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UAS INSIDER BRIEFING . . . . FOLLOWUP

We would like to thank everyone who attended our 2017 UAS Insiders briefing, held in Washington D.C. on July 1st. For those of you who could not attend, below you can find links to the PowerPoint presentations for each of the panels that presented at the briefing.

What the H… is going on at the FAA…?

An overview of the FAA regulatory landscape now and moving forward. Also:  The Taylor decision and what it means for FAA regulations.

Insider Views on Congressional Activities

Will include a briefing on the FAA appropriations fight and how you can position your company to take advantage of what is coming.

How to Get Approval For What You Can’t Do Under Part 107

Beyond visual line of sight operations and package delivery:  opportunities presented by the new administration.

Drones as a Service

The nuts and bolts of buying and selling UAS services, and other contractual and commercial issues.

EASA Regulatory Structure for Drones: A Quick Update

            What is going on in Europe and efforts to harmonize European drone rules.

Anti-Drone

How is the government acting to remove the numerous legal and regulatory obstacles to deploying these new systems?

UAS INSIDER BRIEFING . . . . FOLLOWUP

FAA/UAS – Judge to FAA “You’re just making things up.”

The federal lawsuit seeking to overturn the FAA’s model aircraft registration regulation passed a very important milestone last week.  A three judge panel of the United States Court of Appeals for the District of Columbia Circuit heard oral argument from the Plaintiff, John Taylor and the Federal Aviation Administration.

The main questions raised by Mr. Taylor in his suit is whether a model aircraft is an aircraft subject to FAA regulation and, if it is an aircraft, whether the model aircraft registration regulations are barred by Section 336 of the FAA Modernization and Reform Act of 2012, which states:

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 . . . .

While the Court’s questions seemed to indicate an openness to Mr. Taylor’s argument regarding Section 336, there seemed to be deep skepticism over his claim that model aircraft are not a civil aircraft subject to regulation.  Under questioning, Mr. Taylor fell back on the argument that the FAA’s broad definition of unmanned aircraft is invalid because it would include paper airplanes and Frisbees.  The panel, however, pointed out that the registration regulation did not apply to Frisbees and paper airplanes, and Mr. Taylor admitted that the Court did not need to reach this argument to decide the appeal.

The FAA began its part of the argument by focusing on the purposes of the registration regulation, which are accountability and education.  The Court almost immediately interrupted and asked the FAA why Congress passed Section 336.  The FAA admitted that the statute was intended to bar the FAA from imposing new regulations on model aircraft, but argued that the statutory requirement that all aircraft be registered under Part 47 were preexisting requirements and not new regulations, and that the model aircraft regulation was simply building on this preexisting legal authority.  The panel was clearly troubled by this argument, with one judge calling the agency’s reading of the statute “bizarre.”  The FAA also argued that Congress made clear that it wants the FAA to enforce safety regarding unmanned aircraft, and that registration was a key part of that effort because it was the only way to identify violators.  The Court responded that these were good policy arguments, but that those were arguments that should be made to Congress.  As one judge noted, “the fact that the thing you are doing has a good effect does not mean that the thing is lawful.”

Finally, the Court questioned how the preexisting statutory requirement that all aircraft be registered could possibly justify a new regulation since Section 336 begins by stating “[n]otwithstanding any other provision of law . . . .” The FAA’s response to this queston was interrupted by one of the judges asking, “[w]here are you getting these words from, you’re just making things up.”  The judge then went on to say:

You know, I like my colleague to my right who says it’s a very perplexing statute but, you know, it is what it is, and judges get themselves in trouble when we start fooling around.  There are some judges that I can point to nationally who will say, well, this is not what Congress said.

This is what Congress said, and you have five, as Judge Wilkerson said, you have a frame, if the model that is within these five [requirements] you are done.  That’s that.  That is what Congress said.

Any appellate litigator will tell you that you can’t draw too many conclusions about who is going to win an appeal based on the questioning at oral argument.  However, it is also clear that the FAA had a bad day in Court, and those who thought that the regulations would be easily upheld should take some time to think about what “Plan B” might be for the unmanned aircraft registration system.

For those of you who want to listen to the full 30 minute argument, it can be found HERE.

FAA/UAS – Judge to FAA “You’re just making things up.”

UAS Insider Briefing

            You’re invited

UAS Insider Briefing

Thursday, June 1 2017
9:30 a.m.–4:30 p.m.

Dentons’ Washington, DC, office
Founders Conference Room
1900 K Street NW
Washington, DC 20006

RSVP

An Exclusive Program Focused on the Information You Need

What a difference a year makes! In 2016, nearly everyone thought they knew where drone laws and regulations were heading. Now, with Washington turned upside down, the future has become less certain. The issuance of new rules for drone flights over populated areas, which looked like a sure thing for early 2017, are in a holding pattern. With a federal hiring freeze in place and big budget cuts on the table, agency priorities are being reevaluated and refocused. In addition, Congress will have its own say on priorities as the FAA braces for another round of reauthorization fights.

While it is impossible to know where federal drone laws and policies are headed, it’s imperative to consider the possibilities. Even imperfect analysis is preferable to flying blind! This insider briefing will provide you with a thorough update on where we are, a roadmap for what we think the regulatory landscape will look like, and advice to help you thrive in this rapidly changing environment.

You will hear lively and informative discussions by officials from the FAA and the NTSB, experts from the UAS industry and leading aviation lawyers touching on all aspects of UAS operations and regulations, including:

  • Insider views on Congressional actives, a briefing on the FAA appropriations fight, and how you can position your company to take advantage of what is coming
  • Anti-drone technologies—how is the government acting to remove the numerous legal and regulatory obstacles to deploying these new technologies?
  • The Safety Act….the ultimate liability protection for your drone operation
  • How to get approval for what you can’t do under Part 107 (e.g., beyond visual line of sight operations and package delivery) and opportunities presented by the new administration
  • A mid-year review of changes in state and local drone laws
  • The nuts and bolts of buying and selling UAS services and other contractual, commercial and insurance issues
  • The current FAA regulatory landscape—where it’s going and how you can get a “seat at the table.”

Dentons’ UAS practice group includes attorneys and professionals who are well versed in FAA regulatory and enforcement issues, liability, risk management, insurance, commercial/contract issues, intellectual property, export control, government affairs and other legal issues involved in operating UAS in the commercial world.

Who Should Attend?

Any company that wants to be prepared for the future of the UAS industry

Cost

This program is free to attend, but seats are limited and must be reserved. Lunch will be provided to attendees.

Questions

Please contact Barbara Butler at +1 703 336 8704 or barbara.butler@dentons.com

UAS Insider Briefing

UAS/FAA – Drones v. Airplanes: It’s Just a Matter of Time

The FAA loves to collect data.  One of the statistics they have been monitoring for the past several years is the number of reported UAS sightings by manned aircraft.  The FAA just released its latest quarterly report, and the numbers are not good.

According to the FAA, there were a total of 474 UAS sightings over the three months covered by the new data, for an average of 158 sightings per month.  This compares to 443 sightings from the same period a year earlier.  While the new number is not dramatically worse, it certainly is no improvement.  The FAA is using the new numbers to emphasize that it is sending “a clear message that operating drones around airplanes, helicopters and airports is dangerous and illegal. Unauthorized operators may be subject to stiff fines and criminal charges, including possible jail time.”  The FAA also reiterated that it “has levied civil penalties for a number of unauthorized flights in various parts of the country, and has many open enforcement cases.”

While the numbers themselves certainly tell a story, the underlying data makes for interesting reading.  The FAA has provided details of each of the 474 sightings in a spreadsheet that can be found HERE.  They range from the concerning:

“PRELIM INFO FROM FAA OPS: LAS VEGAS, NV/UAS INCIDENT/1918P/LAS ATCT ADVISED, HELO, WHILE S BOUND ALONG THE STRIP, REPORTED UAS OVER THE EXCALIBUR HOTEL AT 3,000 FEET. NO EVASIVE ACTION TAKEN. LAS METRO NOTIFIED.

UAS MOR Alert for LAS

Type: Hazardous and/or Unauthorized UAS Activity

Date/Time: Sep 25, 2016 – 0218Z

A/C: (HELO)

Summary: CONFIGURATION TWO LANDING RWY 1L,1R DEPARTING RWY 7L ACFT WAS SOUTHBOUND ALONG THE STRIP WHEN HE NOTIFIED ATC OF A DRONE OVER THE EXCALIBUR HOTEL AT 3000FT. LAS NOTIFIED LAS METRO.

To the disturbing:

“PRELIM INFO FROM FAA OPS: IAH/UAS INCIDENT/1830C/HOUSTON TRACON ADVISED AMERICAN GENERAL AA5, REPORTED A NMAC WITH A BLACK UAS APPROXIMATELY 2 FT TALL WHILE W BOUND AT 2,500 FEET 11 WSW IAH. ACFT TURNED LEFT TO AVOID UAS. FBI NOTIFIED.

UAS MOR Alert for I90

Type: Hazardous and/or Unauthorized UAS Activity

Date/Time: Jul 3, 2016 – 2330Z

A/C: (AA5)

Summary: Pilot advised he took evasive action to avoid a stationary or slow moving north bound UAS. ACN.”

To the frightening:

“PRELIM INFO FROM FAA OPS: PITTSBURGH, PA/UAS INCIDENTS/0013E/EC135, REPORTED TWO UAS ONE RED AND THE OTHER WHITE AT 2,500 FEET APPX. 5.5 MILES SE OF PITTSBURGH ARPT. AN IMMEDIATE CLIMB WAS REQUIRED TO AVOID THE UAS.

UAS MOR Alert for PIT

Type: Hazardous and/or Unauthorized UAS Activity

Date/Time: Jul 24, 2016 – 0413Z

A/C: (EC135)

Summary: ACFT IN VFR FLIGHT, AT 2500 MSL, FROM DOWNTOWN PITTSBURGH ENROUTE TO 4G4. APPROXIMATELY 5.5 MILES SE OF BVI AIRPORT, THE PILOT REPORTED TWO DRONES IN FRONT OF AIRCRAFT, AT 2500 MSL, WHICH REQUIRED AN IMMEDIATE CLIMB TO AVOID THE UAS. THE HELICOPTER CLIMBED AND LEVELED AT 3500. WHEN PIT REQUESTED MORE INFO, THE PILOT STATED HE OBSERVED TWO “”””DRONES””””, ONE UAS WAS RED AND THE OTHER WHITE, AND THEIR POSITION WAS 2.5 MILES FROM BEAVER FALLS CITY, “”””ON THE WEST SIDE OF THE OHIO RIVER””””. AT 0418Z, DISPATCH CALLED PIT APCH TO REPORT THE INCIDENT.  HELO 14 RESUMED THE FLIGHT TO 4G4, AND DID NOT REQUIRE ANY FURTHER ASSISTANCE.

The biggest take-away from this data is that the FAA’s job of educating drone users will never end.  No matter how good the education program was last year or last month, there is a continuous flow of new entrants to the market.  Everyone needs to keep their guard up, and continuously promote best practices.  Hopefully, a year from today, the numbers will be going down, instead of up.

UAS/FAA – Drones v. Airplanes: It’s Just a Matter of Time

The UAS Webinar Series – Defending against drones: The next step

Thank you for joining us in our webinar on Drone Defense Technology, the Next Steps.  The slides for the presentation can be downloaded HERE.

For those of you who missed it, the full presentation can be viewed by clicking this LINK.

The UAS Webinar Series – Defending against drones: The next step

The UAS Webinar Series – Defending against drones: The next step

      Thursday, January 5, 2017
1–2:30 p.m. ET

Webinar – no charge

RSVP

For the past several years, everyone has been working to integrate drones into the national airspace system as quickly as possible. With the launch of the new Small UAS Rule (Part 107) earlier this year, unmanned aircraft systems are being used in unprecedented numbers. As they continue to proliferate, however, a very different issue—drone defense, i.e., “How do we keep UAS from flying where we don’t want them?”—has come to the fore. Even Congress has gotten into the act, ordering the FAA to develop a system for designating “no-drone-zones” around critical infrastructure.

From jammers that block signals to systems that spoof (i.e., gain unauthorized access to) control systems to microwave weapons that fry onboard electronics, there is no shortage of ideas for how to solve this problem. Unfortunately, however, the ingenuity of scientists and the drive of entrepreneurs far outstrip the law’s ability to deal with these new technologies.

This webinar, presented by Dentons, will examine the latest drone defense initiatives and technologies and analyze the legal issues that need to be resolved before they can be deployed on a widespread basis. Among the topics we will address are:

· The competing drone defense technologies

· Federal and state efforts to designate “critical infrastructure”

· Legal limits on shooting down a drone or interfering with its flight

· Jamming and other FCC issues

· The potential impact of federal and state hacking and cyber security laws

· FAA issues raised by systems that take control of a drone in flight.

You will also have an opportunity to ask questions. We look forward to your joining us for this informative and interactive session.

Questions

Please contact Barbara Butler at +1 703 336 8704.

 

The UAS Webinar Series – Defending against drones: The next step

UAS – The US Laps Europe on UAS Innovation and Regulation

We once again turn our attention to Europe, where SESAR has just released a comprehensive study on the European Drone Outlook.  SESAR, or the Single European Sky ATM Research project, was established in 2007 as a public-private partnership and is responsible for the modernization of the European air traffic management (ATM) system.

The study opens by warning that Europe risks falling behind the rest of the world in exploiting the UAS boom, as both the US and China spend more on technology and innovation than all European countries combined.  The study projects total demand for UAS services in Europe at $10 billion per year by 2035 and $15 billion per year by 2050.  The study also projects the total number of consumer drones in use in Europe by 2050 at 7 million aircraft, with another 400,000 commercial and government aircraft.  As in the US, the biggest user of drones is expected to be in the agricultural sector, which will account for nearly 25% of all commercial operators.  In addition, the UAS industry is expected to create 100,000 new jobs Europe wide.

The study warns the Europe only has 5-10 years to put the basic infrastructure for UAS airspace integration in place, including working detect and avoid and low level traffic management systems.  The study believes that it will take at least $200 million in additional research and development spending to make this a reality.  Any delay beyond that timeline puts the EU at a substantial competitive disadvantage, and makes it increasingly difficult to the EU to keep up with the rest of the world.

One of the other major focuses of the report is the need for UAS air traffic and regulatory systems to be created and run above the level of the member states and instead run at the EU level.  In particular, SESAR is wary of the results if each member state pursues unmanned traffic management solutions on their own, as there will be duplication of effort and a fragmentation of solutions, making it difficult for companies to do cross-border work as the systems mature.

After having read numerous stories over the years that the US is falling behind Europe in the race to integrate UAS, it is nice to see a comprehensive study that shows the opposite.  Of course, this challenge comes at a bad time for Europe, with Brexit in full swing, and the possibilities of Frexit, Grexit, Oexit, etc., looming, it may become increasingly difficult to find the will to make the substantial investments in technology and systems the report calls for.  Only time will tell whether Europe will be able to take advantage of the bright future the study predicts.

UAS – The US Laps Europe on UAS Innovation and Regulation

It’s A Bird! It’s A Plane! It’s a Drone!

The ability of people to operate small UAS over people has taken a big step forward.  The FAA has been saying that it wanted to release its draft of the so-called microUAS rules before the end of the year.  However, before that can be done, the Notice of Proposed Rulemaking (NPRM) 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.  That crucial first step was taken earlier this week.

According to OIRA’s website, the new rule, entitled “Operations of Small Unmanned Aircraft Over People,” will address:

the performance-based standards and means-of-compliance for operation of small unmanned aircraft systems (UAS) over people not directly participating in the operation or not under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft. This rule would provide relief from certain operational restrictions implemented in the Operation and Certification of Small Unmanned Aircraft Systems final rule.

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 UAS manufacturers, operators, and users to get involved in the federal government’s process and be heard.  If you have a strong interest in operations over people, this is your last chance to impact the regulatory landscape before the rule is published and open for comment.

It’s A Bird! It’s A Plane! It’s a Drone!

Drone v. Airplane: A Near Miss in Canada

For the past several years, people have been warning that it is only a matter of time before there is a serious incident involving an unmanned aircraft and a large commercial passenger plane.  While there have been reports of sightings of UAS by airliners near airports, none of these events have resulted in injuries.  This has led some to say that the threat to manned aircraft by UAS is largely overblown.  Unfortunately, today we have a reminder that the risks are real, and that as UAS are integrated into the National Airspace System, everyone has to take safety issues seriously.

The Canadian Transportation Safety Board has announced that it is investigating an incident on Monday that resulted in the injury of two persons on a Porter Airlines flight from Ottawa to Toronto.  The plane was forced to take evasive action to avoid a collision with what the flight crew believes was a UAS that crossed its path when the aircraft was making a landing at Toronto’s Billy Bishop Toronto City Airport.  The two injuries were to flight crew, who were up securing the cabin for landing when the aircraft made its sudden dive.

Canadian transportation authorities are taking the matter very seriously, and have promised to speed up the issuance of their own comprehensive UAS regulations, which are expected to be released for public comment sometime in the spring of 2017.  In the meantime, Canadian authorities are going to be stepping up their public education campaign to address the steadily increasing number of serious UAS interactions with aircraft.  The Canadian Pilot’s Association is also pushing for Canadian authorities to implement a system of UAS registration for Canada similar to what the FAA put into place last year.

This incident once again shows that the need to educate the public is never ending.  Given the way the technology is proliferating around the world, there continues to be an influx of people conducting aeronautical activities who do not have an understanding of how the system works or what is unsafe.

Drone v. Airplane: A Near Miss in Canada

UAS Webinar Series – Drones: A Year End Review and Preview for 2017

We would like to offer our thanks for the huge turnout we had for our free webinar on UAS Webinar Series – Drones: A Year End Review and Preview for 2017.  For those of you who could not make it, we are providing a downloadable version of the slides, as well as a link to the full presentation so that you can listen at your leisure.

UAS Webinar Series – Drones: A Year End Review and Preview for 2017