Category Archives: FAA

The Micro UAS Operations Amendment to the Aviation Reauthorization Act of 2016

An amendment to H.R 4441, also known as the Aviation Innovation, Reform, and Reauthorization (AIRR) Act of 2016, is a common sense step in the right direction.

U.S. Rep. Rodney Davis (R-Ill.) today [2/12/2016] will offer an amendment to H.R. 4441, the Aviation Innovation, Reform, and Reauthorization Act of 2016 (AIRR Act), that would benefit small Unmanned Aircraft Systems (UAS), or drone, manufacturers like Horizon Hobby in Champaign, IL. The amendment would create a new exemption for small UAS from regulation under the Federal Aviation Administration (FAA). Davis will offer this amendment, along with U.S. Rep. Cheri Bustos (D-Ill.), at today’s House Transportation and Infrastructure Committee markup of H.R. 4441, a bill to reform and reauthorize the FAA.

“U.S. policy regarding drones has not kept up with technology and lags behind that of other countries,” said Davis. “This commonsense amendment will remove bureaucratic red tape and allow for the responsible use of small drones. This new classification will spur innovation and help small manufacturers like Horizon Hobby, which specializes in manufacturing drones for agriculture use, expand and create jobs.”

Currently, several countries including Canada, Mexico, and Australia have exemptions for small UAS and Europe has proposed a similar classification. This amendment creates a new classification that would exempt micro UAS weighing up to 4.4 pounds from regulation under the FAA but would still require the UAS to be operated within line of sight, less than 400 feet above the ground, and more than five miles from any airport.

(Source: http://rodneydavis.house.gov/)

Link to the amendment

The Micro UAS was originally proposed by Brendan Schulmann for the UAS america Fund in a petition to the FAA on December 18, 2014. The FAA chose to dismiss that petition as they felt it overlapped with the Part 107 NPRM.

The Section 442 amendment states that any operator of a UAS under 4.4 pounds (2Kg) shall be exempt from obtaining an airman’s certificate, flight test, or age and experience requirements. It also states that the aircraft itself will not be required to obtain airworthiness certification, nor a Certificate Of Authorization to operate commercially or otherwise in the NAS. This is big, really big for operators that want to earn money with their small drones.

4.4 pounds puts operators the very popular DJI Inspire out of luck and they still need to go through the FMRA Section 333 Exemption Process.  But the DJI Phantom series of small drones would be included.

Most of the commercial users of Phantom and similar aircraft would still be restricted to 400 ft AGL, 40 knots (46 MPH) max airspeed, in VLOS, daytime only, and notify ATC if within 5 miles of the center of a charted airport.

We can hope that the amendment goes through as written (it’s already passed the Transportation Committee).  This will mean that anyone can buy a Phantom-sized drone and start selling photos.  I think the FAA will still want the aircraft to be registered

How will Amazon’s Prime Air delivery roll out?

Amazon Prime will roll out in phases.

The FAA will be cautious in permitting Prime Air to make autonomous deliveries, but that doesn’t mean that Amazon won’t soon be taking baby steps.

 This is all speculation on my part. I have no factual evidence that my hypothesis is correct, just a gut feel.

Months ago I theorized that Prime Air would begin as same-day delivery in a few larger cities. This would be by controlled flights from an Amazon distribution hub to field offices where the brown trucks could finish the last mile delivery, or the customer could wait for the package at the field office. Amazon would control the takeoff and landing points, so other than VLOS (Visual Line Of Sight) required by the FAA, they could almost do this today. Just today I hear on the news that Amazon is planning to open some “brick and mortar” bookstores – which baffles the market experts. But if my theory is correct about the initial phase of Prime Air rollout is correct, then opening stores makes perfect sense. The Amazon book stores would be those landing pads for same-day delivery. Here’s how it would work. You place an order for a product and pay (dearly) for same-day delivery. The package is loaded on a drone and dispatched to the Amazon book store nearest the customer. The customer can go to the store to wait for the package, or the store can dispatch a brown van to finish the delivery to your home or office.

Phase two will be direct delivery to selected customers. Supporting this is Amazon’s recent patent application for a drone delivery “secure locker“.  Corporate locations and well-heeled consumers would buy a Prime Air Secure Locker which would be located in a safe location on the customer’s property. This could be the roof of the office or an unused corner of a parking lot. The delivery would then go from the Amazon hub direct to the customer.

Phase three would occur when more technical hurdles are overcome. A customer wanting same day delivery would buy a target provided by Amazon. This target would likely have a GPS tracker that sends its precise location by SMS to Amazon, and IR beacons for precision delivery to the target.

I don’t know how close my predictions are, but it will be interesting to watch it develop over the next few years.

sUAS Registration is Poorly Perceived and Poorly Presented.

The FAA requires the registration of all unmanned aircraft including drones and fixed-wing scale model hobby aircraft. This is not a new law, but it is a new rule in 14 CFR Part 48 – “Registration And Marking Requirements For Small Unmanned Aircraft”. The regulation is following the law set by Congress decades ago: 49 USC § 44102 requires aircraft to be registered prior to operation. All aircraft are required to be registered, but the FAA has ignored model aircraft. Until now.

The FAA is following the law – they are not making it up.

Not registering your model aircraft or drone can result in a fine of up to $27,500?

All the press releases say that not registering your model aircraft or drone can result in a fine of up to $27,500. Where does the $27,500 maximum fine come from?

The FAA has the statutory authorization to assess fines up to $27,500 for each violation. But the operative word is “up to”. This level of fine is only assessed for the most egregious violations. The FAA Quarterly Enforcement report reveals that the highest assessments are against airlines for maintenance or hazmat violations. The law giving the FAA the authority to assess fines says:

49 CFR § 46301 – ‘Civil penalties’ (a)General Penalty.— (1) A person is liable to the United States Government for a civil penalty of not more than $25,000 (or $1,100 if the person is an individual or small business concern) for violating—
28 CFR § 85.3 – ‘Adjustments to penalties’ Federal Civil Penalties Inflation Adjustment Act of 1990 allows the adjusted penalties of of civil penalties for violations occurring on or after September 29, 1999.

Why, then would the FAA use the higher, scarier figure for businesses when model aircraft registration applies only to individuals? The memo should read “Up to $1,210 for individuals”. Maybe they think a scarier number will coerce more compliance.

Model aircraft registration appears to be a knee-jerk response to the FAA database of 951 drone sightings this year. (And that’s all they are – someone thought they saw a drone. The data does not support the sensational news headlines of 951 near disasters). But the number of personal drones expected to be in the air in the near future has raised concerns. Registration of model aircraft using existing law offers the FAA an opportunity to deliver some aviation and airspace knowledge to the user. Most of the buyers of personal drones have no clue that a “Class B” airspace exists, let alone how to know where it is.

Registration is poorly thought out only in that it was not promulgated through a normal NPRM process. The FAA had plenty of time to see the need months before implementing an administrative rule that bypassed the requirements of the Administrative Procedure Act (APA).

Registration is also poorly perceived by those who don’t see the bigger picture.

There are, as expected, at least two lawsuits challenging the legality of the new rule. It is difficult to argue why identifying the aircraft owner in case of a crash is a bad thing. What is so wrong with taking a step to ensuring that people fly responsibly, including taking responsibly if their drone causes a problem?

But one of the lawsuits does have merit because the FAA created a new rule in 14 CFR §48.  Section 336 of Public Law 112-95 [The FMRA (PDF)] specifically prohibits the FAA from making new rules regarding Model Aircraft.

(a) IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft,

Should this lawsuit succeed, I think it would only result in a Order of Abeyance until the FAA proposes the new rule through an NPRM.  In other words, only a temporary pause in the registration of model aircraft.

There was one nugget in the Registration Announcement.

The announcement from the FAA includes this provocative line: “The FAA is developing enhancements that will allow [commercial drones] online registrations by March of 2016.” Is this a hint of the publication of the Part 107 rules that are expected in 2016?

When the other shoe drops, things will be more clear.

400 ft.

How often do the news articles say that “there’s a rule”, or that flying over 400 ft is illegal. Both statements are false, but surprisingly many people believe it.

The 400 ft limit is based on two sources. First is the FAA itself when the agency issued an Advisory Circular, AC 91-57, on june 9, 1981 (and later reissued as AC 91-57a on September 2, 2015). In the AC, the FAA said “Do not fly model aircraft higher than 400 feet above the surface”. But there’s two problems with using this as evidence that 400 ft is a rule. First, an Advisory Circular is not a rule. The FAA has never prosecuted a pilot for not following advice, though it is often cited as a reason for pursuing charges under 14 CFR §91.13 – “Careless or reckless operation”. Second is the first line in the AC: “This advisory circular outlines, and encourages voluntary compliance with, safety standards for model aircraft operators”.

The updated AC 91-57a doesn’t mention altitude, but it does say that a model aircraft operation “is determined with reference to Section 336 of Public Law 112-95 [The FMRA]”.  Section 336 of the FMRA does not define an altitude, but it does say :”… the aircraft is operated in accordance with a community- based set of safety guidelines and within the programming of a nationwide community-based organization”. Why didn’t they just say “AMA“?

400 ft above – what?

The FAA said in the original AC 91-57 “above the surface”, so it’s pretty clear what they mean. They don’t expect you to fly as if you have a terrain following RADAR on your 2-pound drone, but use common sense. If you take off from a hilltop climb to 400 ft AGL then fly over a valley, you are more than 400 ft “above the surface”. The rule for manned aircraft (14 CFR §91.119) says “an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft”. So, considering that AC 91-57 is designed to keep hobby aircraft away from manned aircraft, if you stay within a 2,000 ft radius of your takeoff point, you are unlikely to meet a manned aircraft.

Despite the lack of clear laws on how high we can fly our small UAS, there can still be some pretty serious consequences to the choices we make. The advice is to stay below 400 ft, and it is good advice.

I am not a lawyer and anyone who takes my post as legal advice is a fool.

What is a “Commercial Flight”?

The first scheduled commercial airline flight across the bay from St. Petersburg to Tampa, Florida, took 23 minutes on the morning of 1 January, 1914. Tony Jannus piloted a Benoist flying boat with Abram C. Pheil, the former Mayor of St. Petersburg, as his passenger. This marked the dawn of regular passenger air travel.

There are dozens of opinions about what constitutes a commercial flight, but the only one that is important is what the FAA says is a commercial flight. And even that can be a gray area. The FAA has no specific rule that defines “Commercial Flight”, but 14CFR §61.133 – “Commercial pilot privileges and limitations” is the closest thing you will find to a definition: “A person who holds a commercial pilot certificate may act as pilot in command of an aircraft carrying persons or property for compensation or hire.” (Yes, I paraphrase).

Carrying persons leaves out our small UAS aircraft. Carrying property probably doesn’t concern us either unless you fly for Amazon or Google. It’s obvious that if someone pays you to fly to take real estate photographs, for example, then you have been hired. Which leaves “for compensation”. Compensation is the most vague term in the rules, and it’s not defined. So is generally up to the enforcing official to define Compensation. According to the FAA if anyone materially benefits from the flight, anytime, it is a commercial operation. Even posting a hobby flight video on YouTube was getting warning letters from one zealous FAA inspector because Google would attach advertising to the video and could earn money from it. Fortunately the head of the FAA enforcement department saw the stupidity of that and issued a Policy Notice (PDF) that told the field inspectors to lay off.

Profit or lack of it has no bearing on whether the flight is commercial or not. If you take photos or video from your drone for a charity, then good for you. But if the charity uses one of those photos in promotional material or an ad, it’s a commercial flight.

 

Part 107 Rules (Part one)

Or, just wait for the other shoe to drop.

First, let’s go back a few decades, OK a lot of decades. WW-I pilots were coming home to the US and the era of Barnstorming began. For a dollar or two the pilot would take you up for a few minutes of flight in his surplus airplane. For five dollars he would teach you to fly. Before long there were a bunch of poorly trained and poorly maintained airplanes taking poorly informed people up for rides. Too often, these rides ended in a fatal crash.

Congress reacted by creating the Civil Aviation Authority and passed laws to promote aviation commerce and safety. One of those laws requires that any aircraft flown in commerce be piloted by a certificated operator and that the aircraft be maintained by certificated mechanic. The logic is that when a paying passenger gets into an airplane, they don’t know the pilot nor how well maintained the aircraft is. Certification of aircraft and airmen is how the government assures that when you buy an airline ticket, the pilot and mechanic’s meet at least the minimum standards of education and experience.

That’s how things have worked for the past Century. To fly for compensation you needed a commercial pilot certificate. Today, unmanned aircraft are entering the commercial space. The unmanned aircraft got cheaper and easier to fly and now there are thousands of them flying in commercial airspace. (And many thousands more are flown by hobbyists). When Congress passed the FAA Modernization and Reform Act of 2012 (FMRA), it directed the FAA to integrate unmanned aircraft into the National Airspace System. Section 333 of the FMRA gave the Secretary of Transportation the authority to grant exemptions to existing FAA rules for certificated pilots to fly small unmanned aircraft systems (sUAS) in commerce.

The FAA recognized that learning to fly a manned aircraft to operate an unmanned sUAS was overkill. In order to comply with the FMRA and their original mission of promoting aviation commerce, the FAA proposed the Part 107 rules. The Part 107 rules introduces a new class of Airman’s Certificate that only requires a written examination. No flight time and you don’t need to learn to land a Cessna. (Though, getting a few hours in a Cessna with an instructor will greatly add to your aeronautical knowledge).

No one has seen the final rule as it hasn’t been published yet, but there are indications that it could come in early to mid-2016 with an effective date 30- to 90-days later. Shortly after the Part 107 rules are effective, the other shoe will drop. (I’ll explain in another post what “the other shoe” is).

There is no Unregulated Airspace in the USA

Many people, especially those who should know better, are confusing unregulated with uncontrolled airspace. There is no unregulated airspace in the USA but controlled airspace generally begins at 500 ft because ATC radar is unreliable at low altitudes. Generally. The FAA regulates airspace from the ground to 60,000 ft.  When anything leaves the ground the flight is governed by FAA rules exclusively. Controlled airspace is that airspace where ATC can provide radar coverage and separation of participating aircraft. That is aircraft on an IFR flight plan and VFR aircraft with a transponder requesting ATC services.

The answer to the question of how much airspace do you own is not answered in the 1946 case U.S. vs. Causby.  The decision held only that “A servitude has been imposed upon the land for which respondents are entitled to compensation under the Fifth Amendment”.  The case was remanded back to the Court of Claims because “the court’s findings of fact contain no precise description of the nature or duration of the easement taken”.

How much airspace is owned by the landowner and where does “navigable airspace” begin were not decided by Causby. That was not the case before the Supreme Court. The case was simply one of a taking of property in violation of the fifth amendment.

Opinions of the Supreme court are longer explanations by the Justices’ of the reasoning behind a particular action. In the opinion the court said that “The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land”. One justice’s opinion also used the description of flights as low as 83 ft merely as an example. But these were the rationale behind their decision, and not included in their holdings.  [1]

Navigable airspace is a legally undefined term. In my research I have found a few SCOTUS decisions that reference navigable airspace in their opinions, but none have defined it.  Medical Ambulance Helicopters and  Firefighting aircraft frequently fly below 500ft.  Small UAS aircraft, including personal drones, are advised by the FAA to fly below 400 ft.  These aircraft  are navigating in the National Airspace System, so that would make airspace below 500 ft navigable airspace even though it is in uncontrolled airspace.

An overflight of 100 ft or even 50 ft over your typical home is probably not trespass. If a drone stops to watch a teenage girl sunbathing nude in the backyard, then the drone operator is likely violating trespass laws regardless of the altitude. We don’t need a definition of how much airspace does the homeowner own because there are already plenty of state and local laws that cover trespass – we don’t need any more rules. These laws are technology agnostic, meaning that it doesn’t matter if you’re using a drone, a kite or a camera on a pole. Trespass is trespass.

nude_sunbather
There is a nude sunbather in this Photo.

Shooting down a drone would likely violate weapon discharge ordinances and would also be a violation of 18 U.S. Code § 32 – ‘Destruction of aircraft or aircraft facilities’. Shooting at a drone 200ft altitude is not protecting anything. Period.

Unless the drone shoots first.

 

[1] I am not a lawyer. Nothing I write or say should be taken as legal advice. Anyone who does is a fool. If a lawyer does read my posts and can correct my opinions, I would respect and enjoy the feedback. I am easily trained.