Category Archives: Legal

UAV for Christmas

Any day now, federal regulators will propose rules for safely operating small commercial drones over the U.S.. But the fledgling drone industry — in Los Angeles County and across the nation — has not been waiting to take off. Sales of the robotic flying machines are soaring. This month several thousand people flocked to the L.A. Memorial Sports Arena near USC for the commercial drone industry’s first expo.

Gauging from the energetic crowd and busy industry booths, spectators could easily forget that flying a drone to make money is illegal, and new rules won’t be finalized for months.
The Federal Aviation Administration says that by year-end it plans to propose rules for commercial drones weighing less than 55 pounds. The public will then get to comment. “Drones will affect and change the world—much like automobiles, but on a much larger scale.”
– Taylor Chien, DroneFly’s 30-year-old co-founder and chief executive
Near the Los Angeles expo entrance, a booth for DroneFly Inc., a Westlake Village start-up, was promoting its small helicopter-like drones with the help of music and a DJ. Young women in crop tops and short skirts attracted interest in the company’s drones that it was selling to anyone, including kids and professionals.

“Drones will affect and change the world — much like automobiles, but on a much larger scale,” Taylor Chien, DroneFly’s 30-year-old co-founder and chief executive, proclaimed in a video playing on a big screen.
The video showed footage taken by the company’s camera-equipped drone as it flew through downtown streets bordered with skyscrapers, along the Los Angeles River and over nearby neighborhoods, before landing with a thud.

Not everyone was impressed. “It frightens me. It really does,” David Morton, a retired Federal Aviation Administration inspector and speaker at the expo, said when a person in the crowd asked about DroneFly’s video 15 minutes later. “The technology is way ahead of the regulatory environment.”
Drones have hit buildings and people, but so far there have been no reports of serious injuries in the United States. A growing concern is the almost daily reports by pilots who see drones flying dangerously close to their aircrafts.
Two aircraft on approach to Los Angeles International Airport in May reported seeing a “trash can-sized” drone at 6,500 feet, according to a report filed with the FAA.

In October, a small plane flying above Burbank at 8,000 feet reported seeing a red-and-black drone, measuring three feet across, passing just off its wing in the opposite direction.
A Life Flight helicopter in Pennsylvania had to make a sudden hard turn when a nurse on board noticed a drone flying fast toward the craft.

A boy plays with the controls of a helicopter used to promote pilot training during the drone expo. Anyone can fly a drone for fun or personal use — as long as national safety guidelines are followed. YouTube has videos of drones flying out of control and then disappearing. The “flyaways” can be caused by faulty programming, interference with the drones’ GPS systems or lost connections with the ground controller.

The FAA’s ban on flying commercial drones until regulations are in place has clearly held back the industry. Yet some entrepreneurs have grown tired of waiting and are operating the unmanned robotic flying machines anyway — spurred by the agency’s lack of enforcement.

Sales are increasing fast as the drones become cheaper, more powerful and easier to fly. Drone prices start at under $50 on Amazon. Frank Tesoro, DroneFly’s 30-year-old president, said the company that he founded with Chien in a garage sold $3 million in drones in 2013 — its first year of operation. This year, he said, the company is set to triple that. Evidence of the industry’s booming sales comes from Parrot, a French firm that is one of the few drone makers that is a public company. The firm said last month that its third-quarter sales of the machines climbed 130% over the same period last year.

The public often connects drones to their controversial use by the military. Organizers of the expo, however, said they wanted to promote the technology’s many promising commercial uses.
Farmers want to use drones to monitor crops and improve yields. Industrial companies see using them to inspect smokestacks, pipelines and other hard-to-reach property. News media groups envision them as reporting tools. Only a handful of companies have received an exemption to fly drones commercially. Anyone, however, can fly a drone for fun or personal use — as long as national safety guidelines are followed.

Expecting thousands of drones to be given as Christmas gifts, the FAA began a safety campaign this week, reminding amateur operators of the rules. The guidelines require operators to keep drones below 400 feet, always within sight and at least five miles from airports. Entrepreneurs have been waiting for years for the FAA’s rules for commercial drones. Many expo attendees said they fear the proposed rules will be so onerous that many people will be kept out of the business. Among their concerns is that the agency will require drone operators to get a license similar to what is required of commercial pilots — a certificate that can take many months and cost tens of thousands of dollars.

“Licenses hold you accountable for doing the right thing with the technology,” Morton told a roomful of entrepreneurs and others at the expo, which attracted dozens of companies and an estimated 4,000 people. “We want to follow the rules,” A.J. Jolivette, chief executive of Terosaur, a drone firm in Huntington Beach, responded. But if the rules are too strict, he said, it will cause people to “go around the regulations.”

So far, the agency has filed notices of enforcement action against just five people who were flying drones commercially.
Raphael Pirker was fined $10,000 after he used a drone to film a promotional video of the University of Virginia. The FAA contended that he had operated the unmanned glider without a license and recklessly, nearly missing a pedestrian and buildings. Pirker challenged the fine, but last month the National Transportation Safety Board ruled the FAA had the power to punish drone operators for reckless behavior. An administrative law judge must now determine whether Pirker’s flight was reckless.

During an expo panel, the chief executives of four drone companies, including Chien, spoke of trying to succeed despite the ban on flying commercial drones. “I can teach anyone to fly in five minutes,” Chien said. “Who hasn’t had the dream to fly?… It’s a huge movement, and it’s here to stay.”

LA Times 24 Dec 2014

Want to Fly a UAV?

Want to Fly a UAV?
If so start taking pilot lessons. In the next two weeks we should read of the proposed rule for flying a UAV for civil commercial purposes. I anticipate that this proposed rule will require a certificate of pilot qualifications of manned aircraft. The precedent of this will be that the USAF requires its drone pilots to be Air Force pilots and have therefore completed pilot training.

This rule will be two years late. The law is Public Law 112-95 in effect on 14 February 2012. Reference specifically Sections 332-336. It states that proposed rules should be out by the end of 2012 and mandates that the FAA fully integrate UAVs into the national airspace system no later than 31 December 2015. No one anticipates this mandate will be obeyed. As the FAA has only recently started their five year plan to integrate. In the words of Peggy Gilligan, FAA’s associate administrator for aviation safety “we need to speed this up a little bit.”

So here is where we are today. The FAA has identified three different types of UAVs: Civil, public and model aircraft. Civil is the commercial type, public is for government operational missions and model aircraft. Model aircraft is recreational and rules are from Advisory Circular 91-57 published 09 June 1981. Those rules are straight forward. You can fly your model aircraft, read UAV, if it flies under 400 feet above the surface and is totally in you sight. And for recreational purposes only.

Here is what commercial operators want: the ability to fly UAVs weighing less than 55 pounds at an altitude required by the commercial mission out of the sight of the operator during daylight and darkness. And make money. This activity is limitless and profitable.

Here is what the FAA wants: to integrate UAVs into the busiest, most complex airspace system in the world while protecting the safety of the American people in the air and on the ground.

The safety principle is commanding. UAVs must be prevented from colliding with other aircraft, flown only in non-restricted airspace and adhere to the basic separation rules of Federal Aviation Regulations not only for other aircraft but with physical land properties. Additionally, the UAV must land safely if contact is lost. It appears that the FAA has decided you must be a licensed pilot to adhere to the safety mandated.

FAA can not regulate UAVs?

Judge Rules Against FAA in ‘Landmark’ UAV Challenge
by  Bill Carey

NTSB judge dismissed the $10,000 fine the FAA levied against Raphael Pirker for flying the Ritewing Zephyr for hire. (Photo: Ritewing RC)

March 7, 2014, 10:08 AM

An administrative law judge with the National Transportation Safety Board (NTSB) dismissed the $10,000 fine the FAA levied against Raphael Pirker for flying a small unmanned aircraft, casting doubt on the agency’s ability to regulate their commercial use. In a decision dated March 6, NTSB Judge Patrick Geraghty found that the FAA has no regulations that apply to model aircraft or that classify a model aircraft as an unmanned aircraft system.

In response, the FAA said: “We are reviewing the decision.” The NTSB adjudicates appeals of FAA enforcement actions; the FAA can appeal the ruling to the NTSB.

The FAA fined Pirker, a Swiss citizen, for operating a Ritewing Zephyr at the University of Virginia in Charlottesville, Va., on Oct. 17, 2011. A marketing company had hired Pirker to supply aerial photographs and video of the UVA campus and medical center. Ritewing RC of Apache Junction, Ariz., produces the aircraft, which is described as an “electric flying wing” that weighs less than five pounds.

In an assessment order, the FAA said that Pirker flew the aircraft “in a careless or reckless manner” in violation of federal aviation regulations (FAR) Section 91.13(a). Further, the agency said he operated the flight for compensation. The FAA currently restricts the commercial use of UAVs.

Pirker sought to have the case dismissed “in the absence of a valid rule for application of FAR regulatory authority over model aircraft flight operations,” according to Geraghty’s finding. The law firm representing Pirker—Kramer Levin Naftalis & Frankel—has described the challenge as a landmark case, “the first federal case ever involving the operation of commercial drones in the United States.” In December, Kramer Levin said that it had formed a new unmanned aircraft systems practice group “in light of the increasing use of drones for commercial purposes…Kramer Levin’s new practice will provide sophisticated and creative problem-solving approaches in this uncharted legal territory.”

In his ruling dismissing the FAA’s fine, Geraghty said the FAA had no basis for asserting FAR Part 91 authority over Pirker’s operation, and that only advisory guidance applies to model aircraft. The FAA “has not issued an enforceable FAR regulatory rule governing model aircraft operation; (and) has historically exempted model aircraft from the statutory FAR definitions of ‘aircraft’ by relegating model aircraft operations to voluntary compliance with the guidance expressed in AC 91-57,” states a copy of the ruling provided to AIN.

In response to the judge’s ruling, Michael Toscano, president and CEO of the Association of Unmanned Vehicle Systems International issued the following written statement: “We are reviewing the decision very carefully and we have been in touch with the FAA to discuss its implications and the agency’s response. Our paramount concern is safety. We must ensure the commercial use of UAS takes place in a safe and responsible manner, whenever commercial use occurs. The decision also underscores the immediate need for a regulatory framework for small UAS.”

[Once an NTSB administrative law judge issues a decision, either the party that appealed the FAA’s enforcement action, the FAA itself, or both parties may appeal the decision to the five-member NTSB board. The appeal must be filed with the NTSB Office of Administrative Law Judges within 10 days of the date of the written decision. The party filing an appeal then has 30 days from date of the decision to file an appeal brief with the NTSB Office of General Counsel. The opposing party has 30 days from the date of the appeal brief to file a reply brief. “Once both parties have filed briefs, the full NTSB board will consider the case and issue an opinion and order. After the full board issues its decision, either party may appeal that decision to a United States Court of Appeals within 60 days of the board’s decision,” the NTSB said, responding to an AIN query. —BC]

FAA risks losing drone war

Thanks to falling prices, spotty enforcement and the fact that it’s almost impossible to spot the devices being used, the FAA is often powerless to halt the growing drone swarm. Retailers freely sell the tiny planes, quadcopters and hexacopters for as little as a few hundred dollars, and entrepreneurs continually come up with creative uses like wedding photography and crop monitoring — along with delivering beer and dropping off dry-cleaning.

The result, observers and drone users warn, could be a Wild, Wild West in the nation’s skies. As small drone operators grow used to flying them without the FAA’s permission, they could become less inclined to obey any rules the agency puts in place. And with the cost of the technology continuing to drop, the drones could eventually become far too ubiquitous for the agency to police.

Meanwhile, the FAA is lagging in meeting a congressional mandate to allow commercial drones to share the skies legally.

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“Most people want to comply with the FAA rules,” said Ted Ellett, a former FAA general counsel who is now a partner specializing in aviation at the law firm Hogan Levells. “But the more the FAA acts like a big daddy, behemoth government agency that is imposing excessive restrictions, the more the feeling of ‘I’m an American, they can’t tell me what to do’ kicks in. And that’s a real danger for the FAA.”

Plenty of drone users are going ahead without waiting for the agency.

“A lot of our members would like to start businesses using this technology,” said Timothy Reuter, the founder of the Drone User Group Network in Washington. “Some of them are waiting for the regulations to open up. Others, honestly, aren’t.”

The FAA says it’s committed to ensuring that its drone regulations protect public safety.

“The rulemaking process is deliberative and comprehensive,” the agency said in a statement Friday that referred to drones by the FAA’s preferred term, “Unmanned Aircraft Systems.”

(Also on POLITICO: Full technology policy coverage)

“Because UAS is an emerging technology, we want to ensure that we get it right and that we do not increase risk in the world’s safest aviation system,” the FAA added. “We expect to publish the small UAS proposed rule for public comment later this year.”

The agency probably will eventually issue two rules: one for drones less than 55 pounds, which are likely to fly under 400 feet, and one for heavier drones, which are likely to share airspace with manned aircraft.

Most of the explosion in drone use has come with the cheaper small drones, which typically remain in sight of the operator the entire time they’re in flight. The larger drones, which can resemble the military’s famous Predators, often require an airfield to take off and aren’t typically owned by individuals.

It’s not clear exactly what regulations the FAA will propose. The agency could require drone operators to register, pay fees or go through safety training. It could also place restrictions on drone use for safety reasons.

(Also on POLITICO: Dianne Feinstein spots drone inches from face)

But in the meantime, the FAA is sticking to the stance it’s held since 2007 — that using drones for commercial purposes is illegal.

The agency said it has sent out 12 warning letters to drone operators but also handles incidents with verbal warnings. In one case, the agency issued a $10,000 fine to a Swiss drone operator who it said was operating “recklessly” when flying at the University of Virginia in 2011. The case is under appeal and is before a National Transportation Safety Board administrative court.

While a 2010 law set a September 2015 date for the FAA to safely allow commercial drone flights, the Transportation Department’s inspector general told a House panel this month that it’s unlikely the agency would meet the deadline. (The FAA has approved one use of commercial drones: ConocoPhillips is using a large drone in the Arctic to monitor icebergs.)

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