White House directs Pilot Program

This came out yesterday from the White House. I am very supportive of this Pilot Program and I expect it will be a big step toward integration.  Industry asked for this type of pilot program and is happy with the memo.

I’m happy to hear the President and I are on the same page!

Another step toward integration. Check out my presentation, Bullets Balloons and Bounds, which didn’t link properly before.

I am writing from a doctor’s waiting room and must keep this brief, but as usual my friend Jon Rupprecht writes a great analysis which I second in almost every respect.

The White House
Office of the Press Secretary
For Immediate Release  October 25, 2017
Presidential Memorandum for the Secretary of Transportation

MEMORANDUM FOR THE SECRETARY OF TRANSPORTATION

SUBJECT: Unmanned Aircraft Systems Integration Pilot Program

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. Policy. It shall be the policy of the United States to promote the safe operation of unmanned aircraft systems (UAS) and enable the development of UAS technologies for use in agriculture, commerce, emergency management, human transportation, and other sectors. Compared to manned aircraft, UAS provide novel, low cost capabilities for both public and private applications. UAS present opportunities to enhance the safety of the American public, increase the efficiency and productivity of American industry, and create tens of thousands of new American jobs.

The private sector has rapidly advanced UAS capabilities to address the needs of recreational, commercial, and public users. To promote continued technological innovation and to ensure the global leadership of the United States in this emerging industry, the regulatory framework for UAS operations must be sufficiently flexible to keep pace with the advancement of UAS technology, while balancing the vital Federal roles in protecting privacy and civil liberties; mitigating risks to national security and homeland security; and protecting the safety of the American public, critical infrastructure, and the Nation’s airspace. Well-coordinated integration of UAS into the national airspace system (NAS) alongside manned aircraft will increase the safety of the NAS and enable the authorization of more complex UAS operations.

The Federal Aviation Administration (FAA) has taken steps to integrate UAS into the NAS at specific test sites and has issued operational requirements for small UAS operations in the NAS. Further integration will require continued private-sector cooperation and the involvement of State, local, and tribal governments in Federal efforts to develop and enforce regulations on UAS operations in their jurisdictions. Input from State, local, tribal, and private-sector stakeholders will be necessary to craft an optimal strategy for the national management of UAS operations. A coordinated effort between the private sector and among these governments will provide certainty and stability to UAS owners and operators, maximize the benefits of UAS technologies for the public, and mitigate risks to public safety and security.

Sec. 2. UAS Integration Pilot Program.

(a) Within 90 days of the date of this memorandum, the Secretary of Transportation (Secretary), in consultation with the Administrator of the FAA (Administrator), shall establish a UAS Integration Pilot Program (Program) to test the further integration of UAS into the NAS in a select number of State, local, and tribal jurisdictions.

(b) The objectives of the Program shall be to:

(i) test and evaluate various models of State, local, and tribal government involvement in the development and enforcement of Federal regulations for UAS operations;

(ii) encourage UAS owners and operators to develop and safely test new and innovative UAS concepts of operations; and

(iii) inform the development of future Federal guidelines and regulatory decisions on UAS operations nationwide.

Sec. 3. Implementation. (a) To implement the Program, the Secretary or the Administrator, as appropriate, shall:

(i) solicit proposals from State, local, and tribal governments to test within their jurisdictions the integration of civil and public UAS operations into the NAS below 200 feet above ground level, or up to 400 feet above ground level if the Secretary determines that such an adjustment would be appropriate;
(ii) select proposals by State, local, and tribal governments for participation in the Program according to the criteria listed in subsection (b) of this section;

(iii) enter into agreements with the selected governments to establish the terms of their involvement in UAS operations within their jurisdictions, including their support for Federal enforcement responsibilities; describe the proposed UAS operations to be conducted; and identify the entities that will conduct such operations, including, if applicable, the governments themselves; and

(iv) as necessary, use existing authorities to grant exceptions, exemptions, authorizations, and waivers from FAA regulations to the entities identified in the agreements described in subsection (iii) of this section, including through the issuance of waivers under 14 CFR Part 107 and Certificates of Waiver or Authorization under section 333 of the FAA Modernization and Reform Act of 2012 (FMRA) (Public Law 112 95).

(b) In selecting proposals for participation in the Program under subsection (a) of this section, the Secretary shall consider:

(i) overall economic, geographic, and climatic diversity of the selected jurisdictions;

(ii) overall diversity of the proposed models of government involvement;

(iii) overall diversity of the UAS operations to be conducted;

(iv) the location of critical infrastructure;

(v) the involvement of commercial entities in the proposal, and their ability to advance objectives that may serve the public interest as a result of further integration of UAS into the NAS;

(vi) the involvement of affected communities in, and their support for, participating in the Program;

(vii) the commitment of the governments and UAS operators involved in the proposal to comply with requirements related to national defense, homeland security, and public safety, and to address competition, privacy, and civil liberties concerns; and

(viii) the commitment of the governments and UAS operators involved in the proposal to achieve the following policy objectives:

(A) promoting innovation and economic development;

(B) enhancing transportation safety;

(C) enhancing workplace safety;

(D) improving emergency response and search and rescue functions; and

(E) using radio spectrum efficiently and competitively.

(c) Within 180 days of the establishment of the Program, the Secretary shall enter into agreements with State, local, or tribal governments to participate in the Program, with the goal of entering into at least 5 such agreements by that time.

(d) In carrying out subsection (c) of this section, the Secretary shall select State, local, or tribal governments that plan to begin integration of UAS into the NAS in their jurisdictions within 90 days after the date on which the agreement is established.

(e) The Secretary shall consider new proposals for participation in the Program up to 1 year before the Program is scheduled to terminate.

(f) The Secretary shall apply best practices from existing FAA test sites, waivers granted under 14 CFR Part 107, exemptions granted under section 333 of the FMRA, the FAA Focus Area Pathfinder Program, and any other relevant programs in order to expedite the consideration of exceptions, exemptions, authorizations, and waivers from FAA regulations to be granted under the Program, as described in subsection (a)(iv) of this section.

(g) The Secretary shall address any non compliance with the terms of exceptions, exemptions, authorizations, waivers granted, or agreements made with UAS users or participating jurisdictions in a timely and appropriate manner, including by revoking or modifying the relevant terms.

Sec. 4. Coordination.

(a) The Administrator, in coordination with the Administrator of the National Aeronautics and Space Administration, shall apply relevant information collected during the Program and preliminary findings to inform the development of the UAS Traffic Management System under section 2208 of the FAA Extension, Safety, and Security Act of 2016 (Public Law 114-190).

(b) The Secretary, in coordination with the Secretaries of Defense and Homeland Security and the Attorney General, shall take necessary and appropriate steps to:

(i) mitigate risks to public safety and homeland and national security when selecting proposals and implementing the Program; and

(ii) monitor compliance with relevant laws and regulations to ensure that Program activities do not interfere with national defense, homeland security, or law enforcement operations and missions.

(c) The heads of executive departments and agencies with relevant law enforcement responsibilities (Federal law enforcement agencies), including the Attorney General and the Secretary of Homeland Security, shall develop and implement best practices to enforce the laws and regulations governing UAS operations conducted under the Program.

(d) In carrying out the responsibilities set forth in subsection (c) of this section, the heads of Federal law enforcement agencies shall coordinate with the Secretaries of Defense and Transportation, as well as with the relevant State, local, or tribal law enforcement agencies.

(e) In implementing the Program, the Secretary shall coordinate with the Secretaries of Defense and Homeland Security and the Attorney General to test counter UAS capabilities, as well as platform and system-wide cybersecurity, to the extent appropriate and consistent with law.

Sec. 5. Evaluation and Termination of UAS Integration Pilot Program.

(a) The Program shall terminate 3 years from the date of this memorandum, unless extended by the Secretary.

(b) Before and after the termination of the Program, the Secretary shall use the information and experience yielded by the Program to inform the development of regulations, initiatives, and plans to enable safer and more complex UAS operations, and shall, as appropriate, share information with the Secretaries of Defense and Homeland Security, the Attorney General, and the heads of other executive departments and agencies.

(c) After the date of this memorandum and until the Program is terminated, the Secretary, in consultation with the Secretaries of Defense and Homeland Security and the Attorney General, shall submit an annual report to the President setting forth the Secretary’s interim findings and conclusions concerning the Program. Not later than 90 days after the Program is terminated, the Secretary shall submit a final report to the President setting forth the Secretary’s findings and conclusions concerning the Program.

Sec. 6. Definitions. As used in this memorandum, the next stated terms, in singular and plural, are defined as follows:

(a) The term “unmanned aircraft system” has the meaning given that term in section 331 of the FMRA.

(b) The term “public unmanned aircraft system” has the meaning given that term in section 331 of the FMRA.

(c) The term “civil unmanned aircraft system” means an unmanned aircraft system that meets the qualifications and conditions required for operation of a civil aircraft, as defined in 49 U.S.C. 40102.

Sec. 7. General Provisions.

(a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof;

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals; or

(iii) the conduct of public aircraft operations, as defined in 49 U.S.C. 40102(a)(41) and 40125, by executive departments and agencies, consistent with applicable Federal law.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The Secretary is authorized and directed to publish this memorandum in the Federal Register.

DONALD J. TRUMP

 

Chinese UAS Fill the Void

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:

  • “Weapons makers have been buoyed by President Donald Trump’s statements of support for U.S. manufacturing and for a $110 billion arms sale to Saudi Arabia that includes some items that were blocked by the Obama administration. The administration in June approved the sale to India of 22 Guardian drones, an unarmed maritime version of the Reaper.
  • Bart Roper, executive vice president of General Atomics Aeronautical Systems Inc., said the U.S. is ceding the drone market to Chinese and others ‘due to obsolete and arbitrary restrictions.’
  • He expressed hope the Trump administration would revise policy to better promote U.S. industry.
  • In April, 22 members of Congress—led by Rep. Duncan Hunter, who represents the San Diego district not far from where General Atomics is based—asked the administration to approve Reaper exports to Jordan and the U.A.E. They argued that the Arab allies in the fight against Islamic State are buying Chinese drones instead, and that export approval would save U.S. jobs.”

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.

Apple’s Self-Made No Fly Zone

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.

 

 

 

 

 

A Big News Week for UAS

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 1930’s era Lycoming engine that I always check out at Udvar Hazy, since it is a basic but reliable engine similar to those still made today.
The Beechcraft Muskateer I took lessons on.

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 lands43 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.

 

 

 

 

Summer Fun

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:

https://www.youtube.com/watch?time_continue=7&v=d-wnDCJ3rgU

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.”

Drones and Gnomes.

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!

Waving at the Drone!

  

Drones in the Ocean State Housing Market!

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.

 

I also am sharing a link to his company’s Facebook page.  The cover photo is actually one of mine – taken during an on-the-water photo lesson with Onne van der Wal a few years back.

News Round-up June 15, 2017 and a Flashback

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.

My 10 year old son with a 3DR Solo controller in his hand. The header picture is him with our three year old. Both are on the beach at Cape May, New Jersey.

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!

 

Proposed Senate Legislation: Drone Federalism Act

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 dave@dukeofdrones.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).

  1. I, unlike many drone enthusiasts that I follow, am generally supportive of this bill.  I am suspicious of the motives of Senators Feinstein and Blumenthal, who I’m surprised are willing to return any power to the states, but am encouraged by the strong Republican support too.  (I was just in a Senator Lee’s home state)

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):

      1. Absolute Ownership Theory
        1. Lord Coke’s old ad coelum maxim – owner of the land owns the airspace above it without limit.
        2. Most threatening to the aviation industry – never adopted by any court as applied to aviation cases.
      2. Public Easement Theory
        1. Owner owns the airspace above his property, but it is subject to a public easement to aviation traffic.
        2. Flight over the property is only actionable in the event the easement is misused (“unreasonable interference”)
      3. Privilege of Flight Tort Theory
        1. Tort based the­ory – 2nd modification of the ad coelum rule (differs from 2 in legal theory only)
        2. The land­ owner is once again recognized as the owner of all the airspace above his property.
        3. When an aircraft traverses his property, a trespass has occurred, but this trespass is privileged.
          1. The privilege acts as a defense to the claim of trespass.
          2. The property owner will only prevail when it is found that the privilege was abused or exceeded.
      4.  Ownership to a Fixed Height Theory
        1. This theory is the first of two variations of the “zone” concept.
        2. The extent of a landowner’s property rights to airspace is strictly defined by a horizontal boundary, which divides airspace into property “zones.”
          1. All air­ space above the boundary, a fixed altitude above ground level, is public property.
          2. All airspace below the boundary is the property of the landowner.[1]
        3. This boundary is usually defined by proponents of this theory as the altitudes designated by Congress as “naviga­ble airspace.”
      5. Possible Effective Possession Theory
        1. Under this approach, a landowner’s airspace property rights are limited to a fixed height of effective posses­sion. This height depends on the nature of the land and its possible uses.
        2. For example, this height limit would not allow for the building of the Empire State Building in the middle of a Kansas wheat field.
        3. A very effective argument could be made, however, for fixing this height limit to allow for the construction of a grain silo or similar structures that are common to that type of land.
        4. This twist on the “zone” concept forces the court to determine just where the property rights boundary exists in each case.
        5. Once this is done, the application of this theory is identical to that of the “Ownership to a Fixed Height Theory.” All airspace above the possible effective possession of the landowner  is public property  to which the owner can claim no legal right.
      6.   No Ownership Theory
        1. The most pro-aviation of the six, highly criticized
        2. Provides the landowner rights to only that airspace which is actually occupied.[2]
        3. An overflight is com­pensable only when actual physical damage to the under­lying property has occurred regardless of the altitude flown.
  1. United States v. Causby (the Seminal S. Ct. case on airspace, although more have followed)
    1. Factual Background
      1. In 1942, a sleepy, municipal airport near Greensboro, North Carolina, was leased to the federal government à large military aircraft
      2. Causby’s chicken farm was less than 800 yards from the end of the runway.
        1. Large, four­ motored bombers frequently passed at tree top level over the Causby’s land in considerable numbers (glide path 83 feet up)
        2. Chicken business ruined, lost sleep
    1. The Court of Claims found that there had been a taking for which the Causbys were entitled compensation.
      1. The court then concluded that an easement worth $2,000 had been taken, but made no finding as to the specific nature of the easement or its duration.
      2. Supreme Court granted certiorari in order to determine if the Causby’s property had been taken within the meaning of the Fifth Amendment.
    1. The Court’s Rationale
      1. Justice Douglas – Majority opinion
        1. Quickly dis­missed Lord Coke’s ad coelum doctrine as inappropriate to aviation overflight cases.
        2. Also dismissed the Hinman idea that the landowner had no property inter­est in airspace
      2. New test to see if taking (inverse condemnation) occurred
        1. The Court concluded that a property owner owned the “superadjacent” airspace above his property, and an invasion of this airspace should be treated as an actual invasion of the surface.
          1. Did not determine specific level for a taking
          2. Did say that a taking would not occur unless overflights were “so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.”69
          3. Can infer that an interfer­ence with the enjoyment and use of the land occurs when the value of the property has diminished due to the over­ flights.
          4. At a minimum, the landowner owned as much airspace above the ground as could be occupied or used in connection with the land.
        2. Although the Court conceded that the definition of “property” is normally obtained by reference to local law, the Court seemed to consider its opinion as defining airspace property independently from any state definition.
      3. After determining that the Causbys in fact deserved compensation for an easement that had been taken over their property, the Court remanded the case to the Court of Claims for a determination of the nature of the easement.
    1. Analysis of the Decision
      • The Court did not seem to embrace any of the six theories  of airspace explained above
        1. Cited propositions from cases representative of nearly all of these theories.
        2. The ad coelum theory and the Hinman “no ownership” theory were certainly dismissed.
      • The Court did not appear to rule out the “public ease­ment” or “privileged trespass” theories
        1. North Carolina followed these theories, and the Court found them not inconsistent with the holding
        2. The Court’s lack of reference to the abuse of a preexisting privilege or ease­ment, however, leaves these theories of little significance to the airspace as property discussion
      • The Court did seem to adopt the “possible effective possession” theory as the absolute minimum protection to which the landowner was entitled.
      • The Court also addressed the “fixed height” concept.
      • Post-Causby decisions have, for the most part, completely misread the Supreme Court’s analysis.
      • The court had separately stated in dicta that navigable airspace is defined as the “airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority,” which at the time was 1,000 feet – a statement interpreted by later courts to mean that any flights below this specifically defined altitude would be a taking.

[1] 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).

[2] Hinman v. Pacific Air Transp., 84 F.2d at 755.

1272

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

A BILL

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).

A Drone at the Reston Sprint Triathlon 2017

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.

The funky airspace around Salt Lake City, Utah

Here are a few photos (sorry about the selfie, my shirt fell from my backpack and I was not inclined to look for it):

Me at the Summit of Mount Olympus
On the way down, just below the summit of Mount Olympus with the Devil’s Backbone Brewery backpack I won last year during a photo contest with a picture of the wooden kayak I built with my older son (it’s the photo with the can of DB on a paddle – I built the boat from a Nick Schade Chesapeake Light Craft kit but the paddle was handmade by Eric Schade). The backback is a bit scraped up from the rock scramble and salt stained, but it was perfect for the hike!  #DBDAYPACK
The scariest part of the hike – near the summit of Mount Olympus, Utah.



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.

Franz with his DJI controller and note the pro camera with zoom lens at the Reston Sprint Triathlon 2017- he was taking still shots while keeping the drone in the air filming with auto pilot. I give him great props – I have trouble just piloting a drone. He was able to get close shots of finishers with both the UAS and his SLR at the same time, without hitting anyone!
The drone is to the upper left of the finish line.  Reston Sprint Triathlon 2017.
My son wants a drone for Christmas. Thanks Franz! I think he told me about the drone before saying “hi” or “good job.” I swear kids are magnetically attracted to drones… Great way to capture the finish at the Reston Sprint Triathlon 2017!

 

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:

I noted the race location. More on the Morman Temple in a minute.

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…