carriage.  Obviously, the FAA’s interpretation would foreclose from the definition of “model aircraft” any aircraft used in return for compensation or the prospect of compensation.

Even if a model aircraft meets the definition in FMRA § 336(d), it will not automatically be exempt from FAA regulation.  In addition, it must meet the following five factors set forth in FMRA § 336(a)(1)-(5): (1) the aircraft is flown strictly for hobby or recreational use (the same factor as contained in the underlying definition); (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 lbs. 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 five miles of an airport, the operator of the aircraft provides the airport operator and airport traffic control tower with prior notice of the operation. 

FAA interprets the “community-based” set of standards requirement, consistently with the Congressional history of FMRA, to include a “comprehensive set of safety guidelines” established by a “membership based association that represents the aeromodeling community within the United States; [and] provides its members a comprehensive set of safety guidelines that underscores safe aeromodeling operations within the National Airspace System and the protection and safety of the general public on the ground.”  U.S. House of Representatives, FAA Modernization and Reform Act, Conference Report (to Accompany H.R. 658), 112 H. Rpt. 381 (Feb. 1, 2012). 

The requirement that the model aircraft weigh 55 lbs. or less refers to the weight of the aircraft at the time of the operation, not the weight of the aircraft alone.  This limitation is for the purpose of avoiding the situation in which an aircraft could be weighted down with equipment and still meet the 55 lbs. standard.  79 Fed.Reg. 36174 (although the 55 lbs. standard may be exceeded if it meets certain requirements set forth in § 336(a)(3)). 

Finally, FAA is not merely a paper tiger with respect to enforcement of these rules, even where model aircraft meet all the requirements for an exemption, and even where an exemption is applicable.  FAA interprets FMRA to require compliance by model aircraft of rules applicable to all aircraft in general, incorporating: (1) how the aircraft is operated (including the dropping of objects so as to create a hazard to persons or property, 14 C.F.R. § 91.13-15); (2) operating rules for designated airspace (to minimize risk of collisions, 14 C.F.R. § 91.126-35); and (3) special restrictions such as temporary flight restrictions and notices to airmen (NOTAMs) (to accommodate unique and unexpected obstacles to operation, 14 C.F.R. § 91.137). 

FAA interprets its enforcement power to derive not only from FMRA § 336 itself [“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,” § 336(b)], but also from its existing statutory authority “to prescribe regulations to protect people and property on the ground,” 49 U.S.C. § 40103(b)(2); see also 14 C.F.R. § 91.119 governing the altitude of aircraft over populated areas.

In short, there can be no mistake that both the Congress and the FAA regard “model aircraft” as “aircraft,” potentially exempt from specific operating rules under specified circumstances, but not exempt from the safety rules governing all “aircraft” using the NAS.  UAS operators seeking to take refuge behind the denomination of “model aircraft” will do well to seek an exemption under FMRA § 336(a)(1)-(5), and to operate in a manner consistent with FAA general rules governing aircraft safety and the protection of the airspace system and people and property on the ground, or expose themselves to lengthy and expensive enforcement actions that can be avoided with careful scrutiny and understanding of operant law and regulation. 

The public may submit comments identified by Docket No. FAA-2014-0396 on or before July 25, 2014 as set forth in 79 Fed.Reg. 36172.

Commercial vs. Recreational Drones: Are Existing Regulations Backwards?

A problem with the regulatory philosophy towards unmanned aircraft systems is quickly coming into view.  While foreign and domestic governments are investing time and money developing strict standards for commercial drone use, the more pressing threat of recreational use has largely escaped the regulatory spotlight.

 
The Australian Transport Safety Bureau (ATSB) finalized two reports last week that shed some light on the perils of recreational drone use.  The first report describes a near collision of a passenger plane with an unmanned aerial vehicle (UAV) near Perth Airport in Western Australia.  While approaching the airport for landing, the crew “sighted a bright strobe light directly in front of the aircraft,” reports the ATSB.  The UAV tracked towards the aircraft and the pilot was forced to take evasive action, dodging the UAV by about 20 meters.  The ATSB has been unable to locate or identify the operator of the UAV, which was flying in restricted airspace at the time of the incident.
 
The second report describes another near collision with a recreational drone just three days later in the airspace over Newcastle, the second most populated city in the Australian state of New South Wales.  In that incident, the crew of a rescue helicopter spotted a UAV hovering over Hunter Stadium during an Australian football match.  The UAV tracked towards the helicopter as the helicopter began its descent.  The ATSB’s report was supplemented with a comment by Australia’s Civil Aviation Safety Authority (CASA), which explained that the UAV appeared to be a “first person view” vehicle that was transmitting a live video feed back to its operator.  In other words, the operator was watching the game.  Neither the venue nor the official broadcaster took or authorized any aerial footage of the game.  CASA noted that over 90% of complaints received about UAVs relate to incidents caused by first person view drones.
 
Though these reports come from halfway around the world, they highlight a flaw in the Federal Aviation Administration’s (FAA) approach to the use of drones in American airspace.  The FAA subjects commercial drone users to strict regulations arising from traditional “aircraft used in commerce” standards while applying the more liberal “model aircraft” standards to recreational drone users.  (See 14 C.F.R. § 91.119 [requiring aircraft used in commerce to stay at 500 feet or more in altitude above rural areas and 1,000 feet above urban areas].)  The FAA staunchly defended this system in its appeal of the Pirker case, in which the FAA seeks to overturn the decision of an administrative law judge who ruled the FAA had no regulatory authority when it fined the operator of a drone used for commercial photography.  So does it make sense for the FAA to take a hard stance towards commercial drones and a more liberal stance towards recreational drone users?
 
Probably not.  Here’s why:

  

Google, Facebook, and Amazon are among the companies preparing to use drones in the ordinary course of their businesses.  Google and Facebook plan to blanket the earth with internet access and Amazon plans to deliver packages.  These companies have invested millions of dollars not only to develop commercial drone technology, but to monitor the pulse of the regulatory environment for commercial drones.  When the FAA finally issues its new drone regulations (due by September 2015), these companies will have teams of attorneys prepared to advise on how they can legally and safely mobilize their fleets.
 
Unlike commercial drone users, recreational drone users are extremely difficult to regulate.  The person flying a drone over the football game is unlikely to be as responsive to the new regulations as Amazon or Google.  Recreational drone users do not have the same profit-driven concerns as commercial users, meaning they have less incentive to monitor and comply with current regulations.  Remember, recreational drone users, by definition, are just having fun.  They may not even know what the FAA is.  The activities of recreational drone users are also more difficult to monitor.  Combined with the increasing availability and affordability of drones, recreational drone users will pose a far greater threat to safety in the air and on the ground than the Googles and Amazons of the world.
 
With the highly anticipated new drone regulations due out within the next 15 months, only time will tell whether the FAA will correct its disproportionate treatment of commercial and recreational drone users.
 

 

Decision in Pirker Case Invokes Specter of Local Regulation of Unmanned Aircraft Systems

While many members of the growing community of developers, manufacturers and operators of Unmanned Aircraft Systems (“UAS”) have expressed enthusiasm at the National Transportation Safety Board Administrative Decision in the Pirker case, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, their reaction should be tempered by the law of unintended consequences.  The outcome of the administrative action, which the Federal Aviation Administration (“FAA”) has since appealed, acknowledges not only the FAA regulation that is certain to arise as a result of the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95, § 334 (“FMRA”), but also opens the door to unrestricted local regulation. 

Specifically, Pirker’s argument is based on the assumption that the UAS at issue is a “five-pound radio-controlled model airplane constructed of styrofoam [sic],” Motion to Dismiss, p. 1.  He does not cite, or even refer to, any operant statutory or regulatory definition of “model aircraft.”  On that basis, Pirker alleges that his operation of the “model airplane” cannot be regulated because FAA has “fallen far behind its own schedule, as well the scheduled mandated by Congress,” Motion to Dismiss, p. 1, for enacting regulations.  Pirker again fails to refer the Court to the full extent of the Congressional mandate in FMRA which effectively disposes of his fundamental argument. 
 

First, the term “model aircraft” is explicitly defined in FMRA, § 336(c)(1)-(3), as, among other things, “unmanned aircraft that is . . . (3) flown for hobby or recreational purposes.”  While Pirker does not explicitly state what has since come to light, i.e., that he was operating the aircraft for compensation, he does acknowledge that he “operated the model for the purpose of supplying aerial video and photographs of the University of Virginia campus to an advertising agency.”  Motion, p. 3.  Consequently, Pirker’s activities fall outside the scope of Congress’ definition of “model aircraft.”  See, Chevron, U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837, 842-43 (1984) [“If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency, must give effect to the unambiguously expressed intent of Congress.”].  

Second, even if, for argument’s sake, Pirker were correct that UAS are “model” aircraft, which he is not, then regulation of UAS would be thrown open to “a community based set of safety guidelines,” i.e., local regulation.  FMRA, § 336(a)(2).  The result could be a diverse and inconsistent set of regulations enacted by local communities throughout the country who may not be knowledgeable about the beneficial purposes to which UAS can be put, but are justifiably concerned about their careless, or potentially dangerous operation.

In the final analysis, under the incontestable mandates of FMRA, UAS operated for commercial purposes are engaged in interstate commerce and are, thus, subject to regulation by FAA.  [See, e.g., 49 U.S.C. 40103(a)(1) re: “Sovereignty and the Right of Public Transit – (1) The United States Government has exclusive sovereignty of airspace of the United States.”]  That regulations specific to UAS have not been finalized, and that FAA acknowledges the inapplicability of some current regulations to UAS, does not exempt UAS operated for commercial purposes from complying with those regulations that can reasonably be applied.  Which regulations may be applicable, and the extent to which they can reasonably be applied, must be, like the development of new regulations, the subject of ongoing conversations with FAA as it works its way through the revolutionary new processes and accompanying new issues presented by the exploding operations of UAS throughout the United States. 
 

FAA Pushes Back Against Advocates of Unregulated Drone Operations

The Federal Aviation Administration (“FAA”) has appealed a recent National Transportation Safety Board administrative decision, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, in which Administrative Law Judge Patrick Geraghty ruled that FAA had no regulatory authority when it fined the operator of an Unmanned Aircraft System (“UAS”) (otherwise known as “drone”) used for commercial photography, for operating a UAS at an altitude below that approved for commercial manned aircraft.  It would do well for developers, manufacturers and operators of UAS to listen carefully to FAA’s views because the decision, while preliminary, and subject to appeal through many levels of the Federal Court system, has opened the proverbial Pandora’s Box in the relationship of manned and unmanned aircraft and their joint, or separate regulatory frameworks. 

First, it is important for the UAS community to recognize that, while Administrative Law Judge Geraghty found an absence of regulatory authority in the FAA, the Opinion did not acknowledge the seminal issue of “the federal government’s pervasive regulation of aircraft, airspace and aviation safety,” see, Montalvo v. Spirit Airlines, 508 F.3d 464, 472-74 (9th Cir. 2007).  That pervasive control arises under the Federal Aviation Act, 49 U.S.C. § 40101 in which Congress expressly granted to the Secretary of Transportation, through his/her designee, the FAA, the tasks of, among other things, “controlling the use of the navigable airspace and regulating civil and military operations in that airspace in the interest of the safety and efficiency of both . . .,” 49 U.S.C. § 40101(d)(4), as well as “encouraging and developing civil aeronautics, including new aviation technology.”  49 U.S.C. § 40101(d)(3).  That express assignment of responsibility alone gives FAA “skin in the game.” 

FAA’s response more specifically addresses what it believes to be misapprehensions about the extent of its power and authority. 
 

First, FAA addresses the “myth” that it doesn’t control airspace below 400 feet, by reference to 14 C.F.R. § 91.119 which requires that aircraft used in commerce stay at 500 or more feet in altitude above rural areas and 1,000 feet above urban areas.  Second, and related, FAA disputes that model aircraft guidelines apply, i.e., that UAS used in commerce should be treated in the same way as models operating below 400 feet, three miles from an airport, and away from populated areas. 

Third, FAA takes the position that “there are no shades of gray in FAA regulations,” and, thus, anyone who wants to fly, manned or unmanned in the United States airspace needs some level of FAA approval.  FAA states that:

“Private sector (civil) users can obtain an experimental airworthiness certificate to conduct research and development, training and flight demonstrations.  Commercial UAS operations are limited and require the operator to have certified aircraft and pilots, as well as operating approval. To date, only two UAS models (the Scan Eagle and Aerovironment’s Puma) have been certified, and they can only fly in the Arctic. Public entities (federal, state and local governments, and public universities) may apply for a Certificate of Waiver or Authorization (COA).”

Finally, FAA attempts to dispel what it believes to be the misconception that all commercial UAS operations will be allowable after the deadline established by Congress for the development of regulations, September 30, 2015.  Promulgation of regulations will be incremental beginning with UAS under 55 pounds, later this year, with as yet unspecified provisions applicable to commercial operations. 

In fact, FAA has already started planning the rule making process in its November 7, 2013 publication of “Integration of Civilian Manned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap” (“Roadmap”) which sets forth “the tasks and considerations needed to enable UAS integration into the NAS . . .” Roadmap, p. 5.  FAA plans to follow up with an annual publication setting forth “further refined goals, metrics and target dates.”  Id. 

In the final analysis, and despite the recent administrative court decision bruited about by the press, the real challenge for UAS developers, manufacturers and operators, both present and future, is to successfully navigate the dangerous shoals of FAA regulation and to “work collaboratively and apply the necessary resources to bring this transition to fruition while supporting evolving UAS operations in the NAS.”  Id. at p. 5.