I’m out in San Diego working hard but also enjoying their version of “winter” (highs in the upper 60’s – this is not a complaint by any stretch of the imagination). I’m hoping to get out to Torrey Pines this weekend, so I’ve included a drone video of this beautiful park. It made me think that I should write about UAS in San Diego.
I’ll start with invasion of privacy, since that is hot news in the press. California has some of the toughest invasion of privacy laws in the United States. In the most basic sense, you can’t trespass to get a picture of someone. This predates UAS, since the state has attempted to limit paparazzi for decades, but now drones allow you to take pictures without physically trespassing. A well-known case in the early 90’s illustrates the limits of the law. Barbara Streisand sued a company making a photographic survey of the California coastline, including her oceanside mansion, but lost because there was nothing offensive or invasive about the distant photograph. This was a manned flight, but now Californians, not just movie stars, are worried about drones invading their privacy.
In response, a bill was passed last year to amend California’s invasion of privacy law. It is now illegal to make a recording with a device (i.e.: a drone) that is “offensive to a reasonable person,” of a person “engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy,” when the “image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.” (Cal. Civil Code §1708.8(b)). In layman’s terms, if you can’t get the picture without using a drone, you are violating the law – even if you are not actually trespassing. One who violates this provision is liable for damages to the aggrieved party and a civil fine of between $5,000 and $50,000!
California also has other bills pending. One that would have restricted the ability of law enforcement to use UAS was vetoed by the governor last year . Two similar bills have been introduced this year and are under consideration. Assemblyman Jeff Gorell, who introduced the legislation that was vetoed, makes a good point. It is important to pass balanced UAS legislation before more dramatic action, such as a full ban, occurs.
San Diego County has a particular interest in UAS. The area is a hotbed of defense contracting, which includes General Atomics and Northrop Grumman, makers of the Predator/Reaper and Global Hawk, respectively. The Union-Tribune article also cites a National University System Institute for Policy Research (based in San Diego) study from 2011 that found the UAS industry added $1.3 billion and more than 7,000 jobs to the county’s economy.
I wrote previously about AeroVironment, which had been granted permission by the FAA to use its Puma UAS to survey BP assets in Prudhoe Bay, Alaska. The authorization take the form of a restricted type certificate, a broader but more difficult to obtain authorization than the 333 exemptions. AeroVironment is based in Southern California and can boast that the first over Prudhoe Bay flight occurred on Sunday January 18th!
It is great to see an area’s economy benefitting from UAS and I hope San Diego can continue to develop this technology.
(Note: the featured image on the home page, also found below, is of Del Mar, CA from a Drone. It is from a drone photo website http://www.dronestagr.am.)
On Monday February 23rd, On Point with Tom Ashbrook had a segment entitled “All-American Drones.” You can listen to the podcast and review the comments from listeners by clicking on the link, but I will summarize it below. To readers of Droning On, most of the topics will not be new, but it is good to see what others are saying on the issue.
Mr. Ashbrook’s guests were as follows:
Jack Nicas, aviation reporter for The Wall Street Journal
Michael Drobac, executive director of the Small Unmanned Aerial Vehicle Coalition
Gregory McNeal, professor of law and public policy at Pepperdine University
Mr. Nicas wrote an article last Friday in the Wall Street Journal entitled “Drone Ban? Corporations Skirt Rules,” which is self-explanatory. He started off the segment by discussing some of the uses to which drones are already being put in the United States and abroad.
Drones are being used in small to medium-sized farming to monitor crops and collect data for a new technique called “Precision Agriculture.” The draft rules from the FAA would still preclude their use on large farms because of the line-of-sight rules.
Construction is another area in which drones are being put to use. Construction companies have been unable to collect desired data about their site progress due to the pace of construction, but UAS can fly over the site every day to create three-dimensional models. These models can be laid over the site plans to determine if the progress is as planned.
Mr. Nicas also addressed frequent headline news – Delivery drones from Amazon. This would still be prohibited, both because of the line-of-sight requirements and a prohibition on external loads. He was relatively understanding of the FAA’s slow progress, given the increase in air traffic that drones will bring about. He was also happy because many in the industry were worried that the FAA would propose manned aircraft-like requirements (including aircraft and pilot certification).
As I’ve addressed, the FAA is hesitant because of technological limitations, particularly regarding Sense and Avoid. He did mention a number of companies that are working on Sense and Avoid technology. In addition to General Atomics’ DRR technology and Honeywell working with NASA, he mentioned Intel, Qualcomm, and numerous start-ups. Industry believes they will have Sense and Avoid technology in place by the time the rules are finalized (likely 2017).
Jeff Bezos, CEO and founder of Amazon, was on with Charlie Rose of CBS and in December 2013 they expected to have deliveries by drones accomplished within 30 minutes!
Michael Drobac was excited with the proposed rules. In particular, he was happy that pilot certification will not be required. As he put it, “what does a Cessna pilot know about UAS?” However, he said we are far behind other nations and the proposed rules are not sufficiently elastic for commercial use.
Mr. Drobac discussed a rancher near Telluride who likes using a drone to survey her cows, saving her many trips up the hill to do the same manually. He also discussed the debate on Capitol Hill, where the issue may be forced with legislation. UAS opinion is not falling along party lines, however: Senator Schumer (D, New York) says he will consider introducing legislation if the FAA will not reconsider their line-of-sight stance, while Senator Feinstein (D, California) wants to see more restrictions.
Mr. McNeal, who I’ve mentioned previously, started by discssing the economic dynamic of drones. He responded to a question from a caller by saying that Amazon must clearly see a market opportunity if they are investing millions and hiring Mr. Drobac. He also mentioned other opportunities, such as in bridge and cell tower inspections, noting the higher than average fatality rate among the industry.
A caller asked about the “considerable noise pollution” that drones create. Mr. McNeal summarized the rule laid out in United States v. Causby (very briefly: a landowner has rights to some airspace above his house – a case interpreted and fought over in courts for decades as airports expanded). Amazon UAS will operate at 300-500 feet and create much less noise at ground level than your average UPS truck (and in the author’s case, the even louder noise created by his dog). He also noted that Google’s prototype will not even land but rather use a tether to lower the delivery. In short, innovators are hearing the public’s concerns and creating new technology to address these issues!
A caller asked about the legislation in his state that would allow one to shoot down a drone over their land. Mr. McNeal reminded the audience that since the FAA considers UAS “aircraft,” there are severe penalties associated with such conduct.
There was a brief FPV discussion, and Mr. Pirker came up. The take-away is that it isn’t always about the aircraft, but about the skill of the user. Mr. Pirker has flown around New York City and the Statute of Liberty and through tunnels with his FPV goggles. But he is that good.
Next, insurance was addressed. I am going to have a guest blogger in the near future talking about the insurance aspects of drones in more detail. FAA guidance hasn’t stopped people from flouting the rules and nothing can make an activity zero risk. Even if users don’t fear the current FAA ban, commercial users will heed the guidance of their insurance carriers and take steps to fly safely and keep their premiums low.
Mr. Drobac also discussed the safety risks and was concerned about the underutilization of the test sites. He said that many potential users want to test their skills and plans in controlled environments, and have been asking for time at the test sites to do so. He is attending a conference in Santa Cruz in May where they will be looking at reams of data on testing and discussing safe operation.
A caller asked if we are losing the “Drone Race” (see my comment at the end of this post regarding the “Space Race”). Other countries, like France, are allowing their operators to fly beyond the line of sight. They don’t care about their citizens less, but it does show how we are falling behind. In defense of the FAA, we do have a complex National Airspace, but that excuse only lasts so long.
The comments online were generally against the “one-hour long commercial for Amazon.” Writers felt that the segment didn’t address the privacy or human rights concerns. As for the latter, this was about commercial, not military UAS. As for the former, I wish it had come up. As I’ve discussed, I think there are good answers for that. However, Mr. Ashbrook couldn’t have done that and the NPRM issue justice in one segment, so hopefully there will be a follow-up segment on the privacy aspects of UAS!
All in all, this was a great segment that touched on most aspects of the current regulatory debate.
There was UAS news last night, and lest you think I forgot: drones were spotted over a number of French landmarks, including the Eiffel Tower, Place de la Concorde, and the American Embassy in Paris. We don’t know much about this yet, but I don’t think it changes the dynamic. Just as people can buy guns illegally, they can fly drones in violation of no-fly zone rules. France is investing 1 million Euros in a program to detect UAS in unauthorized areas and I have to imagine we are doing the same. I’ll keep you updated on any developments.
The government has been busy with UAS policy – not just with the well-known draft domestic regulations but with export policy as well.
Yesterday the Department of State announced a new policy regarding exports of military and commercial UAS. Exports of defense articles, such as military UAS, are controlled by the Department of State’s Directorate of Defense Trade Controls (“DDTC”) through the International Traffic in Arms Regulations (“ITAR”). Other UAS may be controlled through the Department of Commerce’s Bureau of Industry and Security (“BIS”) and the Export Administration Regulations (“EAR”).
The actual policy will not be released publicly, so we need to rely on the Press Release. The new policy put in place stringent controls on exports of military UAS, with numerous requirements to ensure that the end-use is in accordance with our policies and with the Missile Technology Control Regime (“MTCR”). However, exports will be allowed, even for MTCR Category I technology, but likely just to our very closest allies.
This comes on the heels of a February 6, 2015 announcement from the Defense Security Cooperation Agency (DSCA). They reported that the Department of State has approved the possible sale of General Atomics MQ-9 Reapers and associated support to the Netherlands. DCSA’s purpose is to support our global allies, including the Netherlands. The Department of State’s Directorate of Defense Trade Controls (DDTC) governs the export of defense articles through the International Traffic in Arms Regulations (ITAR).
This brings to the fore the important issue of export requirements for UAS, something I have danced around lately. While most commercially available UAS are unarmed and nonmilitary, and therefore not subject to the ITAR, they might be governed by the Department of Commerce’s Bureau of Industry and Security’s Export Administration Regulations (EAR). (Note: “military” is not defined in the ITAR as it applies to UAS – a word that has created ambiguity on whether items are ITAR controlled). The EAR covers “dual-use” items, those that may have both civilian and military applications. For example, a UAS capable of autonomous control is likely subject to the EAR with an Export Control Classification Number (ECCN) of 9A012 (see sub-paragraph a1). Many of the newer commercially available UAS can receive GPS plotting instructions and/or have “Return to home” capability; likely making them subject to this ECCN and its the associated export limitations.
The recent announcements from DCSA and DDTC provide the opportunity for an illustrative case example in the differences between what appear to be equally sophisticated ITAR-controlled UAS made by General Atomics. It also provides the opportunity to show the level of discretion provided to DDTC when determining whether to issue a license. The MQ-1B Predator can fly up to 450 miles with a payload of 450 lbs, such as Hellfire Missiles. The MQ-9 Reaper can fly over 1,800 miles with a payload of 3,750 pounds. The Predator XP is similar to the MQ-1B except that it is specifically designed not to carry weapons, in order that it can be exported more readily. This does not mean it is easy, however.
If the UAS is armed, the answer seems simple – it is controlled under ITAR Category VIII(a)(6). The category for unarmed military UAS is more ambiguous, and one will have to determine the purpose for which the UAS was designed and is being used. However, the ITAR also states “MT if the UAV has a range equal to or greater than 300km.” What does this mean? This is referring to the Missile Technology Control Regime, of which the United States is a part. This is a non-binding association entered into in the late 1980’s to limit the proliferation of weapons of mass destruction and their delivery vehicles, and its recommendations are generally heeded by the United States.
The MQ-1B and Reaper are classified under Category VIII(a)(6)* of the ITAR and the Predator XP would be classified as Category VIII(a)(5)*. The “*” indicates that the product is considered “Significant Military Equipment” and subject to special export controls. This is another area of ambiguity, the “special export controls” are not defined and are leave great discretion to DDTC.
Additionally, both aircraft will be considered “Missile Technology” and subject to the MTCR. The MTCR goes another step and has two categories, Category I and II (which should not be confused with the unrelated ITAR categories). The MTCR states that there will be a “strong presumption of denial” for exports of technology listed in Category I. As for Category II, partners to the MTCR have agreed to “exercise restraint, [but] have greater flexibility.”
As it applies to UAS, Category I covers UAS that can exceed a 300 km/500 kg (range/payload threshold). Some definitions are in order. According to the MTCR, “payload” is defined as “the total mass that can be carried or delivered by the specified rocket system or unmanned aerial vehicle (UAV) system that is not used to maintain flight.” Range is defined as the distance the aircraft can travel when fully loaded with fuel, independent of any external factors, with a trajectory that maximizes “range,” with no wind, and assuming a one-way trip with the most fuel-efficient flight profile.
The Reaper is clearly covered by Category I. The MQ-1B is also considered Category I by the USAF even though its advertised payload is less than 500 kg (~1100lb). This could either be because one can crease its range and add a greater payload or because of the weapons it can carry. Specific details on the MQ-1B are not available and neither is the rationale for this classification – at least as far as I can find. The Predator XP was specifically designed as an unarmed UAS so that General Atomics could market to foreign entities.
Even the Predator XP is not treated lightly, however. Recent reports indicate that the Department of State had refused a license request from General Atomics to enter into negotiations with Jordan (see my earlier post here). Conversely, the Category I MQ-9 Reaper is being considered for sale to our ally and MTCR signatory Netherlands, as discussed in the press release from DSCA. The only absolute prohibition on transfer, even to allies, is of the transfer of production facilities for Category I items.
This is merely a topical summary of the MTCR. The MTCR Handbook is over 300 pages and also includes numerous sub-components and production capabilities that are not addressed in this article.
One cannot stop at the airframe because both the ITAR and EAR control components within a UAS. The press release from DSCA lists the major defense components in the Reapers destined for sale to the Netherlands. Many of these systems will be classified under the ITAR (likely categories include XI – Military Electronics, XII – Fire Control, Range Finder, Optical and Guidance and Control Equipment, XV-Spacecraft Systems and Associated Equipment, XVII – Classified Items, XIX – Gas Turbine Engines).
The sales of military UAS bring together all facets of the ITAR’s control of defense articles. The examples discussed above provide a case study in how they apply, but each product can be properly classified only after a more thorough review of their design and capabilities, including a consideration of its sub-components. Exporting defense or dual-use articles is not an easy venture, but it can be done with a patient and thorough understanding of U.S. export law.
The big news in New England is the relentless snow pummeling the area. We’ve been more fortunate than Boston, but it is a lot. I haven’t found any videos of a snow-blanketed Boston taken with a UAS (guess that isn’t the first priority), but did find this one from Kitimat, British Columbia.
Amazon was also less than impressed. I’ve talked previously about its Amazon Prime Air. They stated that the proposed rules would not allow it to operate Amazon Prime Air as envisioned. They mentioned some reasons, and I have considered others as well:
Line of sight requirements. Clearly Amazon does not want to have the operator remain in the line of sight of the drone – that would defeat the purpose
One operator per drone. While “swarming” technology is still in its infancy, Puy de Fou and Timbre appear to be having success and the military is actively researching advanced swarming capabilities.
No operations overhead of people – this clearly would not work with a national package distribution plan.
They are also concerned that the rules will limit the ability of a drone to carry a payload.
The proposed rules are clearly a step forward, but also leave work to be done. There is a comment period and I’m looking forward to seeing the comments come in.
On a related note, General Atomics announced that it had a successful test flight of a Predator B equipped with a prototype “Due Regard Radar” (“DRR”) system. Frank W. Pace, president, Aircraft Systems Group, GA-ASI stated that “the prototype Due Regard Radar is a critical component of GA-ASI’s Sense and Avoid system, facilitating collision avoidance onboard the aircraft andallowing the pilot to separate the RPA from other air traffic in cooperation with Air Traffic Control [ATC].”
We have heard about how the FAA is concerned about Sense and Avoid as it applies to UAS. General Atomics intends to adapt the prototype to work within the National Airspace System and to help define regulations. While GA is known for its military UAS, we’ve seen military technology trickle down to civilian use many times (think GPS!). Once this technology matures, the FAA will hopefuly open up beyond line of sight operation for domestic UAS – at least in limited applications. I have to assume Amazon also has similar technology in the works for its fleet of Amazon Prime Air drones.
I’ll finish up with a brief thought. Why do the rules matter, beyond the use of UAS domestically? Our strict ITAR controls limited our space program and we saw other countries take over. This article notes the countries with the 5 most deadly drone programs. The United States is first and Israel is second; but China, Iran, and Russia follow – countries that we can’t necessarily call the best of friends. We should be out front defining the industry. If we limit R&D and commercial use domestically, UAS development will head overseas and we will lose our edge.
Yesterday, Professor Gregory McNeal of Pepperdine University wrote about a document that was leaked on the web. It is entitled “Notice of Proposed Rulemaking Regulatory Evaluation” and is an economic analysis of a proposed rule 14 CFR Part 107. The drone world was abuzz about this, since it provided a lot of insight into the proposed rule. I began analyzing it myself but as I was doing that I received an email about a press conference to release the proposed rule today (Sunday Feb 15) at 10:00 am. The press conference was by phone and I could not get through since the lines were full, but some information has been released. I won’t comment on the irony found in the FAA using a conference call line to propose rules for cutting edge technology.
Note that these are PROPOSED rules. That means they do not have the force of law and the current regime is still in force. That means that anyone, including you, can comment on them through the normal rule making process!
These rules are directed at UAS under 55 lbs, but the NPRM indicates a desire to have even more permissive rules for mUAS (micro UAS under 4 lbs). The FAA has not actually proposed rules, but will review comments and decide where to go from there. Make your voice heard if you have an opinion.
Thank you to Professor McNeal for writing his article and forcing the FAA into action – especially on a Sunday!
Unmanned aircraft must weigh less than 55 lbs. (25 kg)
Visual line-of-sight (VLOS) and daylight only (First-person view (“FPV”) camera cannot satisfy “see-and-avoid” requirement but can be used if VLOS is satisfied)
Small unmanned aircraft may not operate over any persons not directly involved in the operation
May use visual observer (VO) but not required
Maximum airspeed of 100 mph (87 knots)
Maximum altitude of 500 feet above ground level
Minimum weather visibility of 3 miles from control station
Operations in Class G airspace are allowed without ATC permission – operations in Class B, C, D and E airspace are allowed with the required ATC permission
No person may act as an operator or VO for more than one unmanned aircraft operation at one tim
No careless or reckless operations
Requires preflight inspection by the operator
The proposed rule sets forth certification requirements for operators and aircraft:
Pilots of a small UAS would be considered “operators” (not “PIC”)
Operators would be required to:
Pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center (and re-test every 24 months) – most knowledge required for the test is contained in the Aeronautical Information Manual
Be vetted by the Transportation Security Administration
Obtain an unmanned aircraft operator certificate with a small UAS rating (like existing pilot airman certificates, never expires)
FAA airworthiness certification not required
Operator must maintain a small UAS in condition for safe operation and prior to flight must inspect the UAS to ensure that it is in a condition for safe operation
Aircraft Registration required (same requirements that apply to all other aircraft)
Aircraft markings required
Same requirements that apply to all other aircraft
If aircraft is too small to display markings in standard size, then the aircraft simply needs to display markings in the largest practicable manner
Proposed rule would not apply to model aircraft that satisfy all of the criteria specified in Section 336 of Public Law 112-95 – Hobbyists can still fly under the Model Aircraft Rules
The rule proposes, but does not delineate a microUAS option that would allow operations in Class G airspace, over people not involved in the operation, provided the operator certifies he or she has the requisite aeronautical knowledge to perform the operation.
Today I am not going to focus on anything in particular but address a number of stories that caught my interest.
A company based in the Netherlands called Aerialtronics recently had one of its UAS participate in Avalanche Search and Rescue in the “angry” Norwegian winter. The UAS is the Altura Zenith, a smaller UAS that is designed to handle winds up to 14 m/s, a payload of 3 kg, and moderate weather. This isn’t necessarily the UAS one would think is best suited for rough winter conditions, but the team was well-trained and braved white-out conditions to accomplish the testing.
I wanted to start on a light note, before getting to some of the less positive domestic legislative news. The media has been highlighting negative UAS stories and what one author describes as “paranoia.” This is why I try to write daily about at least one company or group that is using UAS in a positive way. It is interesting how there has been a surge in negative stories and perceptions are changing noticeably – but many of the fears are not based in science or reality.
William Jelani Cobb, a professor at nearby UCONN, wrote “What Our Paranoia About Drones Says About Us” in the New York Times Magazine. It is an interesting read, and here is what I consider the pull quote: “We increasingly glance at one another through a veil of suspicion, doubt and fear….Yet our privacy is far more vulnerable in the face of surreptitious phone photography or recording than it is to a noisy conspicuous device hovering in plain sight. The problem is not technology. It is, as it always was, us.” He is dead on here. Let’s be honest, few of us have lives as exciting or bodies so interesting as to warrant a stranger peeking into our private lives. And if they were, recall how loud a UAV is – it’s not the ideal way to spy on someone.
Back to the “paranoia.” Two states are considering bills that are antagonistic to civil UAS use. Washington is considering a bill that would add a year of jail time to sentences for crimes that are committed with a UAS. I’m not sure why selling your drugs or the like is worse when you use a drone, but we’ll see what the state does.
While I personally consider Washington’s proposed law a bad idea, at least it is squarely within the state’s police powers. That contrasts with Oklahoma’s proposed bill, which would provide civil immunity to one who shoots down a UAS over their property. What Oklahoma cannot do, however, is immunize the shooter from federal prosecution under 18 USC §32 for destruction of aircraft, something I have discussed multiple times in previous posts.
Add to this California’s proposed bill SB 142. It would ban UAS users from trespassing in airspace below what has been defined by the FAA as “navigable.” Media outlets are already reporting that this means users of UAS cannot fly below 400 feet since navigable airspace is defined as something higher. Again, I think this will just cause confusion. I’m working on an article that discusses the history of navigable airspace. The 400 foot height limit is just a guideline, not a law or regulation – furthermore, it would seem to imply that the FAA has designated anything below 400 feet as navigable for hobby UAS in certain circumstances. Finally, the courts have spend decades defining navigable airspace for manned aircraft, and navigable airspace can include any altitude required for take-off or landing. This is a very brief overview, and I hope to write more on this topic in the future. In the meantime, these proposed state laws are only causing more confusion.
On the other hand, the Wyoming Senate has rejected a bill that would limit police use of UAS without a search warrant. Last weekend I wrote that the public feels more comfortable with police use of UAS than with private use. I think we need to balance both and both have advantages – and disadvantages. I worry that if we put UAS just in the hands of the government and prohibit civil use, then we risk heading toward one of those dystopia’s described in recent books and movies; at least in that the government will have the means to watch us at all times.
However, the FAA did release some good news. They have approved two COAs for the Northern Plains Test Site in North Dakota, and expects to approve two more – opening up almost 2/3 of the state to test flights. This doesn’t allow commercial operations, just flights in conjunction with the test site, but still progress. Hopefully this will speed up and encourage the use of the sites for R&D to integrate UAS into the national airspace.
On a lighter note, the Netherlands is planing the first “Drone Show,” called Air. What it is is yet to be seen, but the trailer is pretty cool. Yahoo reports that it is being put on in conjunction with the Royal Dutch Air Force.
And to finish up, a restaurant called Timbre in Singapore is testing using drones to help delivery food at their restaurants. Don’t worry, you’ll still have a real waiter. The drones will deliver your food to a location near the wait staff, and they will still give it to you after personally taking your order.
The restaurant says it spend over $1,000,000 for this project, which includes using Infinium Robotics UAV at its five restaurant locations. The FAA does not regulate indoors so American restaurants could do such a thing, but they are probably skittish after the Mistletoe Drone incident at TGI Fridays last Christmas.
Senator Lisa Murkowski and Congressman Don Young, both representing Alaska, have introduced the “Safe Skies for Unmanned Aircraft Act of 2015” This is bipartisan legislation designed to push the FAA toward passing regulations for the use of UAS and to encourage R&D in the field. In Alaska, UAS are a seen as a great opportunity – it was a big topic at the recent Arctic Encounter Symposium. If you’ve been fortunate enough to visit Alaska (I haven’t been but would love to) or watched Ice Road Truckers, you know that Alaska is big and there are settlements separated from larger municipalities by vast stretches of treacherous terrain.
Alaska sees great opportunity for unmanned vehicles to help bridge those distances – deliveries, law enforcement, and fire management to name a few. Furthermore, the Coast Guard is testing UAS for various Arctic-related purposes such as monitoring oil spills (it is an AeroVironment Puma).
The bill is also aimed at addressing (1) the lack of funding for the test sites, something that has been discussed elsewhere and (2) the Wild West nature of hobby and small commercial UAS use caused by the FAA’s lack of guidance.
The bill’s sponsors used the Superbowl as an example, where a “No Drone Zone” was created that was significantly larger than that is place for normal professional sporting events and, at 2800 square miles (30 mile radius), larger than the state of Delaware. The FAA released a short PSA, shown above.
It is undoubtedly creating confusion. There is a new website that is allowing people to sign up their property as a “No Fly Zone.” I understand this to be a development of a few drone manufacturers, and they will use it to preprogram their UAS not to fly over those properties. However, I do not endorse it and think it will only add to the confusion. I fear people will think this has some legal effect, but it has none. It also does just justify taking action against a drone – something that can subject the person to severe criminal penalties.
I am working on an article for another publication that is going to address the case law regarding ownership of airspace. An episode of Planet Money came to my attention and it is partly right, but partly wrong too. They state that the Supreme Court in United States v. Causby determined that one owns the air above his house up to 83 feet and that the FAA regulates airspace over 500 feet – creating a “no man’s zone” from 83-500 feet. This is an overly simplistic analysis that took decades to clear up and pages for me to explain. In the end, it isn’t that simple. A UAS might be trespassing over a property – but the altitude at which a landowner has a claim is an open question that courts will have to decide. Furthermore, the altitudes at which the FAA can regulate airspace is not that simplistic either.
The bill is not posted on Congress’ website yet, but I hope to get my hands on a copy of it soon. I’ll review it and let you know my thoughts.
The King of Jordan, King Abdullah II, met with Rep. Duncan Hunter, R-Calif this past week during his visit to the U.S. King Abdullah has taken a justifiably aggressive stand against ISIS following the murder of one of their pilots and intends to respond forcefully. Some have referred to this British and American educated King as taking on a “Clint Eastwood” stance. He has military training, both in the UK and US, was trained to fly Cobra Attack Helicopters, and commanded Jordanian Special Forces.
I don’t know much about him other than recent news reports, but based on his résumé it is hard to doubt his sincerity. There are also unconfirmed rumors that he intends to personally fly sorties against ISIS.
Jordan was denied the opportunity to purchase the Predator XP, General Atomic’s “export” version of the MQ-1 Predator. Both are export controlled under the ITAR, but the Predator XP has been specially modified to meet export requirements. It is still ITAR controlled, just not as strictly as the MQ-1. The airframes will be controlled under ITAR Category VIII (Missile Technology), but there are going to be many internal components that are also ITAR controlled.
The Department of State, which must authorize any exports of ITAR controlled defense articles, denied General Atomic’s request earlier this year for a DSP-5 export license to market and sell the Predator XP to Jordan. Representative Hunter wrote the Obama administration this week asking that it reconsider its denial. Furthermore, the Senate Armed Services Committee has asked for a briefing from the Department of State on the US foreign military sales program.
I heard recently in the news that Jordan is not able to maintain the charge against ISIS indefinitely due to financial strains on the country. They do not have the natural resources of its neighbors or an economy as developed as Israel. Furthermore, they are financially burdened by the costs of aiding a wave of over 600,000 refugees from Syria. Undoubtedly they need help from their neighbors and the U.S. to continue this press against our mutual foe. The Predator is one weapon in the arsenal that can be used to fight ISIS.
When I was at the test flight last week, I overheard a conversation about the strong opinions hawks have toward UAS. It isn’t favorable either, as shown in this video that has gone viral:
I had been thinking about the topic of drone insurance for some time – it was inevitable since I am a lawyer and my wife is a specialized insurance broker. The issue came up again when, of all people, an FAA representative asked me about the insurance aspects of UAS.
I have asked my wife, Kristen Lincoln, to provide some insight and advise regarding this topic. She is at Gowrie Group in Westbrook, CT, but works with clients all over the country and you can email her here: Kristenl@gowrie.com. (Updated July 2015: We have moved due to my recall orders, so please email Kristen at Kristen.E.Lincoln@gmail.com).
An Introduction to Insurance for UAS – by Kristen Lincoln
One must consider a number of legal issues surrounding the use of UAS while reviewing and deciding upon insurance coverage. This should not be taken as legal advice – you should contact an attorney if you have legal questions and discuss your specific situation.
Damage to your system. This brings up a number of issues such as:
Damage to the aircraft itself. This is normally covered by a “hull policy.” Your general policy is not necessarily going to cover damage to the aircraft, particularly while in flight.
Damage while in transit or while in storage.
Hacking. This requires a cyber insurance policy. Recall the recent post about Maldrone? It was also a hot topic at the recent House hearing and industry representatives acknowledged that UAS can be hacked, just like any other system; whether to usurp the drone or to steal its data.
Trespass. Before the Wright brothers introduced us to manned flight, a landowner owned the air up to heaven (“Cujus est solum, ejus est usque ad cœlum” – “He who owns the land, owns everything up to the heavens.”). It took decades to figure out how the rule should apply to manned flight, and it is going to take time to to figure out how it applies to UAS. In the meantime, keep up on the rules and protect yourself should someone try to sue you.
Invasion of Privacy. The rules vary by state, and individuals within a given state might have a different view as well. It doesn’t mean they’ll win if they sue you, but it means you are on the hook to defend yourself – unless you have insurance that provides for an attorney in the given situation. California has strict anti-paparazzi law and Tennessee passed a UAS-specific law, but in New York it is generally hard to be liable for invasion of privacy. Also, recall the issue in Hammonnassett? While this was clearly not an invasion of privacy issue, it still poses concerns.
General Negligence. This covers general negligent acts and is frequently used as a legal catch-all. Duty…Breach…Causation…Harm.
Professional Liability. Are you using this commercially (FAA concerns aside)? Keep this in mind as well to protect your professional assets.
Products Liability. This is an important concern for makers or sellers of UAS.
This is just the tip of the iceberg and any insurance coverage must be tailored to the specific situation. If your broker isn’t asking you specific details – who is flying, what you’re flying, their experience and training, maintenance, and the flight plans – you should get a second opinion. Hopefully I’ve piqued the curiosity of UAS users and developers out there. Please feel free to reach out to me if you have any questions.
Yesterday I had the honor of attending a test flight at the U.S. Coast Guard Training Center, Cape May, New Jersey. The flight is part of a program run by Dr. Michael Chumer at the New Jersey Institute of Technology that is researching how to use data-collection sensors on UAS for homeland security and emergency management functions. While NJIT is part of the Virginia Tech Test site’s Mid-Atlantic Aviation Partnership (MAAP), a group of over 50 institutions, they independently sought and obtained a Certificate of Waiver or Authorization (COA) from the FAA for this current program.
It took over a year for NJIT to obtain the COA, and it was clear from the moment I arrived that the COA had placed significant requirements on NJIT. One of my first posts was to explain why I use the term UAS, as opposed to drone or UAV. It was clear today that UAS is the proper term, because the aerial vehicle is just a small part of the overall system – the team estimated that the aircraft is only 20% of the overall system! Dr. Chumer introduced me to the Emergency Operations Center (EOC), housed in an RV and provided by Cape May County. There was also a flight center in a mobile military-style vehicle and this is where the pilot and other flight crew were based. EMT personnel were present and a number of members from an FAA research group who are helping to develop the R&D necessary to promulgate UAS regulations were present. I arrived 45 minutes before takeoff, and they were already well into busy flight preparations – this is not your fly out of the box DJI Phantom.
COA’s are only issued to public entities under the FAA Modernization and Reform Act of 2012, which provided some logistical hurdles. NJIT does not own the RS-16, the unmanned aircraft that flew yesterday. It was leased from its developer, American Aerospace, which as a private entity cannot obtain a COA. NJIT then also hired American Aerospace to provide the trained pilots necessary for the flight. The RS-16 is an gas-powered 85 lb aircraft with a 12 foot wingspan, 15,000 ft ceiling and 25 lb payload. It’s maximum speed is 65 knots, with a cruising speed of 55 knots and stall speed of 31 knots. The RS-16 is developed with civilian technology, which helps it avoid the ITAR issues surrounding military UAS (I do not know enough information to determine the ECCN, but this is sufficient to allow me to comfortably post images from the test flight).
UPDATE: I’ve been able to confirm that at least one internal component is Cat VIII on the ITAR. As for the rest of the system, I do not have enough information to make a determination.
Yesterday’s flight was limited to a ceiling of 3,000 ft and a range of 1 NM from the takeoff location. Except for the fact that there was no passenger compartment, one would have thought this was a manned flight. There were fully qualified pilots – one who was the Pilot-in-Command and two to act as ground observers. The pilot was in constant communication with Air Traffic Control, had filed NOTAM’s with the FAA to advise other aviators about the flight, and received clearance from ATC prior to take-off. The ground observers are necessary to comply with FAA “sense-and-avoid” requirement, which is the requirement that an aircraft have first-hand situational awareness of its environment and be able to avoid other aircraft. This is accomplished with UAS by either having ground observers who are trained pilots, that can have eyes on the aircraft even when the PIC is looking at his controls, or by having a “chase aircraft,” a manned aircraft with eyes on the UAS. For this flight, ground observers were sufficient, but the COA will eventually allow NJIT to fly up to 10,000 ft and out to 14.5NM over the Atlantic. At that point a chase aircraft will be necessary. It might seem odd that a UAS with 25 lbs of sensors needs human eyes on its surroundings, but until the FAA is satisfied that sensors can comply with sense-and-avoid requirements, this will be required.
Dr. Edward Mahoney, the Mayor of Cape May and Gerald Thornton, the Freeholder Director of Cape May County discussed the potential they see in UAS. They hope that UAS will help in disaster situations to aid people stranded and then to survey damage, such as if another Hurricane Sandy occurs, or to help ground personnel in more traditional emergencies such as those that fire and EMT personnel respond to. They heard numerous concerns from citizens about privacy issues as well, but assured residents that this is not being for the aforementioned research purposes and not as a police surveillance tool. They also hope that by leading the R&D effort they will attract UAS industry to southern New Jersey – a very astute and forward-thinking position and they would eventually like to open up a local airport for UAS operations. A number of people, including the FAA research group, had questions about the liabilities one might face for using a UAS. As you know, this is a long and complicated topic, and not the primary purpose of the test fight, but it was good to see that people were thinking about these issues.
Now for the flight, the exciting part. The RS-16 does not have wheels, and like many fixed wing UAS it is launched off of a catapult-looking device. The flight crew took a good amount of time testing it in the apparatus before flight, and started the propeller like in the old days (although now there is a device that helps spin it rather than the images of WWII crew doing it by hand). We all had to stand back behind a pre-determined point from the 15 minutes prior to take-off, a very strict requirement as part of the COA. The catapult launched it into the air for a successful take-off and the research began. It stayed within the predetermined area and we went into the EOC both to get warm and see the equipment that was receiving flight data. The computer has the capability to link via VPN to numerous emergency agencies and receives real-time data, including high-qualify imagery, from the RS-16. Two people from Avwatch were present with a mobile Dismount User Kit (DUK). It was designed for special forces units and looks like a bullet-proof vest with a mini iPad on it (it’s actually a Samsung). This device receives the same imagery as the computer alongside a map noting the location of the aircraft, the pilot, and the various DUK users. I have photos of this, but since it was designed for military purposes I’m concerned that it might be ITAR regulated and will refer you to their website.
After about 30 minutes in the air, the RS-16 came down for a landing. We all had to stand well back from the runway and were told to speak up if we say anything of concern. Remember that it doesn’t have wheels? It still doesn’t for landing. While David Yoel, the Founder and CEO of American Aerospace, had full faith in his pilot, he took a big sigh of relief when it skidded to a safe landing on its second pass – a brief gust of wind caught the wing on the first pass and the pilot wanted to be safe!
The whole team was excited about the successful flight and I wish them the best with their program.
Legal, Photographic, and Other Drone-related News From the "Duke of Drones"