It’s a Bird! It’s a Plane! It’s…a Flying Case of Beer?

There is no denying the cool factor of having a low-flying aircraft drop off your latest tech toy, book bundle or what-have-you on your doorstep, along with the speed and convenience of direct-delivery. Seeing that technology in action, on the other hand, is proving to be a bit of a challenge. In a February 2007 policy statement regarding UAS operations in the National Airspace System (NAS) (See 72 Fed. Reg. 6689), the Federal Aviation Administration (FAA) recognized that unmanned aircraft systems (UAS) fall within the statutory and regulatory definition of “aircraft” as they are devices that are “used or [are] intended to be used for flight in the air with no onboard pilot.” (Id.; see also 49 U.S.C. 40102; 14 CFR 1.1.) One might assume, therefore, that federal regulation has the potential to kill the buzz surrounding the much anticipated debut of Amazon’s delivery drones and other similar UAS technologies.

In reality, the FAA’s current policy regarding UAS is based only on those UAS deemed public aircraft, civil aircraft or model aircraft, and does not provide rules or guidelines specific to UAS intended for commercial use. This lack of specific regulatory language only adds to the confusion caused by the FAA’s release of a memorandum for action entitled, “Interpretation for the Special Rule Regarding Model Aircraft” (Docket No. FAA-2014-0396). Along with a growing public consensus that commercial drones are one of a number of innovations that constitute technologies of dual-use concern, it leaves many wondering just how high this bird will fly.

Click here to submit your comments to the FAA on their Interpretation of the Special Rule Regarding Model Aircraft by COB July 25, 2014.

Commercial vs. Model Unmanned Aircraft Systems

The FAA released a notice at the end of June to clarify federal regulations under AC 91-57, which is specific to the use of UAS as model aircraft. The action was in recognition of the possibility that people and companies other than modelers might be flying UAS for business purposes with the mistaken understanding that they are legally operating under that authority. The notice reiterated AC 91-57 operating guidelines, and further noted that to qualify as a model aircraft, the aircraft would need to be operated purely for recreational or hobby purposes, and within the visual line of sight of the operator.

The notice also served to invite interested persons to comment on the above memo regarding the Special Rule under Section 336 of P.L. 112-95, which had been established by Congress in the FAA Modernization and Reform Act of 2012. In brief, the memo specifies that:

1. model aircraft must satisfy the five criteria outlined in the Special Rule to qualify as model aircraft and to be exempt from future FAA rulemaking action; and
2. consistent with the Act, if a model aircraft operator endangers the safety of the NAS, the FAA has the authority to take enforcement action against those operators for those safety violations.

Model aircraft that do not meet these statutory requirements are nonetheless unmanned aircraft. As such, they are subject to existing FAA regulations, as well as future rulemaking action, and the FAA has stated its intention to apply and enforce these regulations accordingly.

Why do Businesses care about FAA Regulation of Unmanned Aircraft Systems?

Contrary to what many could assume based on recent news coverage of Amazon’s drones and the FAA, a few sole proprietors and corporations like Harry Arnold’s Detroit Drone are already using unmanned aircraft. Federal regulation of commercial activities, nevertheless, remains a hot-button issue for many people like Brendan Schulman, an attorney with New York firm Kramer Levin, the nation’s first unmanned aircraft systems practice. In a recent article about Rep. Sean Patrick Maloney (D-N.Y.), who oversees FAA actions on the House Transportation and Infrastructure Aviation Subcommittee and who decided to capture his June 21 wedding day on video using a drone, Schulman was quoted as saying:

There’s a philosophy of government regulation in which when a person charges money for something, they become subject to additional regulatory restrictions or requirements. No one has a problem with you giving your friend a ride to the airport, but if you drive around town offering paid rides the regulators will probably intervene.

Schulman also happened to represent Raphael Pirker in the 2011 case of FAA v. Pirker by the National Transportation Safety Board, in which the latter was fined for using his Zephyr II “model aircraft” to take and sell aerial photographs of the University of Virginia to the school. The fine was dismissed in an early March 2014 ruling, highlighting the fact that the FAA did not have the right to regulate remote-control drone use at this time.

Entrepreneurs and small businesses want to be free to innovate and monetize their innovations, while other companies want the freedom to explore new opportunities to increase their profitability. How do we, as a country, with all its resources and institutions, support free enterprise without trampling on the inherent freedoms of the people?

From the FAA’s Perspective

The FAA considers the regulation of air traffic a matter of safety and, in some cases, national security. Its charge is to prevent UAS from interfering with larger government or commercial aircraft, as in the example of this alleged near mid-air collision. In establishing rules governing the use of any such aircraft, the agency considers factors that fall generally into three categories: 1) how the aircraft is operated; 2) operating rules necessary for designated airspace; and, 3) special restrictions such as temporary flight restrictions and notices to airmen.

The FAA does regulate the airspace of designated National Security Areas, which are established to enhance national security and protect national assets. The Secret Service thus most definitely does not consider Maverick-style low passes of the White House to be cool. The scope of FAA responsibility, however, is largely to manage the safe conduct of aircraft operations, including ensuring the safety of the people flying the aircraft or of those at risk of being injured from aircraft operations.

A main safety issue regarding UAS is thus one of visibility. Regulatory considerations focus on ensuring that the UAS operator has the best view of the aircraft. The statutory requirement for model UAS therefore precludes the use of vision-enhancing devices, such as binoculars, night vision goggles, powered vision magnifying devices, and goggles designed to provide a “first-person view” from the model, and it is conceivable that these requirements would apply equally to commercial UAS under future legislation.

Since the FAA is limited to regulating aircraft operations to ensure public safety and has jurisdiction in National Security Airspace, there remains a tremendous gap in every other aspect of commercial UAS operations; namely, how these operations may affect everyone else.

From the Public’s Perspective

There’s no denying that there are certain advantages to what commercial drones can offer individuals and businesses, which may include services that provide:

1. photographic or video vantage points not previously available at such a low cost (e.g. compared to hiring an aerial photographer);
2. greater savings both in terms of cost and door-to-door delivery time than current ground or air freight shipping services; and
3. added value through an environmentally friendly alternative to legacy imaging/delivery systems and technologies.

The downsides to commercial UAS, however, are unsurprisingly consistent with concerns regarding many of today’s emerging information and hardware technologies. One online commentator bluntly remarked:

The package delivery idea is just stupid. Sometimes the highest tech solution isn’t the best solution, it’s just cool. And standards of cool seem to be getting lower all the time.

Privacy and Personal Freedom

Swimming and sunbathing

Outdoor yoga

Meditation

Weddings

Backyard barbecues

These are just some of the activities that Americans are free to enjoy, and most often in relative privacy. In fact, many people go to great lengths to pay for and install fencing or plant foliage around their homes in order to enjoy these pastimes without the prying eyes of nosy neighbors. While some people may care less about who notices their lack of tan lines, many others do not wish, nor can afford, to build a dome over their properties to hide from aerial spying by anyone ranging from opportunistic photojournalists to an unscrupulous government or a jealous ex-spouse, not to mention that some drones are smaller than the palm of your hand. In this regard, drones may present an excuse for Americans—including the commercial UAS operator—to spend even more time hunkered down in their homes than they already do.

Public Safety and Protection of Property

Perhaps it is more important to question the sanity of expecting children and hobbyists to potentially have to compete with commercial interests in order to retain the freedom to do the things they love without concern for personal safety. There have always been minor risks involved with flying kites and model airplanes or with shooting fireworks (there are these things called birds and telephone wires…), but it is unlikely that even the most high-tech drone sensor could see kite string or anticipate a small rocket launch in time to avert danger.

Without some degree of regulation, the low costs of building and operating a commercial drone compared to those of much larger passenger or freight aircraft make it possible that any number of UAS could take to the skies. Even if that were not the case, no matter how many tests or inspections a commercial drone might undergo, more “stuff” in the sky still means the possibility of more “stuff” falling out of it or crashing into something or someone, damaging property or seriously injuring an individual. Conversely, what is to prevent someone on the ground from damaging, destroying, or stealing the drone itself, or stealing its cargo?

Dual-Use Dilemma

Whenever a technology operates in the place of a human being, there is always the possibility that it may be taken over—physically or remotely—by a third party. Given the recent upheaval over the NSA’s intrusion into personal telecommunications, it is reasonable to consider how mobile security cameras used in UAS, for example, might similarly be exploited for unrestricted surveillance, co-opted by a company, government agencies or recreational or criminal hackers.

A greater concern regarding UAS is similar to that regarding autonomous vehicles (driver-less cars). If commercial UAS were to become common, what is to prevent a “flying IED” from hiding in plain sight? Moreover, nuclear forensics is complex enough considering the relatively few individuals who might reasonably have the access and means to sell, purchase or transport nuclear materials. Imagine the difficulty in finding the perpetrator of a UAS bomb among all the drones delivering diapers.

The depth of complexity—and perhaps absurdity—of introducing commercial UAS into public airspace, at least at this point in time, is captured by another online reader’s assessment:

I’m sure we have all occasionally stopped and thought about all the various parts of the radio spectrum are going on, invisible, wherever we are – cell phones, Bluetooth things, wifi, On Star, radar, radio, etc. etc. If each signal was a colored line, air would be opaque. It’s daunting. Now, if drones catch on, think about many many drones flying around you on many different kinds of errands, to your doorstep, down streets, up alleys, to drone landing pads, in and out of back yards, and you can add your own ideas to the list. Now we’ve taken stupid and raised it to the power of 100.

Is the U.S. Constitution enough to determine what, or who, takes precedence when it comes to transformative technologies? When, if ever, should innovation, limited consumer demand and free enterprise trump issues of public safety, privacy and personal freedoms? It is clear that much needs to be considered across industry, government and an engaged public if commercial UAS are to ever become commonplace.

Veritas Alchemy wants to know what you think. Can reasonable UAS legislation be enacted that would strike a reasonable balance between public and private interests? Please use the Contact form at the tab above, or write to info@veritasalchemy.com.