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A Quick Comment on a Forbes Article on Drones

I wanted to add a few points on the “Disruptive Regulation, or ‘Mother May I?’” section of the recent Forbe’s article Drone Disruption: The Stakes, The Players, And The Opportunities.

Much of the focus of the VC money is on the technology with very little being put into regulatory R & D and interacting with the already existing regulatory structure. Great. People start thinking about lobbying to get around the regulatory problems by getting Congress to give the FAA a special type of legal authority, but once again, we are back at the regulatory R & D point because that new special authority is going to have to assimilate and interact with all the other provisions of the already existing regulatory structure.

On top of the lack of VC money going into the legal R & D area, many of the large companies are being represented by lawyers dabbling in the drone law who are not qualified. One great example is where one law firm wrote an exemption for their client for a pixhawk flight controller, not an aircraft. Let that sink in for a second. You get exemptions for aircraft, not exemptions for parts of an aircraft, which showed the inferior drone 101 knowledge of that firm. That firm later picked up a multi-billion dollar massive global company as their client for another 333 exemption. Another example is of legal malpractice where a different lawyer at a different law firm negligently didn’t complete certain paperwork for their client’s exemption and the exemption was denied, which put the client in a bind because the client could not legally operate their drone commercially for months and months until approval. That attorney is now trying to work with other large companies.

There is also a lot of flux in the law and the FAA guidance. The FAA is relying on their “guidance,” not law, and when they do use regulations, it is because they arbitrarily “activated” regulations that had not historically been applied to drones. Basically, everyone is violating a regulation when they fly their drone. Even flying according to their own guidance documents alone is not compatible with the regulations! The FAA uses this to make you comply with their guidance, because if you don’t, they come after you for violating the regulations, not guidance.

Currently there is a lawsuit going on in the D.C. Circuit Court of Appeals (the court right below the U.S. Supreme Court) challenging the FAA’s drone registration regulations. My firm is assisting John Taylor, the Plaintiff. Basically, the FAA went too quickly and did not do all they were legally required to do to create the registration regulations. On top of that, they also “activated” some registration regulations that had not been historically applied to drones. There is a chance those regulations with be thrown out by the D.C. Circuit Court of Appeals because they were illegally created – which is going to cause things to slow down because the FAA will make sure all their ducks are in a row. A more detailed analysis of the legal problems with the drone registration regulations is here.

This is going to be interesting in how this all plays out since the FAA is trying to get out the microdrone rule soon.

I hope this helps.  🙂


Alleged Crash Between an Airplane and a Drone

It was reported that on Thursday morning a drone and a 1960’s Cessna 172 collided in the air over Costa Rica. It is alleged that the Cessna hit the drone with its right wing strut. This is NOT the wing but the strut supporting the wing. The result was chipped paint on the strut. Superficially, it looks like most of other struts I observed when I was regularly out on the flight line as a flight instructor. If you are wondering why it is normal to see paint chipping, this is because rocks sometimes get blown up during the run-up process of airplanes and hit the aircraft.

helicopter

In the United States, recreational drone flyers should stay below 400 feet above the ground. It is better to stay as low as you can because agriculture pilots and helicopter pilots sometimes fly very low sometimes, almost sneaking up on drone pilots who do not have enough time to react. I compiled a list of FAA guidance documents regarding recreational flyers, excluding 91-57A, in one of the chapters of my book Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them.

Now all you recreational flyers out there calm down. I know many anti-drone folks will use this as a perfect example to say that drones should be heavily regulated before “they take down an airliner,” but I think this is a perfect reminder of how much we need to educate new flyers on how to operate safely.

Unfortunately, as I explained in a previous blog post, the FAA is currently not allowing commercial drone flight instruction under a public COA or a section 333 exemption. We as recreational flyers should attempt to pick up the safety slack promote safety while we still have freedom to fly.

Before we jump to conclusions and fault the recreational drone flyers, let’s ask some questions.

  • How do you know that the pilot was paying attention? There are many accidents that have been caused by the pilots not paying attention. It is a two way street for both parties to see and avoid other aircraft.
  • How do we know this is a recreational drone and not a drone operated by the government? There seems to have been some incidents of the military or even police using drones unsafely. The Academy of Model Aeronautics published a study on the FAA’s drone data and said, “In perhaps the most surprising example, on August 18, 2015, the Los Angeles Police Department notified the Inglewood Police Department that a drone the latter agency was flying over a crime scene ‘needed to come down.’ The drone was flying two miles from the approach end of a runway at LAX.”
  • How do we know that it was the drone operator flying the drone higher than he should have and not a fly away? Could the drone been manufactured incorrectly? Was there some type of GPS interference?
  • How do we know it was a drone? The internet was freaking out that a drone collided with an aircraft but it later turned out to be a bird.
  • Do we have any evidence there was a collision with a drone other than some chipped paint and a pilot’s testimony?
  • Do we have a drone wreck or pieces of the drone?

We need to investigate further and only make determinations when there are hard facts, not just chipped paint and a story.


Two Ways the FAA Can Immediately Help Promote Drone Safety in the National Airspace System

 

Since the House Subcommittee on Aviation is having a hearing on October 7th on “Ensuring Aviation Safety in the Era of Unmanned Aircraft Systems,” I was inspired to write about two things that the FAA can do to immediately promote drone safety.

The FAA can (1) put all the recreational aircraft guidance down in one place and (2)  get FAA certificated pilots involved in the industry.

 

(1) Put Everything Down in One Place.

The FAA has issued advisory circulars and guidance on small unmanned recreational aircraft since 1981.  Over the years the message has not been consistent and at times even contradictory. To illustrate the inconsistency and contradiction, I have compiled this chart on recreational aircraft guidelines. The FAA published their (1) Interpretation of the Special Rule for Model Aircraft, published (2) Law Enforcement Guidance for Suspected Unauthorized UAS Operations, partnered with (3) the Know Before You Fly campaign, published (4) the “What Can I Do With My Model Aircraft?” webpage on the FAA’s website, published (5) Advisory Circular 91-57,  and published (6) an Updated Advisory Circular 91-57 (“91-57A”).

 

Compilation of Recreational Aircraft Guidelines

The aircraft is flown strictly for hobby or recreational use. You can’t make money off the flying incidentally or directly. Sources:  (1),(2),(4),(6).
The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization. Sources: (1),(2),(3),(6).
The aircraft is limited to not more than 55 pounds [Take Off Weight] unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization. Sources: (1),(2),(4),(6).
The aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft. See also § 91.113. Sources: (1),(2),(3),(4),(5),(6).
When flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)). AC 91-57 said 3 miles. Sources: (1),(2),(3),(4),(6).
Do not fly your model in a “careless or reckless manner so as to endanger the life or property of another.” Sources: (2); Section 336(c) of the FMRA; 14 C.F.R. § 91.13, (6).
Do not fly the aircraft beyond visual line-of-sight. Sources: (1),(3),(4),(6) FRMA § 336(c)(2).
“The aircraft must be visible at all times to the operator[.]”Source: (1).
“[T]he operator must use his or her own natural vision (which includes vision corrected by standard eyeglasses or contact lenses) to observe the aircraft.” You cannot use “vision-enhancing devices, such as binoculars, night vision goggles, powered vision magnifying devices, and goggles designed to provide a ‘first-person view’ from the model.” Source: (1).
“[P]eople other than the operator may not be used in lieu of the operator for maintaining visual line of sight.” No daisy chain. Source: (1).
The FAA mentioned in their Model Rule Interpretation § 91.119(c) which says do not operate the aircraft in a non-congested area “closer than 500 feet to any person, vessel, vehicle, or structure.” Model aircraft “may still pose a risk to persons and property on the ground warranting enforcement action when conducted unsafely.” However, in the Know Before You Fly campaign which the FAA partnered with, it says, “Do not intentionally fly over unprotected persons or moving vehicles, and remain at least 25 feet away from individuals and vulnerable property.” This distance requirement is unclear. Sources: (1) and/or? (3).
Fly no higher than 400 feet above ground level and remain below any surrounding obstacles when possible. Sources: (3),(5),(6).
The “operating site that is of sufficient distance from populated areas. The selected site should be away from noise sensitive areas such as parks, schools, hospitals, churches, etc.” Source: (5).
“Do not operate model aircraft in the presence of spectators until the aircraft is successfully flight tested and proven airworthy.” Source: (5).
“Do not fly in adverse weather conditions such as in high winds or reduced visibility.” Source: (3).
“Do not fly under the influence of alcohol or drugs.” Source: (3).
“Do not fly near or over sensitive infrastructure or property such as power stations, water treatment facilities, correctional facilities, heavily traveled roadways, government facilities, etc.” Source: (3).
“Check and follow all local laws and ordinances before flying over private property.” Source: (3).
“Do not conduct surveillance or photograph persons in areas where there is an expectation of privacy without the individual’s permission.” Source: (3).
“[M]ust comply with any Temporary Flight Restrictions (TFR).”(1),(6)
“Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” (1),(6).

 

As you can see, the FAA has a patchwork of guidance on this area. We need to have all the information in one place and be done with it. The FAA needs to take the pieces and sew them all together so recreational flyers know what is exactly required of them as opposed to them having to piece together the hodgepodge guidance.

Furthermore, it would be helpful to include all the regulations that the FAA believes recreational operators are required to comply with in one place; otherwise, a guy who bought a Phantom off Amazon is going to have no clue about the regulations or even where to start!

 

(2) We Need to Get FAA Certificated Pilots Involved in the Industry

We can do this two ways: (A) take the pilot license suspension/revocation possibility off the table, for the time being, for individuals who have pilot licenses and (B) allow commercial flight operations for flight instructing.

(A) Removing the Possibility of a FAA Pilot License Suspension/Revocation

Pilots stand to lose a lot if they get in trouble with the FAA. Not only can they be fined, they can also get their pilot license suspended or revoked. This creates not a safer environment but actually decreases safety, because the most highly experienced and knowledgeable group of people who can operate safely in the national airspace are on the sidelines in fear of losing their licenses or in the worst case, their livelihood. This creates a “vacuum” of knowledge and also a vacuum in the culture of drone operators. You can still keep the licensed pilots in check with large civil penalties.

(B) Allow Commercial Flight Instruction Under the Section 333 Exemptions

Update: Kansas State University received an exemption to conduct flight instruction with drones.

One of my clients received this statement in their exemption from the FAA, “The petitioner also requested authority to conduct UAS training. At this time, the FAA is unable to authorize UAS operations for training until a further assessment is completed. When the FAA completes its review, we will proceed accordingly and no further action will be required by the petitioner. However, the petitioner is permitted to train its own pilot in commands and visual observers in accordance with condition no. 14 and the other conditions and limitations in this exemption.”  The FAA is not exempting individuals or businesses to do commercial flight instruction.

Furthermore, the FAA clarified in an opinion that public universities are prohibited from obtaining public COA’s for education because education is not considered a “core function” of government.

Since FAA certificated pilots are currently prohibited from commercially doing flight instruction of drones,  how do individuals or businesses get practical flight instruction? Are they expected to just go out and fly at some uninhabited baseball field and learn by trial and error (crash)? There is only one FAA approved flight school for drones in the US and the rest are just all illegally operating.


Does a drone operator really need a pilot license?

Does a drone operator need a pilot license to fly the drone?

Update: I’ve edited some of this because most people are focusing more on the license requirement and not the lack of aeronautical knowledge some drone operators have.

My point: all drone operators, recreational and commercial, should have a clear understanding of the national airspace system. I’m not advocating for all commercial drone operations to be required to have a sport pilot, or higher, certificate.

Here are my thoughts.

The FAA believes they are statutorily not allowed to exempt individuals from the pilot certificate. The FAA did not write those statutes, Congress did and they didn’t change them. (Yes, there is a whole fun discussion we could have regarding the pilot license requirement being arbitrarily applied to commercial drone operators while not to model aircraft operators, but that is not what I’m focusing on here.)

I’m going to focus specifically on what skills are required for a commercial drone operator to operate safely in the national airspace system.

The typical response to the license requirement is “I’ve met many licensed pilots and they cannot fly a drone as well as me.”  Yes, a licensed pilot most likely cannot just pick up a drone and fly like you, but you could not even fly as good as you can now when you first started flying drones!  Furthermore, since we are comparing skills, let’s change the common objection slightly to “I’ve met many [model aircraft] pilots and they cannot fly a drone [in the NAS safely] as well as me.” Moreover, I acknowledge that some of the things required to obtain a sport, or higher, pilot certificate do not really in any way translate over to drone flying. Let’s fix this question.

Does a drone operator need to know about airspace and how to read a sectional to fly a drone in the national airspace system?

If you are a drone operator and don’t have a pilot license, how would you respond to that question? (Yes, I agree with you that if you fly your drone really low to the ground, you most likely aren’t going to cause many safety issues.)

Here are scenarios/questions, to provoke thought, for the non-licensed drone pilots wanting to operate in the national airspace system.

Pink X – A farmer wants you to take an aerial shot of his mango farm at 400ft. Can you fly here? What airspace are you in?

Green X – A cell tower company wants you to inspect their towers here. Can you do this operation? What is the height of the towers? Any airport problems? What airspace are you in?

Light Blue X – A construction development company (or real estate broker) wants you to take aerial shots at the altitude corresponding to the view the apartment at the new planned high rise would get. How high can you fly? Are there any potential problems here? What airspace are you in?

Small Red X – Let’s say someone hires you to inspect a commercial building’s roof here. Do you have to talk to anyone on the radio here? If so, who? What is the frequency? What is the big problem with operating here? How high can you fly? What airspace are you in?

CLICK ON THE PICTURE

Airspace

Food for thought guys.

What makes a good commercial drone operator? Stick skills and knowing how to safely operate in the NAS. 🙂

Great Resources:

 


Interesting Drone Law Question

I saw this question posted on the internet today. “Can the FBI legally park a small drone 500 feet over your house with FLIR technology and watch every move everyone in the house makes?”

Here are my thoughts and opinions.

This question has multiple issues but the big ones are (1) FBI being compliant with what the FAA says, (2) the FBI being compliant with what the DOJ says, (3) was there a search for 4th Amendment purposes, and (4) are there any state laws that require a warrant for this type of activity?

 

The FAA and DOJ have issued guidance on this area.

 

The FBI is a government agency and such they are only required to comply with certain parts of the regulations. They do not have eyeballs on board the drone so they must seek a waiver to comply with the regulations (specifically the “see and avoid” requirement in Part 91).  The FBI applies to the FAA to obtain a Certificate of Waiver. The FAA will give them a COA and they will have to operate under the restrictions given.

 

The DOJ and President Obama have issued guidance regarding the use of drones. The Presidential memo addresses the DOJ use of drones and privacy rights. https://www.whitehouse.gov/the-press-office/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-while-safegua Also, the DOJ issued guidance for the FBI which is located here. http://www.justice.gov/file/441266/download  There would need to be some more investigation to find out if the drone use was in compliance with those two documents and whether any violation would likely change anything.

Lastly, was there a search that violated the 4th Amendment?  This area needs to be analyzed under the plain view doctrine and also under Kyllo which discussed FLIR technology and the 4th Amendment.

You should see the case of Florida v. Riley which is a US Supreme Court case which held that a police helicopter at 400ft had a lawful right to be where it was and observe the marijuana. If the FBI drone has a COA and they were at an altitude lawful under the regulations, they had a right to be there observing whatever they wanted to observe.

The next question would be was the use of a FLIR camera a “search” under the 4th Amendment even though the drone is in a lawful place?

The use of FLIR technology does not allow anyone to see INSIDE the house. It would only show a temperature gradient of the OUTSIDE of the house which could show up warm if there is a grow operation in the house.  Kyllo v. United States dealt with law enforcement using thermal imaging and the US Supreme Court looked at the equipment and it was a determining fact that the FLIR equipment was “not in general public use[.]”  https://en.wikipedia.org/wiki/Kyllo_v._United_States
Fast forward to today where they have handheld FLIR cameras for your iPhone for $150!  http://www.amazon.com/FLIR-ONE-Thermal-Imager-iPhone/dp/B00K0PXFB6  I think this case might be decided differently if it came up again because the expectation of privacy is currently diminishing in this area.

Is there a state law requiring law enforcement to obtain a warrant before conducting this type of operation?  Many states have started passing laws in this area requiring warrants. This creates the problem of the introduction of illegally obtained evidence, under state law, into a federal court for a criminal prosecution. This brings up all sorts of sub-issues.