Illegal Transmitters

I’ve been warning people on the Drone Forums that they modify their video transmitters with a risk of violating various FCC rules.  Hobby King has been served with a Notice of Apparent Violation by the FCC for selling video transmitters in the U.S.  A $2.8 Million fine would hurt just about any business, even Hobby King.

Hobby King NAL

Basically the FCC rules require all unlicensed (I.E. Part 15) emitters to be certified as compliant to the current FCC rules.  (“Emitters” includes transmitters, of course, and any device that can radiate RF energy.  This includes your microwave oven, your phone, your TV receiver, countless “therapy” devices, and anything with a microprocessor inside).  It can cost up to $20,000 to do the engineering studies on the candidate device.  The testing is performed by third-party labs, not the FCC.

What trips users up is the FCC rules prohibiting modifications by the end-user.  47 CFR 15.203 Antenna Requirements requires that a Part 15 device antenna be permanently attached or integral to the device to obtain certification.  CFR 15.204 External Amplifiers And Antenna Modifications does allow for the manufacture and marketing of after-market antennas, but the modified device must undergo expensive certification testing with the new antenna.

There’s also a plum in CFR 15.204 for the end-user that permits changing the antenna connector, but the device is no longer marketable because it is out of Part 15 compliance.

So, how does the drone pilot get into trouble?  If you bought a 2- or 3-Watt video transmitter, can you expect a visit from the FCC?  Legally, yes, but in reality, unless there’s a complaint of interference from your device, the FCC has no reason to bother with you.  They are more likely to go after the distributor or manufacturer of the device (like Hobby King), and part of the settlement will likely include a requirement that the distributor buy back all of the illegal devices they sold.

 

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Just a useless “solution” to a problem.

First, the announcement from the FAA:

FAA Establishes Restrictions on Drone Operations over DOJ and USCG Facilities

At the request of federal security partners, the Federal Aviation Administration (FAA) has been using its existing authority under Title 14 of the Code of Federal Regulations (14 CFR)§ 99.7 – “Special Security Instructions” – to address concerns about drone operations over national security sensitive facilities by establishing temporary Unmanned Aircraft System (UAS) specific flight restrictions.

Information on the FAA Notice to Airmen (NOTAM), which defines these restrictions, and all of the currently covered locations, can be found on our website. To ensure the public is aware of these restricted locations, this FAA website also provides an interactive map, downloadable geospatial data, and other important details. A link to these restrictions is also included in the FAA’s B4UFLY mobile app.

Additional, broader information regarding flying drones in the National Airspace System, including frequently asked questions, is available on the FAA’s UAS website.

In cooperation with Department of Justice (DOJ) and Department of Homeland Security (DHS), the FAA is establishing additional restrictions on drone flights up to 400 feet within the lateral boundaries of the following federal facilities:

  • United States Penitentiary (USP) Tucson near Tucson, AZ
  • USP Atwater near Atwater, CA
  • USP Victorville near Victorville, CA
  • USP Florence High near Florence, CO
  • USP Florence ADMAX near Florence, CO
  • USP Coleman I near Sumterville, FL
  • USP Coleman II near Sumterville, FL
  • USP Marion near Marion, IL
  • USP Terre Haute near Terre Haute, IN
  • USP Big Sandy near Inez, KY
  • USP McCreary near Pine Knot, KY
  • USP Pollock near Pollock, LA
  • USP Yazoo City near Yazoo City, MS
  • USP Allenwood near Allenwood, PA
  • USP Canaan near Waymart, PA
  • USP Lewisburg near Lewisburg, PA
  • USP Beaumont near Beaumont, TX
  • USP Lee near Pennington Gap, VA
  • USP Hazelton near Bruceton Mills, WV
  • United States Coast Guard (USCG) Baltimore Yard, MD
  • USCG Base Boston, MA
  • USCG Base Alameda, CA
  • USCG Base Los Angeles/Long Beach (LALB), CA
  • USCG Base Elizabeth City, NC
  • USCG Base Kodiak, AK
  • USCG Base Miami, FL
  • USCG Base Portsmouth, VA
  • USCG Base Seattle, WA
  • USCG Operations System Center (OSC) near Martinsburg, WV

These changes, which have been highlighted by FAA NOTAM FDC 8/8653, are pending until they become effective on June 20. Note that there are only a few exceptions that permit drone flights within these restrictions, and they must be coordinated with the individual facility and/or the FAA.

So, why do I call this a “useless solution”?

Well, look at the problem this “solution” addresses.

There are headlines almost weekly of someone using a drone to drop contraband into prisons.  Unless I am mistaken, it’s already illegal to transport contraband into a prison, regardless of the method used, so what the hell good is a new rule going to do?

And the USCG bases?  Show me a Coast Guard base that doesn’t have a heliport or even runways for fixed-wing aircraft!  Most of those bases in this new rule are already less than, and in some cases adjacent to airports in Class-B airspace.  In other words, it’s already illegal to fly your drone there.

USCG-480

 So, why would anyone with an ounce of common-sense think that a new rule is needed?  What is the Coast Guard afraid of?

This new rule is nothing more than pandering to someones drone hysteria.

FAA is getting ready for SUAS recurrent testing.

The FAA released an update to the Airman Certification Standards for SUAS certifications.  (The sample test questions from the FAA have not changed from the June 12, 2017 publication.)

(Here’s a link to the questions with a CFI’s answers.)

What’s changed?

The 2018 ACS update (ACS-10A) indicates that the recurrent exam will be different from the initial certification exam.  Still 60 questions, still 1.5 hours to take the exam and still at a testing center.  Yes, the test center fee an expense that I consider unnecessary, but it’s still the system.  (That may change when Section 336 is repealed).

Recurrent Knowledge Test Description

(From the ACS):
The recurrent knowledge test is an important part of ensuring that airmen who hold a remote pilot certificate with sUAS rating can operate safety in the National Airspace System (NAS). Recurrent testing is required for Airmen who do not hold a pilot certificate that was issued under 14 CFR part 61. The recurrent test is also required for airmen who do hold a pilot certificate that was issued under 14 CFR part 61, but do not have a current Flight Review as per 14 CFR part 61, section, 61.56.

What I read here is that of you are a Part 61 pilot with a current BFR, your sUAS Certificate is also current.  No retesting is required.

If you are not a Part 61 certificate holder, then you will take the recurrent certification test.  It appears in reading the ACS that there will be more emphasis on Airspace Classification and Airport Operations. Interestingly, I don’t see anything in the ACS about weather.

 

“DJI Phantom Blamed for Helicopter Crash”

You’ve read the news reports.

“Local and federal authorities are investigating a helicopter crash on Daniel Island, Charleston, South Carolina that reportedly was caused by a drone last Wednesday afternoon.”

“The Federal Aviation Administration confirmed Thursday that a Robinson R22 helicopter struck a tree and crash landed near the southern tip of the island around 2 p.m.”

R22-collision

There’s a serious problem with this news report. I am bothered most by the statement: “caused by a drone“. First, there’s no evidence that there was a drone and not a piece of trash blown up by the rotorwash from the helicopter. Second, panic is no excuse for the instructor pilot not being in control of the aircraft.

If the helicopter pilot said a missile flew by the aircraft, would you title the article “Missile Blamed for Helicopter Crash” ????

Pilots make evasive maneuvers for a multitude of reasons every day. I’ve seen lots of reports of traffic conflicts, wildlife on the runway, and most amazingly a turtle on the runway that caused a crash. Almost all of these become non-incidents. Occasionally the evasive maneuver results in a crash. In these cases the pilot is sometimes held accountable by the FAA for the resulting accident, at the very least violating §91.13 Careless or reckless operation. Panic is not an option.

But, if the conflict was POSSIBLY a drone, STOP THE PRESSES!

It’s also quite possible that the drone operator (assuming that it was a drone) was flying perfectly legally in an open field at low altitudes when the helicopter arrives to perform practice hovering maneuvers., also perfectly legal.  The FAA rules do say that the drone must give way to the manned aircraft. If there was a drone involved, where is the evidence that the drone was not moving away from the helicopter giving right-of-way as required when the helicopter pilot panicked and caused an accident?

Last year, I was confident that the next shoe will drop on hobby pilots

It took a it longer than I thought it would, but Congress is getting some push from airline and helicopter associations to drop PUBLIC LAW 112–95 SEC. 336. SPECIAL RULE FOR MODEL AIRCRAFT.  Then the FAA would be free to make and enforce new rules for model aircraft.  The video on YouTube of the drone over a 737 landing at Las Vegas may be the final straw.

So, real soon after that, the FAA will, I predict, make some slight- very slight modifications to Part 107 rules to make them apply to hobby operators as well as commercial operators.  (Note that nowhere in Part 107 rules will you find the word “commercial”).  My guess is that hobby operators will be required to pass a test, probably online or with a volunteer examiner (like at a model aircraft club), and apply for a Pilot Certificate.

The FAA likes certificates- they certificate everything.  A pilot’s worst nightmare is the letter from the FAA notifying you to a pending “Certificate Action”.  In the case of a regulatory action (whether it’s the FAA, FCC, EPA or any other regulatory office), you are presumed guilty and must prove your innocence.  Do nothing and you will receive a “notice of the civil penalty” and if your offence is especially egregious, a notice of certificate action.  You can see ow the FAA handles these things here.

 

83 ft. is B.S.

“83 ft” is an erroneous reading of Causby v U.S. Army Air Corps.  (The Air Force wasn’t created until September, 1947).  US v. Causby, 328 US 256, 264 (1946) holds that a landowner owns as much of the airspace above his or her property to which he or she can reasonably use, and any invasion of that airspace is a trespass subject to damages.  This is also known as the “enveloping atmosphere” rule.  Likewise, that airspace above the “immediate reaches above the land” is part of the public domain, not subject to trespass.   The result was a newly created doctrine articulated to protect landowner rights while giving aircraft the right to fly over private property:

From Causby:

“If the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run. . . . The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.”

The Causby case was a 5th amendment case of taking private property. The finding of the Causby case was that the farmer’s property was “taken” by the government (US Army and Navy) by low flying aircraft in violation of the farmer’s fifth-amendment rights. The “83 ft” was simply an observation by one of the justices and not a finding or legal precedent and not in the scope of the original case.

No federal court has adjudicated airspace ownership.  (If there has been one that escaped my search, please provide the citation).

Causby Held:
1. A servitude has been imposed upon the land for which respondents are entitled to compensation under the Fifth Amendment. Pp. 328 U. S. 260-267.
(a) The common law doctrine that ownership of land extends to the periphery of the universe has no place in the modern world. Pp. 328 U. S. 260-261.
(b) The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain, as declared by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938. Pp. 328 U. S. 260-261, 328 U. S. 266.
(c) Flights below that altitude are not within the navigable air space which Congress placed within the public domain, even though they are within the path of glide approved by the Civil Aeronautics Authority. Pp. 328 U. S. 263-264.
Flights below that altitude [The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain] are not within the navigable air space which Congress placed within the public domain

 

Aviation Easements

Some people say that they “own the easement” above their property.  This is, again, a badly misunderstood subject.
An avigation easement is a property right acquired from a landowner which protects the use of airspace above a specified height, and imposes limitations on use of the land subject to the easement.

RHV approach

For example, notice the shopping center adjacent to the airport. The owner of the shopping center has an avigation easement that prevents any further development or use of the property. They cannot build up nor can they put a new building in the parking lot. The value of the lost revenue is the basis for the cost of the easement from the FAA and is negotiated at the end of the easement term. Similar to an eminent domain taking, a property owner cannot refuse an avigation easement.
Private avigation easements are exceedingly rare, but they do exist. Mostly in remote locations where an airport abuts private property with tall trees. The avigation easement allows the airport operators to remove or top the trees that could interfere with the use of the airport.
For more information, see: www.irwaonline.org

 

 

 

 

Registration- Hobbyists have won the battle, but will lose the war.

A party atmosphere seems to be going on in the hobbyist community. It’s about to be busted.

So, the FAA has set up a process to de-register your drone and to get your $5 back. Hold on. Don’t be in such a rush to get your precious lucre back from the “evil” FAA. Personal drone registration will happen. It’s just a matter of time.  The agency has said it was “in the process of considering [its] options and response to the decision.” What are the options?

Let’s first look at the problem with the registration rule. Section 336 of the FMRA (FAA Modernization and Reform Act of 2012) was the law that the court used to invalidate the new FAA rule: 14 CFR Part 48, SUAS Registration. Part 48 is a new rule. Had the FAA simply modified Part 47, the existing aircraft registration rule, then the court decision could have gone the other way.

So here’s my prediction- Section 336 will be modified or entirely repealed in the next FAA Authorization bill from Congress due out later this year. When this happens, look for training requirements and certification of hobby pilots as well as registration of their aircraft.

14CFR Part 107, is a new rule that establishes a new category of aircraft (Small UAS) and a new pilot certification (Remote Pilot Certificate With a Small UAS Rating). With a Part 107 pilot certificate, a sUAS pilot may fly for compensation (I.E. “commercial” use). But nowhere, absolutely nowhere in Part 107 rules will you find the word “commercial”.

I think this “omission” was intentional. Except for the Section 336 prohibition, the rules in Part 107 could very easily apply to hobby flight. When Section 336 is altered or repealed, all the FAA needs to do is create yet another pilot rating: “Remote Pilot Certificate With a Recreational Rating”. In short order, hobby pilots will be taking a written exam to obtain the recreational UAS certificate.

Maybe this will also be the time that Brendan Schulman’s (DJI) idea of a micro-UAS class will be taken up by the FAA.

I am already preparing my response to the forthcoming NPRM to also create another new Pilot rating: “Remote Pilot Certificate- Instructor”, and authorize the instructor-rated pilot to administer the written exam. This way a local club with an instructor can administer the exam and issue temporary pilot certificates at a minimal cost. The process would not be unlike the Amateur Radio Volunteer Examiner. The VE can teach ham radio classes and administer the written exam. (The VE can’t issue a station license, so the new ham radio operator has to wait for their license from the FCC to arrive in the mail).

Why am I so confident that this will be the next shoe to drop on hobby pilots?  Just look at all of the reported drone “sightings”.  You know the ones, a pilot is busy landing an aircraft at 175 knots sees a dinner-plate size object a mile away and declares “It’s a drone, we’re all gonna’ die”.  The political pressure is there to “do something”.  And repeal of Section 336 will be easy and politically expedient.