I was invited to talk Monday about the legal history of airspace regulation at ATCA 2017.
Here are the Powerpoints. These are my work, so please do not duplicate or share without obtaining permission. Thank you!
My concerns relating to overly stringent export controls on UAS have been unfortunately prescient and it is time for the U.S. to lead not only in technological advances, but in policy. The former administration ran its drone program quietly – hopefully this administration will confront the issue head on. In a below the fold front page article in yesterday’s Wall Street Journal (July 18, 2017), Jeremy Page and Paul Sonne write “Unable to by U.S. Drones, Allies Place Orders with China.” The article is subscription-based, so I won’t link to it here. It is a good read and I strongly encourage readers to check it out.
Not only are they more accessible, but Chinese UAS are cheaper. “A Wing Loong, meanwhile, costs about $1 million compared with about $5 million for its U.S.-made counterpart, the Predator, and about $15 million for a Reaper, whose Chinese competition is the CH-5.” And even if our allies can get a U.S. military UAS, they contain numerous restrictions based on the “re-export” concept – which, in short, is the legal concept that the U.S. maintains jurisdiction over the item even after export.
I discuss export controls on UAS in detail in a previous post, so you can read the details there. What is the primary issue in regard to military long-endurance UAS such as the Predator or Reaper is the Missile Technology Control Regime, also discussed at my previous post. Mssrs. Page and Sonne go into the MTCR:
This tracks with an earlier story I wrote about Jordan being denied American UAS shortly after the horrific murder of their pilots at the hands of ISIS.
There needs to be a balance. Part of the goal of the MTCR and export controls in general is to prevent proliferation of means of highly destructive warfare. But on the other hand, we are fighting a daily battle against cyber warfare (and the resultant theft of our technology) and legitimate advances by other countries. They will fill the void if we do not.
I call your attention to an article I discuss in my Drone Law class at Antonia Scalia Law School (at George Mason U.). It’s entitled “Pandora’s box? Drone strikes under jus ad bellum, jus in bello, and international human rights law,” written by Dr. Stuart Casey-Maslen and published by the International Committee on the Red Cross. While I do not agree with all of the conclusions, it raises a number of good points. First, Drone warfare is here to stay. We’ve “opened Pandora’s box” and shown the effectiveness at lower cost of UAS in battle. Second, other countries desperately want to get their hands on UAS so they do not have to rely on us or risk a better-armed enemy state supplied by China. Finally, while not addressed by the author, I argue that his concerns are not new. Whether the railroad and industry in the American Civil War, the repeating rifle in the Spanish-American War, the advances in WWII or NCB weapons, the rules of war must adapt to each technological advance. Drones are a bit different though – the proportionality/discrimination determination is marginally different, but we are not talking about the advance in explosive capability – merely the means of delivery.
If you read through the MTCR, I am confident you will agree that it was written with ballistic missiles capable of delivering warheads in mind, not UAS like the Predator or Reaper. It is a voluntary protocol, not a treaty, so we can deviate, but it is time for the parties to consider how to best address UAS in this new era.
According to one report, Apple Computer is taking its penchant for secrecy to new heights (excuse the pun). Security guards are telling UAV operators that they cannot fly over the new headquarter building.
The article doesn’t go into the legal detail I am interested in, but I’m guessing the guards are on weak ground in some cases and stronger in others.
Commercial operators need to comply with Part 107 or 333. The former, and likely the latter, would require specific permission since the headquarters is a congested, populated area. Hobbiests are another story, however. Recall my post where the FAA’s position is that once a UAV is flying, the he land owner has no say – even the National Park Service.
There is also generally applicable recourse against those engaged in corporate espionage and attempting to steal trade secrets, but that is beyond the scope of this article
No one has forced the issue yet as to private ownership of airspace near the surface but I wouldn’t put it past Apple to try.
In Military News
Textron Systems (whose lines include Lycoming Engines, Bell Helicopters, and Beechcraft – some of my flight training was on an old but trusty Beechcraft Muskateer) has won an IDIQ contract with the Navy to provide contractor-based ISR support through Textron’s Aerosonde UAS. At 80 lbs with a 20 lb payload, mainly focused on ISR components, this falls into the small/medium-sized UAS category. Back in the day (2014 is ancient history in the UAS world), Textron used a 333 exemption to test the Aerosonde at MAAP’s site in Virginia. Here is another article about the DOD’s increasing budget for small-medium size UAS IDIQ contracts.
A little ITAR refresher: It has a range of 140 km but an endurance of 14+ hours, so this should qualify as an MTCR Category II UAS (remember, 300 km range is defined differently for the MTCR than for most marketing applications). The “Purpose-built Lycoming EL-005 engine” is therefore likely ITAR since it wouldn’t qualify under the specially-designed catch and release provisions.
An Israeli SF Reservist who helped co-found Duke Robotics has secured sales to the Israeli IDF of the TIKAD, a hexacopter modified to carry weapons and to be used in Urban Warfare. What makes this so innovative, beside for its agility and ability to keep friendly forces away from fighting in tight urban areas and IED’s? How they have overcome Newton’s Third Law (every action has an equal and opposite reaction) – “through a system of flexibly connected plates, the TIKAD distributes the backward momentum in a way that keeps the vehicle stationary in the air.” They have been recognized by the DOD for innovation in counter-terrorism and we might see a contract with the U.S. military in the future. Stay tuned!
In Civil UAS News:
A story out of Arizona has been circulating about a man arrested and charged for flying his photography UAS over a wildfire. He was charged with violating a year old Arizona law (Arizona Law 13-3729) that makes it illegal to interfere with emergency services and he allegedly caused the grounding of 14 emergency aircraft who were at risk due to his UAS’s presence. The article references FAA restrictions, and while I can’t full up the NOTAM since it has since expired, there does appear to have been one in effect at the time. Even if there was not a TFR, FAA could go after him – and very well might still – for reckless operation if he was endangering other aircraft or personnel/property on the ground (it is also contrary to a generally applicable federal regulation prohibiting the interference with a fire on public lands – 43 CFR §9212.1(f)).
Students at MIT have developed a gasoline powered (5 HP) UAS that can carry 10-20 pounds of telecommunications equipment for up to 5 days and has a ceiling of 15,000 ft. It is apparently relatively inexpensive and is designed to bring temporary telecommunications services in disaster areas. They are depicted in the cover photo for this post.
The first meeting of the FAA’s UAS Identification and Tracking Aviation Rulemaking Committee (ARC) on June 21-23 advanced key policies of concern to the FAA, industry and law enforcement.
Here is an interesting twist of the use of UAS over wildlife, which I have reported on extensively and is generally beneficial. In Australia – and by extension its territorial waters (generally 3 nm) – one must have a permit to use a UAS in conjunction with wildlife. The Australian Broadcasting Network, warned its readers about using drones to view the whale migrations. While there is no comparable law in the United States, it did remind me of my early days of Op Law in the Navy. The Marine Mammals Protection Act (MMPA), enforced by the EPA and protecting all Marine Mammals, makes it a crime to “take” a marine mammal is U.S. territorial waters or by a U.S. citizen on the high seas. You might think you are safe, because how is your DJI quadcopter going to “take” a whale, but think again. A “taking” is legally defined to include harassing a marine mammal – which could easily be construed as encompassing your UAS running out of batteries and landing on it or buzzing to close. Do not take this law lightly!
A drone video of fireworks at Montauk, or as locals say “The End.” I guess the word did not get around about drones and fireworks, but fortunately no one got hurt and there are no negative Fourth of July drone stories that I have found.
Before I explain why there is a picture of a swim team above, just a reminder that drones and fireworks don’t mix. While it gives a nice view, I think the title of the YouTube below explains why this is not a good idea:
I posted a couple years ago about Sydney’s fireworks being filmed from a UAS. But I have to image there was more thought put into a professional production in conjunction with a major broadcaster. Plus, ABC was a ways away and above the fireworks…they weren’t “Flying a Drone into Exploding Fireworks.”
On another summer-related note, my boys had their swim team picture last night for the Hiddenbrook Hurricanes. I’ve said before that nothing gets a kid’s attention like a drone. That isn’t always a good thing, but in this case it was. You can image how hard it was to get this many kids (and my for a time screaming 3 year old) ready for a team photo. But out came the drone, and every child was captivated and ready to get their picture taken!
Today’s post will be brief so you can enjoy the great aerial photography courtesy of a friend from my New England days, Donnie Bennett. He is a realtor up in the Ocean State (as well as DJ, talk show host, skilled photographer, and all-around great guy).
As you can probably tell from his website, he finds ways to innovate for his clients. So I shouldn’t have been surprised when I heard he got into aerial photography. Given his skill and the natural beauty of (much of) Rhode Island, it is sure not to disappoint.
I enjoyed hearing how he has used the Part 107 requirements regarding operating over others to his advantage. He provides flyers to neighbors and attempts to meet them – both to explain what he is doing and sharing his business. There has been a lot of talk about how to address some of the thornier issues regarding using UAS in populated areas and I think Donnie hit it on the head – you can’t legislate courtesy.
Not to be outdone, Zillow has an update for Real Estate agents who want to get into the aerial photo game too. Except for one comment, there is no mention of insurance, however. This is a glaring lapse, in my opinion. I’ve written about insurance options for UAS a few times and I encourage those using UAS to look closely and get legal advice about their options.
Today is my son’s 10th birthday and it’s been almost two years since we had a great vacation down in Cape May and I took these photos with a 3DR Solo, so hence the cover photo.
The Phoenix ACE RAD is reportedly the first Radiation Monitoring UAV out on the market. The detection payload components are being offered by BNC Scientific. I wonder how the components have been designed to limit radiation effects on the hardware, but that is likely export controlled and can’t be published online.
A new twist on firefighting drone development – a UAS that can hold a firefighting hose over a fire. This concept is well over the FAA’s Part 107 limitations but should be able to get a public use COA, if it makes it into development. The article discusses technical issues with the current numbers.
In Military news:
A mine-detecting UAS is being developed through the Office of Naval Research based on a commercially-available airframe with a customized “magnetometer sensor suite—which has an extensive detection range and uses complex algorithms to differentiate between various types of objects.”
Nasdaq reports that Boeing subsidiary Insitu Won an $8M Bid for operational-use Blackjack UAS from the U.S. Naval Air Systems Command, Pax River, MD with USMC funds for use by the USMC.
A Washington Post article about ISIS drones. Further East, on the better side of news, a top member of the Haqqani terrorist network has reportedly been hit in a UAS strike.
The Israeli Air Force has been logging record flight hours and is planning the future of their UAS operations.
I’ll finish with a video. One someone took of Muscle Beach – this beach in California has a history of which I was not aware!
On May 25, 2017 (coincidentally my Birthday), S.1272 – Drone Federalism Act of 2017 was introduced in the Senate for Consideration. It would amend Section 336 of the FAA Modernization and Reform Act of 2012 and return to the states certain powers that have been claimed by the FAA. I’ve bolded/italized the most pertinent changes proposed by the bill.
This is certainly controversial, and I’d love to get feedback. Email it to me at email@example.com. This will be a subject of discussion at my Drone Law class at George Mason Law this week, so I’ll update with thoughts from my students!
I am also linking to an article written by two gentlemen from the Heritage Foundation, of which I am a fan. Entitled “Drones Are About to Revolutionize Our World. This Bill Will Let America Lead the Drone Economy,” and written by Jason Snead and John-Michael Seibler, it supports the return of recognized police powers to the states (the cover photo for this post is a great shot from their article and credited to iStock Photos).
Section 2(b)(1) is the most important aspects of the bill. It would allow states to “to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted.” Section 2(b)(2) goes on to state that reasonable restrictions include “… (E) Prohibitions on careless or reckless operations. (F) Other prohibitions that protect public safety, personal privacy, or property rights, or that manage land use or restrict noise pollution.”
It’s a great start, but I think we still need to work on the language of (E) and (F), which are very broad. While states should be allowed to experiment, hopefully we’ll get some better industry feedback on how to address these two sections. Of most concern is that both the FAA and states deal with reckless operations and while (F) is laudable in theory, the bill should explicitly provide protections for operations. Otherwise, states could use (F) to issue virtual blanket prohibitions.
Here is a little history regarding the legal theories on airspace. The bill seems to accept a theory between the “Ownership to a Fixed Height” theory and the “Possible Effective Possession” theory. What isn’t accounted for is the differences between rural, suburban, and urban areas. The 200’ rule is a bit too rigid for nation-wide application.
Historically, there have been six Separate Approaches Airspace Ownership, as adapted from an outline for a class I taught (my apologies for the formatting, I’m still figuring out the outline feature in WordPress):
 See, e.g., Smith v. New England Aircraft Co., 270 Mass. 511, 170 N.E. 385 (1930); Burnham v. Beverly Airways, 311 Mass. 628, 42 N.E.2d 575 (1942).
 Hinman v. Pacific Air Transp., 84 F.2d at 755.
To preserve State, local, and tribal authorities and private property rights with respect to unmanned aircraft systems, and for other purposes.
IN THE SENATE OF THE UNITED STATES
May 25, 2017
Mrs. Feinstein (for herself, Mr. Lee, Mr. Blumenthal, and Mr. Cotton) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation
To preserve State, local, and tribal authorities and private property rights with respect to unmanned aircraft systems, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. Short title.
This Act may be cited as the “Drone Federalism Act of 2017”.
SEC. 2. Preservation of State, local, and tribal authorities with respect to unmanned aircraft systems.
(a) Scope of preemption for civil unmanned aircraft regulations.—In prescribing regulations or standards related to civil unmanned aircraft systems, the Administrator shall—
(1) define the scope of the preemptive effect of such regulations or standards pursuant to section 40103 or 41713 of title 49, United States Code, which shall be limited to the extent necessary to ensure the safety and efficiency of the national airspace system for interstate commerce; and
(2) preserve, to the greatest extent practicable, legitimate interests of State, local, and tribal governments, including—
(A) protecting public safety;
(B) protecting personal privacy;
(C) protecting property rights;
(D) managing land use; and
(E) restricting nuisances and noise pollution.
(b) Reserved powers.—
(1) IN GENERAL.—In prescribing regulations or standards related to civil unmanned aircraft systems, the Administrator shall ensure that the authority of a State, local, or tribal government to issue reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system that is operated below 200 feet above ground level or within 200 feet of a structure is not preempted.
(2) REASONABLE RESTRICTIONS.—For purposes of paragraph (1), reasonable restrictions on the time, manner, and place of operation of a civil unmanned aircraft system include the following:
(A) Limitations on speed.
(B) Prohibitions or limitations on operations in the vicinity of schools, parks, roadways, bridges, or other public or private property.
(C) Restrictions on operations at certain times of the day or week or on specific occasions such as during parades or sporting events.
(D) Prohibitions on operations while the operator is under the influence of drugs or alcohol.
(E) Prohibitions on careless or reckless operations.
(F) Other prohibitions that protect public safety, personal privacy, or property rights, or that manage land use or restrict noise pollution.
SEC. 3. Preservation of private property rights.
(a) Affirmation of applicability of constitutional takings clause to Federal Aviation Administration regulations.—In prescribing regulations or standards related to civil unmanned aircraft systems, the Administrator shall not authorize the operation of a civil unmanned aircraft in the immediate reaches of the airspace above property without permission of the property owner.
(b) Affirmation of applicability of constitutional takings clause absent Federal Aviation Administration regulations.—Section 336(a) of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note) is amended—
(1) in paragraph (4), by striking “; and” and inserting a semicolon;
(2) in paragraph (5), by striking the period at the end and inserting “; and”; and
(3) by adding at the end the following: “(6) when flown in the immediate reaches of the airspace above property (as defined in section 3(c) of the Drone Federalism Act of 2017), the operator has the permission of the property owner.”.
(c) Definition.—In this section, the term “immediate reaches of the airspace above property”, with respect to the operation of a civil unmanned aircraft system, includes—
(1) any area within 200 feet above the ground level of the property;
(2) any area within 200 feet above any structure on the property; and
(3) any area where operation of the aircraft system could interfere with the enjoyment or use of the property.
SEC. 4. Pilot program on Federal partnerships.
(a) In general.—Not later than one year after the date of the enactment of this Act, the Administrator shall enter into agreements with not more than 10 State, local, or tribal governments to establish pilot programs under which—
(1) the Administrator shall provide technical assistance to such governments in regulating the operation of civil unmanned aircraft systems, including through the use of the latest available technologies; and
(2) the Administrator and such governments shall coordinate efforts with respect to the enforcement of regulations relating to the operation of civil unmanned aircraft systems.
(b) Selection.—In selecting among State, local, and tribal governments for purposes of establishing pilot programs under subsection (a), the Administrator shall seek to enter into agreements with—
(1) governments that vary in their size and intended approach to regulation of civil unmanned aircraft systems; and
(2) not less than one State government, not less than one county government, not less than one city government, and not less than one tribal government.
(c) Unmanned aircraft systems traffic management system.—The Administrator shall coordinate with Administrator of the National Aeronautics and Space Administration to ensure that participants in pilot programs established under subsection (a) are consulted in the development of the unmanned aircraft systems traffic management system under subsection (a) section 2208 of the FAA Extension, Safety, and Security Act of 2016 (Public Law 114–190; 49 U.S.C. 40101 note) and the pilot program under subsection (b) of that section.
(d) Report required.—Not later than 2 years after establishing the pilot programs required by subsection (a), the Administrator shall submit to Congress, and make available to the public, a report identifying best practices for State, local, and tribal governments to regulate the operation of civil unmanned aircraft systems and to collaborate with the Federal Aviation Administration with respect to the regulation of such systems.
SEC. 5. Rule of construction.
Nothing in this Act shall be construed—
(1) to diminish or expand the preemptive effect of the authority of the Federal Aviation Administration with respect to manned aviation; or
(2) to affect the civil or criminal jurisdiction of—
(A) any Indian tribe relative to any State or local government; or
(B) any State or local government relative to any Indian tribe.
SEC. 6. Definitions.
In this Act:
(1) ADMINISTRATOR.—The term “Administrator” means the Administrator of the Federal Aviation Administration.
(2) CIVIL.—The term “civil”, with respect to an unmanned aircraft system, means that the unmanned aircraft is not a public aircraft (as defined in section 40102 of title 49, United States Code).
(3) INDIAN TRIBE.—The term “Indian tribe” has the meaning given that term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).
(4) LOCAL GOVERNMENT.—The term “local”, with respect to a government, means the government of a subdivision of a State.
(5) STATE.—The term “State” means each of the several States, the District of Columbia, and the territories and possessions of the United States.
(6) TRIBAL GOVERNMENT.—The term “tribal”, with respect to a government, means the governing body of an Indian tribe.
(7) UNMANNED AIRCRAFT; UNMANNED AIRCRAFT SYSTEM.—The terms “unmanned aircraft” and “unmanned aircraft system” have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).
This post is on more of a personal note, but drones came unexpectedly into a situation and I wanted to share in a somewhat random post. You’ll have to read on to find out what this all had to do with drones!
On Sunday I ran the Reston Sprint Triathlon in Reston, Virginia. I was a bit sick and had pulled/strained/somehow injured my quads while hiking Mount Olympus last week during a trip to Salt Lake City (as a complete tangent, I just read an article about how working out “in nature” is great for both mind and body, so hopefully more hikes are in store in Western Virginia). To keep it at least marginally about drones, here is a map of the airspace around Salt Lake City – I did see small general aviation (manned) aircraft below me as I was hiking.
Here are a few photos (sorry about the selfie, my shirt fell from my backpack and I was not inclined to look for it):
Back to the race…there was a drone at the finish line! It was being controlled by Franz G Photography, and although he hasn’t posted pictures from the 2017 race yet, I have included a link to his 2016 race photos. Here are a couple photos of his DJI Phantom and Franz. I’ll spare you any post-race photos of me, but I emailed him and will update this page once his drone video/photos are available.
On a quick legal note, I’m not sure if Franz is operating under 333 or Part 107, but it isn’t exactly easy in the DC area. Here is a map of the DC area:
It’s so close that I can’t tell if we’re within Dulles’ Class B airspace. The race was outside of the FRZ but inside of the SFRA so NOTAM 6/1117 applies – so one needs to be operating under either a 333 exemption for Part 107 (The FAA’s website still links to FDC 6/2062, which is basically identical except for the Part 107 language but the website does say between 15-30 nm of DCA that UAS operations are permitted with limitations).
While writing about this, I came across a video that is worth one final tangent. You’ll see on the map above that the Mormon Temple north of DC is prominently marked. The Jesus Christ Church of Latter Day Saints’ temple in SLC (often referred to as “Mormons”) is also the center of Salt Lake City (the city was founded as the Mormon’s went west and the geographic center of the city’s grid) so I clicked through to a link of a UAS video of the DC LDS temple. It is stunning.
Updates to follow…
A story appropriate for this special day:
LaMar’s Donuts, appropriately from the Mile High City and just days before National Donut Day, delivered donuts to the city’s mayor. Check out a video about the delivery here:
Drone Dispatch performed the delivery on behalf of LaMar’s, and in the video they state that it was all done legally. Based on their website, I’m assuming they are operating under Part 107, but I’ve reached out to them to find out more. Since Denver’s airport is well outside of the city, I believe they are operating in Class G airspace, but it is clearly a congested area and over people so a waiver under §§ 107.200 and 107.205 of the §107.39 (Operation Over People) provision would have been required. Note, however, that they likely also needed prior authorization from ATC because they are within the “lateral boundaries of the surface area of Class E airspace designated for an airport” under §107.41. I’m assuming that given the short distance of the flight (less than a mile as the crow flies, if from LaMar’s on 6th to City Hall), that they had eyes on the UAS the entire time IAW §107.
Also, remember that §107.23(b) allows objects to be dropped as long as it does not create an “undue hazard to persons or property.” However, from the video it appears that a Drone Dispatch employee actually took the bag from the drone, so it wasn’t actually “dropped.” (As a side note, I’m curious why the FAA didn’t use the same language as in § 91.15 “No pilot in command of a civil aircraft may allow any object to be dropped from that aircraft in flight that creates a hazard to persons or property. However, this section does not prohibit the dropping of any object if reasonable precautions are taken to avoid injury or damage to persons or property.” It seems to have the same legal effect…any insight out there, please send me an email).
With AUVSI’s XPONENTIAL out in Denver next year, hopefully LaMar’s makes a delivery and, if I’m able to make it, I can taste them for myself!