Plane-ly Spoken Blog

Plane-ly Spoken Blog

Commentary on Regulation & Litigation Impacting the Aviation Industry

UAS: Dear U.S. Senators . . . . “Wake Up!!”

Posted in UAS

On November 25, 2014, five U.S. Senators wrote to the FAA Administrator, asking a series of questions about FAA action relative to UAS.  In order to save time for the FAA, so they don’t have to divert resources to answering your questions, Plane-ly Spoken will answer them.  The reason we can do this is because all of the answers are already a matter of public record. 

For starters, we note that your letter seems to have been written by a group of people who haven’t been paying attention to what’s going on and are more interested in issuing  press releases than they are about helping the FAA achieve the goal of safely integrating UAS into our nation’s airspace.  Now, on to the Questions.

Question 1 – ” an update on the FAA”s timeline for releasing draft regulations for the commercial use of UAS”

Answer – The FAA has already sent their draft NPRM for small UAS to OIRA for review and can’t publish it until that review is completed.  Plane-ly Spoken suggests you direct your inquiry to OIRA.  If you don’t know what OIRA stands for or what the process is, have a staffer check it out.

Question 2 – “a response to the concerns that the application process for COAs and Section 333 exemptions are lengthy and arduous”

Answer – The process is neither lengthy, nor arduous. The timeline the FAA is currently working against is 120 days from filing to decision.  Part of the problem is that a lot of the petitions look like they were drafted by twelve years olds, requiring follow-up inquires by the FAA UAS Integration Office. 

The UAS Practice Group at MLA (the publisher of Plane-ly Spoken) has prepared or filed almost a dozen exemption petitions and has certainly never found the process to be anything other than straightforward.

Question 3 – “your plan for handling further applications to ensure expediency going forward”

Answer – The problem with the question is that it assumes the process is lengthy and arduous, which it’s not.  We agree that the fact that it’s not an overnight approval process can be frustrating.  But, look Senators, virtually every day we read about a near midair collision between an aircraft and a UAS.  We understand that the lobbyists and the clients they represent who got you to sign onto this letter want action now.  But I think we can all agree that the action we don’t want is an accident investigation.

We suggest everyone slow down, take a deep breath and let the FAA do its thing.

Question 4 – “what steps you will take to make it easier for the test sites to work with private industry on commercial applications for UAS and encourage the test sites full potential”

Answer – C’mon guys!  You know the answer to this one.  You never gave the FAA or the test sites any funding for the test site operation.  So do what you do best . . . . spend a little money and fund the test sites.  Without money, the test sites will never live up to their potential.

You need not thank us for this quick response.

UAS: NOW is the Time to Educate Policymakers

Posted in UAS

We all share the frustration that policymaking impedes innovation – that the private sector moves too quickly for the public sector to keep up.  That is certainly true in the UAS arena.  The best solution for this problem is for innovators to support policymakers.  The private sector has a duty to educate government about technological advances that affect policymaking. 

So for all of us frustrated with the pace of the rulemaking surrounding the commercial use of UAS, now is the time to get involved.  The government needs to hear from you. 

We wrote almost one month ago about the exciting news that the FAA sent its Notice of Proposed Rulemaking (NPRM) on Small UAS to the White House for review.  The Office of Information and Regulatory Affairs (OIRA) within the White House performs this review.  This an extremely important step in the rulemaking process, and provides stakeholders with a key opportunity to provide input.   

We just returned from a meeting with the White House today, where we discussed our views on the forthcoming NPRM. 

We have received many questions from folks asking about this review process, what it means, and why they should participate.  Here’s our answer: 

Q.  What is OIRA and why does their review matter? 

A. Under Executive Order 12866, before any significant regulatory action takes effect, it first must go through a review process at OIRA at the White House.  OIRA is located within the Office of Management and Budget, which is within the Executive Office of the President.  It is commonly said that OIRA is the most important agency in Washington, DC that nobody has heard of: OIRA reviews draft regulations before they are implemented and conducts cost/benefit analyses to determine whether the benefits of a rule would justify the costs.  OIRA is currently reviewing the FAA’s NPRM on Small UAS (sUAS).  After its review, OIRA will send comments back to FAA before FAA issues the NPRM.   

Q.  How long does OIRA’s review of the NPRM take? 

A.  The period for OIRA review is limited by Executive Order 12866 to 90 days.  Under the Executive Order, the review period may be extended indefinitely by the head of the rulemaking agency; alternatively, the OMB Director may extend the review period on a one-time basis for no more than 30 days.  According to OIRA, the average review period is 53 days.  OIRA received the FAA’s sUAS rule for review on October 25, 2014 – so the review could take three months, or more or less, from that date. 

Q.  Will OIRA listen to what I think about the forthcoming rulemaking on small UAS?

A. As part of its review process, any member of the public—including UAS manufacturers, operators, and users—can request a meeting with the agency to discuss the proposed rule, what it should contain, and how the rule will impact them. The meetings are conducted by the OIRA Administrator or his designees, and a log of all meetings is publicly available.

Q.  Will I be able to see the draft rule if I meet with OIRA?

A.  No, but that does not mean that the meeting isn’t important.  The meeting is a half hour listening session and represents an opportunity to make stakeholder voices heard.  Keep in mind that OIRA will make its views known to the FAA once it has finished its review.  It is extremely helpful to have the White House advocating for your view to the FAA, in addition to advocating directly to the FAA.  While the FAA has track record of taking into account public comments in context of issuance of final rule, the reality is that the bulk of what we will see when the FAA issues the NPRM will resemble the final rule: the FAA will tinker around the edges, but the framework will remain.  Now is the time to make your voices heard. 

Q.  Will a meeting with OIRA be helpful to the policymaking process?   

A. A meeting with OIRA provides a golden opportunity for stakeholders to make their voices heard on key UAS policy issues.  Companies that want to provide input on issues such as certification of pilots and visual observers, registration of UAS, approval of operations, federal preemption of UAS policy issues, and operational limits for UAS now have the chance to provide their ideas directly to the White House.  It is also helpful for stakeholders to reinforce the importance of expediency in moving the rulemaking forward. 

With your participation in the policymaking process, champions in government will be able to move forward more quickly.  Now is the time for our community to get organized, get involved, and be heard. 

Note: Planely Spoken would note that Lisa Ellman, currently Co-Chair of MLA’s UAS practice, formerly worked for the White House’s Office of Information and Regulatory Affairs.  

UAS: Breaking News!! NTSB Reverses Pirker Decision

Posted in UAS

Plane-ly Spoken has long predicted that the Administrative Law Judge’s Opinion dismissing the FAA’s civil penalty action against Raphael Pirker would be reversed on appeal.   Today, that prediction came true.  Bad news for Mr. Pirker!  Good news for air safety!

For those of you new to Plane-ly Spoken, the FAA had fined Mr. Pirker $10,000 for carelessly and recklessly flying his UAS while filming a promotional video for a university.  The ALJ dismissed the fine, ruling that there were no enforceable regulations governing either UASs or model aircraft, and as a result, the FAA had no legal authority to pursue the matter.  Needless to say, this ruling threw the FAA’s efforts to regulate commercial UAS operations into complete disarray.  The FAA promptly appealed the decision to the full National Transportation Safety Board.

In its decision reversing the ALJ, the NTSB looked back to the original language of the Federal Aviation Act of 1958, and found that the definition of the word “aircraft” is intentionally broad, encompassing all devices used for flight, including UAS and model aircraft.  To the extent the FAA has chosen in the past to refrain from bringing charges against operators of model aircraft, the NTSB found that this was a policy choice for the Administrator, and did not represent a change to the broad definition of “aircraft.”  As a result, the FAA was free to alter that policy choice if the safety of the national airspace required it to do so.

Once the NTSB ruled that UASs and “model aircraft” were, in fact, aircraft, the Board turned to  whether 14 CFR 91.13, which prohibits the careless or reckless operation of an aircraft, applied to Mr. Pirker’s flight.  The Board found that the FAA’s extension of this section to UASs and model aircraft was reasonable, providing the legal basis for the $10,000 fine.

The next step is, upon remand to the ALJ, a full factual hearing to determine whether Mr. Pirker’s operation of his aircraft was “in a careless and reckless manner so as to endanger the life or property of another,”  contrary to  § 91.13(a).

While there are many who were hoping that the NTSB would affirm the ALJ’s decision and open the skies to commercial UAS with the stroke of a pen, that result would not have been in anyone’s long term interests.  Once the inevitable accident had occurred, the Congressional finger pointing and second guessing would have caused the rulemaking process to grind to a halt, and, no doubt, all UASs would have been grounded until the situation could be dealt with. 

With the Pirker matter reversed, hopefully everyone can turn their attention back to the real issue, namely the issuance of the Notice of Proposed Rulemaking for small UAS before the end of the year.

UAS: Canada Further Simplifies Approval Process

Posted in UAS

Major changes are coming for UAS operations in Canada later this month.  Canada has a well-developed system of commercial UAS operations that focuses primarily on authorization for a specific mission or set of missions.  Currently, in order to obtain the necessary Special Flight Operations Certificate (SFOC), applicants are required to meet the requirements set out in the applicable 60 page Transport Canada Staff Instruction and prepare a detailed submission and supporting documentation.  While a broader authority to operate in Canada is a theoretical possibility, it is difficult to get, and requires the operator to establish a history of safe operations through use of the mission-by-mission SFOC process.

While this system worked well initially, it has been a victim of its own success.  The number of SFOC requests increased over 500% from 2011 to 2013, and SFOC requests this year have dwarfed that level.  As a result, there have been reports of substantial delays at some of the regional Transport Canada offices tasked with reviewing the requests.

Faced with this unsustainable trajectory, Canada has decided to overhaul its UAS rules.  While details are not yet available, the indications are that Canada will create new rules that apply to very light weight UAVs.  Initial reports are that for UAVs under 2 kg (approximately 4.4 pounds), there will be little, if any, direct regulations.  In addition, Transport Canada has announced that it will be somewhat easier to obtain authorization for commercial work involving UAVs weighing between 2 kg and 25 kg.  It appears, however, that a full SFOC will still be needed for UAVs weighing over that amount.

The announcement of these updated rules is part of a new “carrot and stick” approach by Transport Canada.  On the “carrot” side, they are relaxing restrictions on operations and have launched a new educational program to improve safety.  On the “stick” side, they are emphasizing that any failure to follow the rules will not be tolerated and will subject violators to substantial penalties:

  • If a UAV is operated without a Special Flight Operations Certificate and should be, Transport Canada can issue a fine of up to $5,000 for an individual and $25,000 for a company
  •  If an operator does not follow the requirements of their Special Flight Operations Certificate, Transport Canada can issue fines of up to $3,000 for an individual and $15,000 for a business.

It will be interesting to see whether the FAA’s Notice of Proposed Rulemaking for small UAS operations will adopt this growing trend, or will follow a more traditional one-size-fits-all approach. Plane-ly Spoken hopes for the former, but will not be surprised if it is the latter. 

Lisa Ellman TEDx Talk: “Drone Fever” – November 16, 2014

Posted in UAS

Former White House policymaker and co-chair of McKenna Long’s UAS practice shares insight on government policy, business innovation and the need for “polivation.”

Click here to register to attend in person or go online to TEDxBeaconStreet.com on Sunday, November 16th at 1:15 p.m. EST to watch the online livestream of Lisa Ellman’s talk entitled, “Drone Fever? Try a Little Polivation.”

 Add to Calendar

In this ultra-timely presentation, McKenna Long counsel Lisa Ellman, former Obama administration insider and pioneering Unmanned Aircraft Systems (UAS) policy advisor, will describe how government policy and entrepreneurial innovation can work best together. She will explain the current lively debate surrounding “drone fever”—about the domestic use of drones for everything from package delivery to crop dusting to filmmaking and business security. Lisa believes the key to balancing the opportunities and challenges around unmanned aviation systems is a true integration of policy and innovation, which she calls “polivation.” Policymakers must promote innovation, and innovators must work hand in hand with policymakers. Her talk will focus on how U.S. companies can best take advantage of emerging technologies, including drones, in a way that wins the public’s trust and serves its interests.

Lisa Ellman Lisa Ellman has held a variety of positions at top levels of the Executive branch at both the White House and the Department of Justice, where she regularly “made things happen” as a policymaker. Nearly eight years ago, she began working for her former law professor—Barack Obama. In a series of senior appointments, she worked on high-priority matters tied to some of the Obama Administration’s most cutting-edge initiatives. Most recently, she led the Justice Department’s effort to develop policy for governing the use of drones in the United States. As chair of McKenna Long’s UAS practice group, she continues to work on these same issues, using her senior-level federal experience to help bridge the sizable knowledge gap between government policymaking and business innovation.

Click here for Lisa’s full biography.

MLA UAS Practice Group McKenna Long’s UAS practice group is comprised of attorneys and professionals from across the firm and is focused on addressing the multitude of potential legal and other challenges that may arise, such as design and operator certification, operations in U.S. civil airspace, limiting tort liability; insurance and risk management, commercial/contracts, emergency response, privacy, intellectual property, export control, regulatory and enforcement issues, hazardous materials, cybersecurity, and others. McKenna Long has a long history of representing clients who manufacture UAS component parts and design and integrate UAS systems.

Click here to read more about the group.

MH 17/MH 370: A Whole Lot of Nothing!

Posted in MH Flight 17, MH Flight 370

Reuters recently reported that Dutch investigators looking into downing of Malaysia Airlines MH 17, the Boeing 777 aircraft shot down on July 17 over the Ukraine, are finding themselves having to largely rely on publicly available information.  Because the crash occurred over rebel-held territory, investigators have determined the site is too dangerous to visit.

There are also reports of discussions between the Dutch and US intelligence communities aimed at getting satellite and/or radar data which might settle the question of the source of the weapon that downed the aircraft.  The Russians — always a trustworthy source —- say it was a Ukrainian military aircraft.  The United States has stated that it was shot down by Russian–backed rebels using a ground–to–air missile.

Lost in this discussion are the families of the 298 crew and passengers who perished.  Governments care about the source of the instrument of destruction.  Accident investigators care about causation.  At least in this case, we can all agree the aircraft was shot down and, quite frankly, we know very little else.  Meanwhile, on November 10, a “somber” commemoration ceremony took place in Amsterdam, attended by 1600 family and friends of the 298 passengers and crew who perished.

We also note that the greatest aviation mystery since the disappearance of Amelia Earhart continues, as the search for Malaysia Airlines Flight 370 goes on.  Once again, a planeload of passengers and the aircraft disappeared, and a large group of friends and families know virtually nothing about what happened on March 8, except that it’s a big ocean which doesn’t easily yield answers.

 Plane-ly Spoken, like everyone else, waits for answers.

UAS: Tethered v. Untethered

Posted in UAS

Some of the questions we get asked most frequently involve the use of a tether on a UAS.  Is it still a UAS?  Are you bound by any regulations if the UAS is tethered?  Can I get around the commercial UAS ban simply by putting a cable on it?

Up until this summer, an argument could have been made that the FAA was permitting tethered UAS operations.  That argument, however, is no longer valid.

The origins of the UAS tether conundrum can be found in FAA National Policy Statement 8900.207.  That document contained the following definition of an unmanned aircraft:

[A] device used or intended to be used for flight in the air that has no onboard pilot.  This devise (sic) excludes missiles, weapons, or exploding warheads, but includes all classes of airplanes, helicopters, airships, and powered lift aircraft without an onboard pilot.  UA do not include traditional balloons (refer to 14 C.F.R part 101), rockets, tethered aircraft and un-powered gliders.

Thus, you had a statement by the FAA that implied that a UAS with a tether on it was no longer a UAS for purposes of some of the FAA’s regulations.

That National Policy Statement expired on January 22, 2014, and was replaced by National Policy Statement 8900.227, which retained the definition.  National Policy Statement 8900.227 was officially cancelled on July 30, 2014.  It was not, however, superseded by a new National Policy Statement.  The absence of a new National Policy Statement has led many to believe that, despite the clear cancellation date, the information in the document is still valid, and a tethered UAS is not a UAS. 

What seems to have escaped most people’s notice, however, is that a new National Policy Statement was no longer necessary because the material was incorporated directly into FAA Order 8900.1, on June 23, 2014.  See FAA Order 8900.1 Chg. 351.  The current version of the definition of UAS from Order 8900.1 states:

KK.     Unmanned Aircraft (UA).  A device used or intended to be used for flight in the air that has no onboard pilot.  This device excludes missiles, weapons, or exploding warheads, but includes all classes of airplanes, helicopters, airships, and powered-lift aircraft without an onboard pilot.  UAs do not include traditional balloons (refer to CFR part 101), rockets, and unpowered gliders. 

FAA Order 8900.1, 16-1-2-1(KK).  Note that “tethered aircraft” is not mentioned in the definition.  With this new definition, there is now no basis to argue that a tethered UAS is excluded from any of the restrictions placed on all UAS. 

As a result, people should not be confused into thinking that they can fly a UAS commercially to take real estate photos or run inspections so long as they use a tether.  According to inquiries we have made with the UAS Integration Office, a tether can still be proposed as an alternate means of compliance when an operator wants to make his or her safety case as part of a Section 333 Exemption Petition, but specific authorization from the FAA is still required as part of any commercial operation, tethered or untethered.   

UAS: You Have Always had the Right to Remain Silent, Have an Attorney . . .

Posted in UAS

There have been a number of press reports breathlessly announcing that, under a new FAA policy, it is now a crime to fly a UAS at a stadium on game day.  While we hate to let facts get in the way of a good headline, we thought we would point out that it has, in fact, been illegal to fly a UAS at a stadium for more than a decade.

These recent stories were prompted by the issuance of Notice to Airmen (“NOTAM”) No. FDC 4/3621.  This NOTAM states that the area surrounding stadiums hosting major sporting events are “National Defense Airspace.”  Any flight of an aircraft, including unmanned aircraft, within 3 nautical miles of a stadium and at an altitude of less than 3000 feet above-ground-level (“AGL”), is a crime under 49 U.S.C. § 46307, and is punishable by a fine and up to 1 year of imprisonment. 

While this sounds like a significant development, it is nothing more than a clarification of existing law.  NOTAM 4/3621 is a replacement for NOTAM 9/5151, which had the same flight restrictions around stadiums and the same potential criminal penalty.  While it did not use the words “remote control aircraft,” the FAA has been clear that it always considered UASs to be aircraft, and, by default, were included in this restriction.  Moreover, the FAA Modernization and Reform Act of 2012 makes clear that model aircraft and UAS are types of aircraft, further backing up the FAA’s position.  In fact, it should be noted that one of the justifications given by the FAA for their refusal to permit the University of Michigan to fly the game ball into the stadium was the existence of the earlier NOTAM.  As a result, this new NOTAM is nothing more than a clarification of existing law and policy. 

The FAA’s policy is similar to the policy followed in other countries.  For example, just two weeks ago, a man was arrested for flying a UAS at Manchester City Stadium during a soccer match.  The UK Civil Aviation Authority announced they intended to prosecute the man for violating an Air Navigation Order which is similar to the FAA’s NOTAM.

People also seem to be forgetting that local law enforcement has taken a very dim view of UAS flights at sporting events, regardless of what the FAA’s position might have been.  So far this fall, a UAS pilot was detained for flying at the University of Texas Stadium, and another was arrested and charged with reckless endangerment for flying at the US Open.   

While it is unfortunate that people seem to have been unaware of this long-standing flight restriction, the revised NOTAM seems to be having its intended effect.  Hopefully, this latest round of media attention will help to avoid future incidents. 

So, if you want a bird’s eye view of the action, get a seat in the bleachers, and leave your UAS at home.   

FAA: The Navigable Airspace and How High Is Up?

Posted in FAA

A few days ago, an FAA official asked Congress to give the FAA authority to regulate, not only the launch and re-entry of commercial space vehicles, but orbital operations as well.

Currently, the FAA’s authority is limited to launch and re-entry, both of which require the rocket to travel through the navigable airspace.  The FAA has to be able to coordinate these activities with aircraft operating in the same airspace. What the FAA is seeking now, however, is the authority to regulate those spacecraft after they achieve orbit.

A couple of questions occur to Plane-ly Spoken, including, where’s NASA on this issue?  Common sense suggests to us that with the absence of a NASA manned space program and the demise of the shuttle, NASA has a lot of time on their hands.  They would certainly seem to possess the expertise to get the job done.  Perhaps Congress can ask NASA these questions while they are looking into the aftermath of the Antares rocket explosion a few days ago.

The FAA has a couple of reasons why they believe their expansion into space is justified.  They argue that they need to be involved to ensure that the regulatory framework for space will keep up with new technology and new investment.  FAA also claims that they can provide the United States with an opportunity to influence, coordinate and reconcile different systems, in different countries. 

A lot of this is awfully familiar.  In the UAS world, the FAA UAS Integration Office has the lead, and they are methodically trying to play catch up.  Would a new FAA Space Integration Office be in any different position?  Wouldn’t the FAA be better off focusing its efforts on finishing their UAS work before they ask to be given authority to regulate the world of orbital space operations? 

Does it really make sense for the FAA to journey into outer space when so much remains to be done below 400 feet?  Isn’t NASA better suited to the task of regulating outer space? Can’t these two agencies, which have worked pretty well together for as long as we can remember, put a regulatory structure together with NASA in the lead and allow them to regulate orbital operations?

The FAA has defined navigable airspace as being from the ground up.  We think that in the context of commercial space operations, it is entirely appropriate to ask “how high is up?”    We think we know what the FAA would say, but does that answer really make any sense? 

UAS: The Small UAS NPRM Takes Another Step Forward

Posted in UAS

Yesterday, we wrote about the endgame for the small UAS rule and recent comments that the process might take until 2018 to complete.  Today we would like to talk about the opening move, which occurred with little fanfare in the last few days.

Before the Notice of Proposed Rulemaking (NPRM) can be released for comment, it first must go through a review process at the Office of Information and Regulatory Affairs (OIRA), which is part of the Office of Management and Budget (OMB) at the White House.  Plane-ly Spoken has learned that the FAA has, in fact, sent the small UAS NRPM to OIRA for their review.  This provides a golden opportunity for stakeholders to influence the process before the regulation is publicly released.

As part of the review, members of the public can request a meeting with OIRA pursuant to Executive Order 12866 to discuss the proposed rule, what it should contain, and how the rule will impact interested parties — including UAS manufacturers, operators, and users.  As part of Executive Order 12866, OIRA is required to conduct a cost/benefit analysis and determine whether the benefits of the rule justify the costs.  The review process can take up to 90 days, and can be extended for an additional 30 days.  There is no minimum time for the review.  According to OIRA, the average review period is 53 days. 

If OIRA’s analysis is favorable, the NPRM would then move forward.  It is possible, however, that at the end of the review period, the rule may be “returned” to the FAA, which would then have to take additional time to revise or redraft the proposed regulation. 

It is OIRA’s policy to meet with any interested party, including state or local governments, small businesses or other business interests, or from the environmental, health, or safety communities to discuss proposed regulations.  The meetings are conducted under the OIRA Administrator or his designees, and a log is publicly available of all meetings. 

Now is the time for serious UAS manufacturers, operators, and users to get involved in the federal government’s process and be heard. At a minimum, it would be worthwhile to meet with OIRA and let them know that the process needs to be expedited and that the cost of continued delay of the regulations has serious repercussions.  It leads to lost revenue, lost opportunity, and an increasingly lawless attitude among would-be commercial operators who don’t think there is any light at the end of the tunnel.