Industry, Entrepreneurs Await FAA Small Drone Ruling
In October 2011, Raphael Pirker, an unmanned aerial vehicle enthusiast, flew a Ritewing Zephyr powered glider aircraft around the University of Virginia in Charlottesville. He used it to take aerial video and photographs. When the Federal Aviation Administration — the agency tasked with regulating unmanned aircraft — later heard about his flight, it accused Pirker of flying recklessly and slapped him with a $10,000 fine.
While hobbyists and recreational users of small UAVs are free to use the aircraft in most domestic airspace, commercial entities are not yet able to take advantage of the technology, according to federal regulations. That’s where Pirker went wrong — he was getting paid for his services.
Rules and guidance from the FAA are required before commercial companies can fly unmanned aircraft legally. The agency is scheduled to announce a notice of proposed rulemaking for small unmanned aerial systems later this year, but some industry members say the agency has already taken too long and is stifling innovation.
“They need to hurry up. They have been sitting on this rule … and this whole predicament they find themselves in is of their own making. They have known that this was coming for years, but they haven’t done anything to regulate unmanned aircraft, so now they are scrambling,” said Ben Gielow, senior government relations manager and general counsel for the Association for Unmanned Vehicle Systems International.
An economic impact report released by the association last spring found that within 10 years of UAV integration into the national airspace, more than $80 billion would be pumped into the economy and more than 100,000 jobs created.
“None of that economic potential or jobs will be realized until the FAA writes those safety rules,” Gielow said.
Entrepreneurs have big hopes for UAVs. Farmers want to use them to survey crops, realtors to take aerial photographs of homes and moviemakers to shoot hard to film scenes. But they are all hitting major roadblocks as they run into FAA red tape.
In April, AUVSI along with dozens of industry partners called for the FAA to expedite its rulemaking decision.
“The potential benefits for unmanned aerial systems cannot be underestimated. Whether it is helping farmers improve crop yields, assisting first responders with search-and-rescue missions, or advancing scientific research, UAS are capable of saving time, saving money and, most importantly, saving lives,” the letter said. “The time for resolution has come, and we cannot afford any further delays. The technology is advancing faster than the regulations to govern it.”
One of the most frustrating parts of the FAA’s regulatory procedures is the arbitrariness of what defines an unmanned aerial vehicle, Gielow said.
Currently, the agency makes a distinction between model and unmanned aircraft, but the only difference is the operator’s intention, Gielow said.
“If you’re flying an unmanned aircraft or a model aircraft and you’re just doing it for fun and recreation, the FAA says, ‘OK, you’re a model aircraft. You don’t need to abide by any FAA rules. Just operate these things safely, and you’ll be fine,’” Gielow said. “But as soon as you use an aircraft for anything other than recreation or hobby — so whether it’s real estate agents or the roofer or the farmer — all of the sudden the FAA says, ‘No, no, no, you can’t do that, because you’re a commercial activity.’”
“From a safety standpoint, that doesn’t make any sense,” Gielow said.
Under the Federal Aviation Administration Modernization and Reform Act of 2012, the agency was mandated to integrate small unmanned aerial vehicles under 55 pounds into the domestic airspace by September 2015. To gather data on UAVs, the agency said it would create test sites around the country, but it missed key deadlines to establish them.
Late last year, the agency announced the six sites it would use to collect data, which included the University of Alaska, the state of Nevada, New York’s Griffiss International Airport, North Dakota’s Department of Commerce, Texas A&M University – Corpus Christi and Virginia Polytechnic Institute and State University. In March, the FAA announced that its first site in North Dakota was operational.
But while at least one test site is up and running, the agency continues to keep commercial drone operators grounded.
The FAA has reprimanded numerous companies and individuals for operating UAVs commercially but has so far only fined one person — Pirker.
After Pirker was served a $10,000 fine, he challenged it before the National Transportation Safety Board and asked to have it dismissed. In March, NTSB judge Patrick Geraghty dismissed the fine, citing the FAA’s lack of enforcement so far. The FAA has since appealed the decision, said Les Dorr, a FAA spokesman.
“We’ve appealed it to the full NTSB, and while we have appealed, the judge’s ruling is stayed, so basically what was in place before is still in place,” Dorr said.
A panel of NTSB judges will take up the case later this year.
The agency has been criticized for delays in integrating UAVs, but Dorr said it must err on the side of safety.
“It’s a challenge because, number one, you have to ensure the safety of people and property on the ground. Number two, you have to come up with regulations that will do that while at the same time making sure that this is done safely in the busiest, most complex airspace in the world,” Dorr said.
Despite criticism, Dorr said the agency is well on its way to meeting its congressional mandate of moving towards integration. Dorr said the FAA is mandated only to have a plan in place by the September 2015 deadline and it must be making clear progress toward integration. He pointed to the FAA’s Unmanned Aircraft Systems Roadmap — a document that goes over the agency’s small unmanned aerial system implementation plan — that was released in November as well as the pilot sites as evidence of the agency’s commitment to fulfill the mandate.
“The congressional language does not mean that by Sept. 30, 2015, you will be able to fly whatever you want, wherever you want, whenever you want,” Dorr said. FAA administrator Michael Huerta “has made it very clear that integration of unmanned aircraft into the nation’s airspace is going to be incremental, with the primary concern being … how it can be done safely without putting an undue burden on an industry that is growing and very dynamic.”
As for when small UAVs will be fully integrated in the domestic airspace, it is “impossible to speculate,” Dorr said.
The agency is still planning to release a notice of proposals for rulemaking on UAS later this year, Dorr said. Once the notice is released, the FAA will solicit comments from industry and the public for 60 to 90 days. The number of responses the agency receives will determine how long it takes before formal rules are released, Dorr said.
“If we get very few comments or if all the comments, or the substantial majority of comments, agree with the provisions of the proposed rule, then it is much easier to craft the final rule than it is if you get hundreds or literally thousands of comments and/or if there is substantial disagreement with provisions of the proposed rule,” Dorr said.
While the FAA is facing criticism for ongoing delays, it is a daunting task that takes time, said Phil Finnegan, director of corporate analysis at The Teal Group, a Fairfax, Virginia-based defense and aerospace market analysis firm.
“It’s a difficult issue. The FAA is concerned about safety in the airspace, so they are going to go slowly and maybe err on the side of caution,” Finnegan said. “But they need to be assured that this is a safe process. There are a lot of complexities with the technology, and so they are doing a very thorough job. It’s just not easy.”
The most that can be hoped for by September 2015 is a plan that will outline gradual steps toward an open airspace, Finnegan said.
Even if the FAA promptly releases regulations, companies and UAV enthusiasts are forgetting that there are many other issues at play, said Larry Dickerson, a senior defense analyst at Forecast International, a Newtown, Connecticut-based marketing and consulting firm.
“Even if they come out and say all these rules, the next thing they’ve got to figure out is what about insurance liability? I haven’t heard anybody say anything about that. What happens if you have one of these things [and it crashes?],” Dickerson asked.
Besides insurance claims, UAV operators will have to navigate individual state laws and overcome mounting privacy concerns. Furthermore, basic technological questions still remain. Sense-and-avoid systems need to mature, and there is also a question of what happens if a data link is hacked, Dickerson said. These obstacles will likely be too much for many companies initially, he said.
In Tennessee, Bone McAllester Norton PLLC, a Nashville-based law firm, is already taking steps to help companies and individuals better understand the current opportunities and limitations of using unmanned aerial vehicles for commercial purposes. The firm recently announced the establishment of its unmanned systems services.
“I think we’re just now at the tipping point where enough businesses are going to start wanting to get into this industry that now seemed like the right time to launch the practice,” said James Mackler, the firm’s lead attorney for UAV services.
Mackler — a former Army pilot who flew Black Hawk helicopters — said his time in the military gives him a unique perspective when it comes to practicing UAS law.
“I have had the experience of working literally side by side with drones,” Mackler said.
Because of confusion over FAA regulations and individual state laws regarding UAS — Tennessee has already passed several laws limiting drone use — the firm sees a number of opportunities in advising clients on UAS issues, he said.
“The reason this is so exciting to me is … because it is such a new and emerging field with such incredible technology with both risks and opportunities,” Mackler said. “Some people kind of compare it to the dawn of the Internet age. That’s probably an apt comparison in terms of lack of regulation and [how] things are really being driven by pure innovation right now.”
Since announcing its expansion into UAS law in April, four companies have entered into business relationships with the firm, Mackler said.
The firm’s first client was Farmspace Systems LLC, an Alamo, Tennessee-based company that aims to give farmers better situational awareness of their crops by using UAVs, Mackler said.
While some companies choose to illegally operate UAVs for their business operations, Farmspace Systems is anxiously awaiting FAA regulations to legally operate its UAS, he said. The firm is helping the company receive a waiver from the agency, he said.
So far, the FAA has only granted a waiver to one company, petroleum giant ConocoPhillips, to fly Insitu-built ScanEagles in the Arctic “to perform marine mammal and ice surveys necessary to meet environmental and safety rules before drilling on the sea floor,” according to an FAA press release.
One of the most confusing parts about current FAA regulations is understanding what constitutes an unmanned aircraft and a model aircraft, Mackler said.
“I think it is extremely confusing, even as a lawyer it is confusing. … The line between commercial use, … hobby use and public use is extraordinarily big. Nobody understands it,” Mackler said. “It doesn’t make sense.”