Late last year, Jeff Bezos, the founder and CEO of Amazon, made
national news with his announcement that Amazon was working on a
drone system that could be used to deliver packages to the
consumer's front door. At roughly the same time, the Federal
Aviation Administration ("FAA"), the federal agency
responsible for oversight of these unmanned aircraft systems
("UAS"), issued a set of documents broadly outlining its
plans for integration of these systems into the U.S. national
airspace system ("NAS"). Shortly before New Year's
Day, the FAA announced six UAS test sites that will be instrumental
in developing the necessary knowledge to facilitate this
integration. In light of these recent public announcements, one
could reasonably think that the advent of domestic drone technology
is right around the corner. In truth, the United States is a long
way from allowing routine use of UAS in domestic airspace. However,
a recent decision from an administrative law judge
("ALJ") at the National Transportation Safety Board
("NTSB"), if upheld by the NTSB on appeal, could
effectively remove the FAA from an oversight position in the
near-term, at least for smaller UAS.1 Whether the
ALJ's decision is upheld or not, the FAA needs to rethink how
it plans to exercise that oversight if it wants to remain
relevant.
The use of drone technology by public entities like Customs and
Border Protection and local law enforcement agencies, while not
exactly widespread, is not unusual. This is because, unlike private
operators, the FAA has no jurisdiction over public aircraft, and
public aircraft operations are subject only to those regulations
regarding the safe interaction of public and civil aircraft in the
NAS. So, for example, public aircraft operators flying in
instrument conditions must be in contact with air traffic control,
but the aircraft that is being flown does not need to meet safety
standards and does not generally need to be operated in accordance
with federal standards. Because of their status, operators of
public UAS need only receive a Certificate of Authorization (or
waiver) ("COA") from the FAA. These COAs detail the
airspace in which the UAS may operate (which the FAA may close to
other traffic), may impose time-of-day restrictions, and may
require the operator to take steps to address the chance of a
runaway situation. Border protection drones and other defense
applications remain the most common public UAS operations, but
other federal agencies, and state and local law enforcement
authorities, are using drones for their purposes as
well.
Certainly there is a value to public UAS operations, both in terms
of surveillance and monitoring. However, the greatest value of UAS
technology is probably in the commercial sector. Proposed
commercial UAS employment includes aerial agricultural spraying,
inspecting oil and gas pipelines, monitoring ports and power
facilities, delivering packages and transporting cargo, and
alerting emergency responders to potentially dangerous fumes from
an accident. For many of these applications, the technology already
exists and the costs have lowered to a point that is commercially
feasible. However, the FAA will not currently permit commercial UAS
operations because the existing regulatory structure is
insufficiently flexible to address the design and operation of UAS.
New regulations are needed.
The announcement of the six test sites and the federal
government's strategic plan for facilitating integration of UAS
into domestic airspace is encouraging. However, it also indicates
just how far the FAA is from developing a comprehensive regulatory
scheme that will facilitate the type of integration that
entrepreneurs like Mr. Bezos envision.
Current Regulation of Commercial UAS
At the present time, a company hoping to operate a UAS is required to obtain a Special Airworthiness Certificate—Experimental Category (experimental airworthiness certificate). However, the FAA will approve an experimental airworthiness certificate for a UAS only for the purposes of research and development, market surveys, and crew training. Since the majority of anticipated commercial applications for UAS technology do not fall within one of these three categories, this certificate is of limited utility, and less than 120 certificates have been issued to date. Once one receives an experimental airworthiness certificate, one must also receive special operating authority before the UAS can actually be flown. FAA guidance materials on both the experimental certificates and special operating authority for UAS make no distinction between very small UAS and large drone technology like the Department of Defense's Predators, even though the performance capabilities (and attendant risks) are dramatically different. This approach, while adopted because of concerns over the safety of UAS technology generally, is in direct contrast to the approach the FAA has taken with respect to traditional aircraft designs and operations, where the level of risk is appropriately distinguished among different classes of aircraft and operations, with scheduled air transportation on transport category aircraft meeting the most stringent standards and model aircraft subject to essentially no regulations at all.
Challenges to the FAA's Current Enforcement Posture
In fairness to the FAA, it has been trying for the past several
years to issue a small UAS (under 55 pounds) regulation that would
permit the use of these aircraft in domestic airspace without an
experimental airworthiness certificate and special operating
authorization. However, the agency has yet to publish a notice of
proposed rulemaking ("NPRM"), and a final rule is likely
years away. The FAA is hoping to issue the NPRM by the end of this
year. If successful, there would not be a final rule until 2016 at
the earliest.
Ironically, the majority of UAS that would qualify as small UAS
under the contemplated rule may already qualify as model aircraft
under FAA guidance. As such, it is unclear to many why the FAA
believes it must regulate these UAS at all. The FAA signaled in an
Advisory Circular issued in 19812 that it did not intend
to regulate model aircraft, although the circular failed to
actually define the term and the FAA has not done so elsewhere,
leaving some doubt as to what qualifies as a model aircraft. The
advisory circular makes no distinction between use for recreational
or business purposes; however, the FAA first noted in a 2007 policy
statement and then reiterated in 2013 that the use of small UAS
"for business" purposes was prohibited under the existing
guidance for hobby aircraft,3 i.e., the 1981 advisory
circular. The 2007 policy statement asserted that the 1981 advisory
circular was issued only to accommodate the recreational use of
model aircraft and therefore did not apply to the business use of
the same type of aircraft as small UAS.
Some have challenged the FAA's authority to make such a
pronouncement, and the post-hoc distinction is, in some respects,
philosophically at odds with both the apparent lack of safety
concerns over aircraft of this size and the agency's general
distinction of operations "for compensation or hire" and
operations on one's own behalf, regardless of whether that
operation is in support of a nontransportation-related enterprise.
The distinction on commercial use historically has been whether
someone else is paying the operator for a service, not whether
there is any business purpose. Thus, charter operators are subject
to much more stringent regulations than a corporation flying its
own employees. Yet under the 2007 policy statement, a business
enterprise may not use even a small UAS without specific FAA
authorization, even if not receiving any compensation from
others.
The prohibition on use of small UAS for business purposes is widely
flouted and misunderstood. Newscasters routinely tell the viewing
public that there are no restrictions on the use of this technology
after first reporting on its use to photograph real estate or to
monitor crop production. The FAA has taken some enforcement action,
but the enforcement activity appears to be limited and low-profile.
The actual regulatory infraction cited is typically for
"careless or reckless operation of an aircraft" in
violation of 14 C.F.R. 91.134 rather than the operation
of an aircraft that cannot meet all of the applicable regulations
referenced in the 2007 policy statement. And, in general, it is
hard to believe these devices carry much risk. They typically fly
at very low altitudes and, as such, are unlikely to interfere with
other aircraft unless operated close to an airport. While they
could damage property or injure a person, any damage is arguably
better addressed through civil litigation, just as the case would
be for recreational model aircraft.
Indeed, the FAA's enforcement policy on small UAS has recently
been successfully challenged. On March 6, ALJ Patrick Geraghty set
aside the FAA's penalty assessment against Raphael Pirker, who
had been charged with violating 14 C.F.R. §91.13(a). Mr.
Pirker had used a small, remote-controlled power glider to take
pictures of the University of Virginia campus and medical center
for Lewis Communications. Notably, the FAA did not allege that Mr.
Pirker was operating the UAS without an airworthiness certificate
or in violation of any operating rules, although it did note that
he did not possess a pilot's license.
Rather than pay the $10,000 proposed civil penalty, Mr. Pirker
argued that the FAA had no authority to regulate model aircraft,
regardless of whether the operation of the aircraft was for
recreational or professional purposes. In short, the FAA's
reliance on internal orders and its 2007 Policy Statement, rather
than on any validly issued regulations, as well as its 1981
Advisory Circular apparently ceding regulatory oversight of model
aircraft, prevented the FAA from asserting any regulatory
jurisdiction over small UAS, because model aircraft do not qualify
as "aircraft" as contemplated by statute or
regulation.
In agreeing with Mr. Pirker, Judge Geraghty found that the power
glider was not an aircraft and that the FAA had no authority, in
the absence of regulations specifically addressing UAS, to
characterize small UAS as aircraft. Since Mr. Pirker was not
operating an aircraft, he could not have violated 14 C.F.R.
§91.13(a). On March 7, the FAA appealed the ALJ's
decision, which had the effect of staying the court's decision.
Thus, until the NTSB rules, UAS are still considered subject to FAA
regulatory oversight consistent with existing regulations and the
2007 policy statement.
Given the tenor of the ALJ's decision, one might assume that he
is typically hostile toward the FAA. That is not the case. Judge
Geraghty is generally considered by the FAA's enforcement
attorneys to be a fair and reasonable arbiter. His reputation for
even-handedness may be the greatest indicator of risk for the FAA
on appeal. Judge Geraghty likely went too far in finding that Mr.
Pirker's glider was not an aircraft because UAS are not defined
as aircraft in statute or the agency's regulatory definition of
aircraft. These definitions are meant to be broad precisely because
developing technologies foreclose a precise definition.
Additionally, contrary to the finding that the FAA had ceded all
jurisdiction over model aircraft through the 1981 advisory
circular, the FAA has specifically regulated the use of model
aircraft in notices to airmen and has never issued a regulation
waiving jurisdiction. In contrast, the FAA has specifically waived
its oversight of amateur rockets in its regulations applicable to
commercial space.5
While it is fair to argue that the FAA cannot enforce a requirement
for an experimental airworthiness certificate or pilot license
requirements for small UAS in the absence of a specific regulation,
to say that the FAA has no authority to rely on existing
regulations to address the careless and reckless operation of a
small UAS as a model aircraft would appear to go too far. However,
by dragging its feet in developing specific regulations, the FAA
opened the door to a determination that it lacks the authority to
act at all. The NTSB may well agree with Judge Geraghty that the
distinction between small UAS flown for recreational purposes and
small UAS flown for business purposes cannot be sustained in the
absence of specific regulations. The sole question before the Board
then becomes whether agency publication of an advisory circular
encouraging the compliance with voluntary standards precludes the
FAA from characterizing such contrivances as aircraft subject to
general oversight related to the safety of the NAS. Left unanswered
is the question of whether the FAA can constrain the operation of
larger UAS that do not qualify as model aircraft in the absence of
a new regulatory scheme.
FAA's Regulatory Plan
On December 29, 2013, the FAA announced the six test sites that
will be used to study how best to safely and efficiently integrate
UAS into the NAS. The test sites were chosen for geographic,
climatic, and airspace diversity, as well as the site
operators' proposals to provide research in particular areas of
concern. The test sites will focus on different types of research
ranging from aircraft safety standards, to human factors, to the
impact of congestion in integration. Research at the test sites,
which will not be funded by the FAA, is expected to continue
through at least 2017.
On November 7, 2013, about two months prior to the test site
announcement, the FAA published a series of documents in an effort
to comply with the FAA Modernization and Reform Act of
20126 (the "Act"), in which Congress mandated
that the Department of Transportation ("DOT") develop a
plan to integrate civil UAS operations with the current traditional
aircraft regulatory scheme by September 30, 2015. While the
released documents are short on specific regulatory requirements
necessary for successful integration, they should be useful in
plotting a course forward.
The three documents released by DOT and FAA are:
- U.S. Department of Transportation's Unmanned Aircraft Systems (UAS) Comprehensive Plan (the "Comprehensive Plan");
- First Edition of the Integration of Civil Unmanned Aircraft Systems (UAS) in the National Airspace System (NAS) Roadmap (the "Roadmap"); and
- Final Privacy Requirements for the Unmanned Aircraft System ("UAS") Test Site Program (the "Final Privacy Requirements").
The first two documents should be read together as they set
forth the government's strategic vision for integration of UAS
of all sizes into the NAS. The Comprehensive Plan serves as the
broad vision shared by all federal government users of the
airspace, while the Roadmap provides the strategic goals and
measureable metrics by which the FAA will ensure that this vision
is
realized.
The Comprehensive Plan outlines the broad approach that will be
taken by a variety of agencies, including the Departments of
Transportation, Defense, Commerce, and Homeland Security; the
National Aeronautics and Space Administration; and the FAA, to
safely and successfully integrate UAS into the NAS. The most
important information in the Comprehensive Plan is that, while
purporting to meet the Congressional objective of full integration
by 2015 for small UAS and public UAS, the FAA does not foresee
routine civil operations of UAS in the NAS until 2020, the same
year that automatic dependent surveillance-broadcast out
("ADS-B Out") becomes required equipment for all aircraft
operating in the NAS.
As implied by the name, the Roadmap lays out the FAA's
assessment of the steps required to fully integrate UAS into the
NAS. The Roadmap takes a three-phase approach, which the FAA terms
accommodation, integration, and evolution. The accommodation phase
envisioned by the FAA is a continuance of the model currently being
used by the FAA for public UAS, where UAS operations would be
permitted on a limited basis in reserved airspace. During the
accommodation phase, the FAA will work with industry groups,
standards development organizations, and other regulatory bodies to
develop standards and technology necessary to integrate UAS into
airspace shared with traditional aircraft. At the same time, the
FAA will be developing UAS training standards for aircrews,
mechanics, and air traffic controllers. The FAA expects integration
to occur within the next 10 years. In the integration phase, the
FAA plans to take the experience gleaned from the accommodation
phase and expand UAS operations into the full NAS. Finally, in the
evolution phase, the FAA plans to focus on long-term refinement of
regulations and development of full type certification for UAS with
the goal of seamless operations of UAS with traditional manned
aircraft.
UAS Privacy Regulation
With the rise of UAS technology, many individuals and advocacy
groups have raised alarms regarding privacy intrusion by UAS. These
privacy concerns are largely directed toward public UAS operations,
such as UAS controlled by the military and local police
departments. Fewer concerns have been expressed with regard to
commercial UAS operations. The third document published by the DOT
and FAA is the Final Privacy Requirements, in which the FAA states
that it will rely on individual operators and existing privacy laws
to address privacy concerns. As the Final Privacy Requirements
state, "[t]he FAA's mission is to provide the safest, most
efficient aerospace system in the world and does not include
regulating privacy."
However, the FAA recognizes its obligation to address the
public's privacy concerns with regard to its control over the
UAS test sites. To that end, the Final Privacy Requirements place
the privacy burden squarely on the shoulders of the test site
operators. The test site operators are required to develop privacy
policies for operations in the test site, make the privacy policies
public, and receive and consider public comment on the privacy
policy. Further, the test site operators must conduct annual
reviews of the privacy policy to ensure that it remains current and
effective and must ensure that the policy is applied to all
operations at the test site.
Alternative Approach
While the three documents released by the FAA outline the road
ahead for UAS integration, the documents provide goals and
aspirations but lack specific guidance. The target dates set by the
Comprehensive Plan are fast approaching, and clear regulation will
be required to meet some of those targets. Significant progress is
needed to meet the Comprehensive Plan's goal of beginning small
public and civil UAS operations in the NAS by 2015. Additionally,
the Pirker decision highlights the very real risk that in
the absence of some regulatory structure, the FAA will be limited
to only the most basic regulatory oversight of small UAS in the
NAS.
The FAA has acknowledged that a key element of the small UAS rule
is the development of operating experience (and accompanying data)
that could inform the agency on its longer-term regulatory
initiative, the safe integration of larger drone technology into
the airspace—technology that undoubtedly will require a
regulatory structure to ensure its safe integration. This is a
legitimate goal. However, there are faster ways to achieve this
goal than issuing an entire new set of regulations to govern these
operations of small UAS.
The FAA has several options, depending on the NTSB's ultimate
resolution of the agency's appeal of Pirker. As an
initial matter, the FAA needs to publish a definition of
"model aircraft" that clearly reflects the recreational
nature of the operations. Congress has already developed a
definition that incorporates this concept in the 2012
Act.7 The existence of a statutory definition is
sufficient to permit the FAA to amend 14 C.F.R. 1.1, to include a
definition without notice and comment. Adopting a regulatory
definition would allow the FAA to focus immediately on the small
UAS operations that it is interested in actively
monitoring.
For small UAS used for business purposes, the FAA could simply
modify its policy to more closely align with the historical
distinctions between private and commercial aircraft. Thus, the
distinction would no longer be whether there was a "business
purpose" but whether the operation provided services to
another for "compensation or hire." Safety considerations
of small UAS not used for compensation or hire could be addressed
through the development of best practices or voluntary standards.
Alternatively, the FAA could decide that all small UAS operations,
regardless of the reason for their use, are best governed by
voluntary standards and best practices. Under either approach, the
FAA could set up a voluntary reporting database or use its other
transaction authority to enter into agreements with operators to
gather the data the FAA hopes to acquire by virtue of the
contemplated regulation. Such an approach would permit the
commercial use of this technology and provide valuable information
that could be used to evaluate the appropriate integration of
larger UAS into the NAS much sooner than under the regulatory
approach to which the FAA appears to be committed.
Footnotes
1 Huerta v. Pirker, NTSB Docket CP-217, March 6, 2014.
2 Fed. Aviation Admin., Advisory Circular 91-57, Model Aircraft Operating Standards (June 9, 1981).
3 Fed. Aviation Admin., Notice No. N 8900.227, Unmanned Aircraft Systems (UAS) Operational Approval (July 30, 2013); Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6,689 (Feb. 13, 2007).
4 14 C.F.R. 91.13(a), Careless or reckless operation; Aircraft operations for the purpose of air navigation says that "[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another."
5 See 14 C.F.R. §400.2 stating, in pertinent part, "[t]he regulations of this chapter do not apply to amateur rockets activities, as defined in 14 C.F.R. 1.1...."
6 FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, 126 Stat. 11 (2012).
7 Pub. Law No. 112-95, §336 (2012).
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