Congressional Stalemate Persists over Air Traffic Control Privatization as FAA Reauthorization Deadline Approaches

The integration of cutting-edge aviation technology such as commercial drones and the modernization of our national airspace system are just a couple of the pressing aviation issues hanging in the balance this summer as Congress seeks common ground on FAA Reauthorization legislation.  

With the July 15, 2016 expiration of the current Federal Aviation Administration (FAA) authorization legislation rapidly approaching, congressional disagreement over a plan to privatize Air Traffic Control is preventing bicameral endorsement of a path forward.  
 
On April 19, 2016, the Senate passed its Federal Aviation Administration (FAA) Reauthorization legislation by an overwhelming margin of 95-3 (initially introduced as S. 2658 and later merged into H.R. 636). The Senate’s FAA legislation would reauthorize FAA programs through September 2017, and would focus billions of dollars and government resources on some of the most pressing aviation issues including the promotion of widespread commercial drone operations, bolstering airport security, and adding new safety systems in private aircraft. However, the Senate’s FAA Reauthorization legislation is arguably more notable for what it would not do than for what it would do. 
 

Namely, it would not privatize Air Traffic Control.  In the House of Representatives, the pending Aviation Innovation, Reform, and Reauthorization Act of 2016 would completely overhaul domestic Air Traffic Control operations by moving the operations out of the FAA to a non-profit corporation. If successful, the House bill would place approximately 38,000 Air Traffic Control employees, and the management of the safest national airspace system in the world, in the hands of a private corporation.  

Though the Senate and House bills share many commonalities, each passing day without congressional consensus brings mounting fears that the current efforts to modernize American aviation will devolve into an endless string of short-term extensions. The July 15 deadline has industry insiders calling for the House to adopt the Senate’s more measured approach to reauthorization and to table the Air Traffic Control overhaul until 2017.  

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.  
 

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.

 

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.