Paul Fraidenburgh

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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…

On February 15, 2015, the Federal Aviation Administration published its highly anticipated Notice of Proposed Rulemaking (NPRM) on the Operation and Certification of Small Unmanned Aircraft Systems (applicable to UAS weighing 55 lbs. and less).  The proposed rules would add a new Part 107 to Title 14 Code of Federal Regulations to allow for routine civil operation of small UAS in the National Airspace System (NAS).  Although a lengthy comment and revision period is expected to delay finalization of the regulations for another 18-24 months, Section 333 of the FAA Modernization and Reform Act of 2012 will continue to provide a procedure for expedited authorization of commercial small UAS operations in the interim.  The final Part 107 will serve as the foundation for a multi-billion dollar UAS industry in the United States. Continue Reading FAA Releases Proposed Rules for Commercial Drones; White House Launches Drone Privacy Policy

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.
 

Continue Reading Pirker Reversed: NTSB Confirms FAA Has Jurisdiction Over Drones

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…

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:

Continue Reading Commercial vs. Recreational Drones: Are Existing Regulations Backwards?

“Disruption” has become the buzzword of the decade for technology startups.  Entrepreneurs take aim at existing markets every day with ideas designed to uproot and redefine their industries.  But some of the most innovative disrupters are having trouble bringing their ideas to a place where disruption is generally unwelcome: the airport.

Car sharing services such as Zipcar, Car2Go, and Getaround and ride sharing services such as UberX, Lyft, and Zimride are changing the game in ground transportation.  By using smartphone apps to connect drivers who have open seats in their vehicles with passengers who need rides, the ride sharing movement is reducing traffic and fuel usage.  Similarly, by planting a network of available cars throughout a city and allowing consumers to access the vehicles for a fee, car sharing makes it more practical for consumers to forego vehicle ownership altogether.  In 2014 alone, these companies have amassed hundreds of millions of dollars in venture capital financing.  Many consumers prefer these services to taxi cabs or other traditional methods of ground transportation because they are more convenient, affordable, and in some cases more environmentally friendly.  As with taxi cabs, airports are natural hubs of activity for car sharing and ride sharing services.

Notwithstanding the rising tidal wave of demand, most airports have yet to develop a workable approach to the unique legal and logistical challenges presented by car sharing and ride sharing services.  Instead, airports are prohibiting these companies from picking up or dropping off passengers at their terminals.  At a recent conference of in-house airport lawyers, several representatives from some of North America’s largest aviation hubs expressed serious concerns about these services.  One attendee suggested setting up “stings” by using the popular ride sharing apps to order rides from the airport and arresting the drivers for lack of taxi cab certification when they arrive.

However, non-airport regulators are beginning to appreciate that ride sharing services are not cab companies and should not be subject to the same regulations.  In September of 2013, California became the first state to provide a regulatory framework for Transportation Network Companies (“TNCs”), defined by the California Public Utilities Commission (“CPUC”) as any organization that “provides prearranged transportation services for compensation using an online-enabled application (app) or platform to connect passengers with drivers using their personal vehicles.”  (See CPUC Decision 13-09-045.)  The Illinois House of Representatives followed suit last week when it passed HB 4075, which seeks to implement a set of regulations specific to ride sharing services.

With mounting political and consumer support for car sharing and ride sharing, airports are under increased pressure to adopt policies regulating these services instead of prohibiting them.  Developing practical, sustainable policies that address issues such as airport congestion, service monitoring, and revenue sharing may prove to be a more profitable and efficient solution than denying airport access to car sharing and ride sharing companies.
 Continue Reading Sustainable Airport Policies for Car Sharing and Ride Sharing Companies

After protracted litigation challenging plans to build 130 wind turbines, each 440 feet tall, in a 25 square mile area of Nantucket Sound, the D.C. Circuit last month denied petitions for review of the Federal Aviation Administration’s (“FAA”) determination that the turbines would pose no hazard to air navigation.

The petitioners, the Town of Barnstable, Massachusetts and a non-profit group of pilots and others, challenged the no hazard determinations based on the FAA’s failure to analyze the safety risks posed by the project and to perform an environmental review required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332.  The D.C. Circuit had previously vacated a 2010 no hazard determination based on the FAA’s failure to consider potential adverse effects of the turbines on pilots operating under visual flight rules (“VFR”) and the potential that electromagnetic radiation from the turbines would interfere with radar systems in nearby air navigation facilities.

Noting the circumstances had changed after the FAA upgraded the radar and beacon at Otis Airfield, the circuit court’s January 22, 2014 opinion upheld the FAA’s 2012 no hazard determinations.  The court concluded that the FAA properly based its determinations on aeronautical studies conducted according to the FAA Handbook, Procedures for Handling Airspace Matters, FAA Order JO 7400.2J (February 9, 2012), of which Section 3 on identifying and evaluating aeronautical effect was applicable.  According to the court, the FAA could reasonably view its Handbook procedures implementing the Secretary of Transportation’s regulations as requiring a threshold finding before triggering the need for a more advanced “adverse effects” analysis under Handbook Section 6–3–3 which states that “[a] structure is considered to have an adverse effect if it first … is found to have physical or electromagnetic radiation effect on the operation of air navigation facilities.”
 Continue Reading D.C. Circuit Upholds FAA’s “No Hazard” Determinations Regarding Electromagnetic Radiation from Nantucket Sound Wind Turbines