To understand why, we must delve briefly into the realm of administrative law.  Generally, there are two types of administrative rulemaking, legislative and interpretive.[1]  Legislative rulemaking is the one with which most people are familiar.  The agency has to follow the requirements of the Administrative Procedures Act, and there has to be a notice of proposed rulemaking, followed by public comments, and then issuance of a final rule.[2]  Any time an agency wants to impose a new regulation or change the substance of existing law or policy, they must use legislative rulemaking.

Interpretive rulemaking, on the other hand, has much lower public visibility.  Agencies use interpretive rulemaking to publicize an existing law or policy.  As a result, interpretive rulemaking does not require any public notice and comment period.[3]

The model aircraft rules published in the Federal Register state that the FAA is taking the following action: “Notice of Interpretation with Request for Comment.”  This is somewhat odd, because one of the benefits to an agency from an interpretive rulemaking is that no public comments are required.  So why do it?  Several reasons come to mind.  First, the FAA is probably very interested in taking the pulse of the nation before announcing the expected small UAS rules in November.  Second, there is a clear public relations value, in that it makes the FAA look responsive and it shows the FAA is pushing forward with its “rulemaking.” Third, this notice of interpretation also gives the FAA the opportunity to restate its position on personal v. business use of model aircraft and UASs.

Could the fourth reason be that the FAA will issue a new model airplane rule in response to the comments?  No.  Because the interpretive rule is simply a statement of existing law, any modification of it would, by definition, be a change to the law.  As a result, a new, full blown legislative rulemaking would be required, with publication of the notice of the new rule, another public comment period on the new rule, and then an announcement of the new final rule.

So, while we would tell anyone interested in the issue to provide public comment as we are sure the FAA is listening, don’t expect it to result in a modification of the FAA’s rules for model airplanes.

[1] Splane v. West, 216 F.3d 1058, 1063 (Fed. Cir. 2000).

[2] 5 U.S.C. § 553.

[3] Las Casa Del Convalsciente v. Sullivan, 965 F.2d 1175,1177-78  (1st Cir. 1992).

Suddenly, out of the setting sun, a drone roars in, diving on the unsuspecting tourists.  The shrill scream of its engines spreads terror and confusion as the drone makes numerous passes.  Suddenly, without warning, the drone banks over and crashes spectacularly into the canyon. 

No, not a scene out of National Lampoon’s Grand Canyon Vacation and Chevy Chase had nothing to do with it.  Yes, allegedly, it did happen, although we’re sure it was probably a lot less dramatic and a lot more annoying for the tourists than our description.  The incident, however, cannot be laughed off, as it featured prominently in the National Park Service’s decision to ban all unmanned aircraft from operation over any land or waters administered by the Service.

The National Park Service states that the ban is not permanent, and that the next step will be a rulemaking to establish UAS guidelines.  The press release also states that the regulatory process “can take considerable time,” so the ban will last for the foreseeable future.  To the extent that any person had been issued a permit to fly a UAS at any national park, those permits are also suspended indefinitely. 

The policy directive permits park superintendents to continue to permit hobbyists to fly model aircraft at specific parks at their discretion.  Even before this latest policy announcement and press release, however, recreational UAS use was banned at a number of the more popular national parks, including Zion, Yosemite, and the Grand Canyon.  It is unclear how many more of the nation’s 84 million square acres of national park land will be similarly off-limits. 

Hopefully, one of the issues that the Park Service is considering is the potential for unintended consequences.  As the cost of UASs available to the general public continues to drop, more and more people will be looking for a place to fly them.  Forcing these users out of less populated wilderness areas may only increase the number of UASs flown in more populated areas, where the dangers to persons and property on the ground will be greater.         

The FAA’s UAS Certificate of Authorization (COA) system draws a distinction between private and public aircraft, with public aircraft enjoying far fewer restrictions.  One of the major beneficiaries of the public aircraft exception have been public universities, who have been getting COAs to conduct aeronautical research.  The FAA, however, has noticed a disturbing trend in how universities are using these COAs:

The current unavailability of routine civil operation of UAS has caused a considerable rush by government entities to qualify as public operators and be the sole source for near-unregulated UAS operations.

Essentially, the FAA believes that the universities have been tempted to act as little more than “fronts,” taking “aeronautical research” grants from commercial entities as a cover for operations that would otherwise be prohibited.  The legal opinion notes that in order for a UAS to be a true public aircraft, there are substantial restrictions on the UAS’s use that must be followed.

First, the FAA notes that generic research does not become “aeronautical research” simply because a UAS is involved.  The research must have “at its core the development of aircraft and systems.”  By way of example, the opinion notes that a project to design a specific UAS for soy bean monitoring would be aeronautical research, while a project to use an off-the-shelf UAS to monitor moisture in a soybean field as part of agricultural research would not be aeronautical research and would be prohibited.     

Second, the FAA notes that a state university can only use its COA for aeronautical research if the findings of the research belong to the university regardless of the source of funding.  If the private entity retains an ownership interest in the data, then the research is not being carried out for a public purpose. 

Third, the UAS cannot carry property owned by a third party.  In order to qualify as a public aircraft, the UAS and its contents have to be owned by the public entity. 

The opinion concludes with an interesting policy discussion highlighting the differences between the public and private aircraft system, and how efforts to use the public aircraft COA by universities is unfair and undermines the statute’s public policy.

The public aircraft statute exists to free governments from regulation, not to confer a benefit on government entities that is unavailable to civil operators. There is no new operational authority that can be read into the public aircraft statute simply because a government entity is the operator. The public aircraft statute and UAS COAs do not exist to create a loophole of exclusive operation, or allow state universities to become exclusive providers of certain aircraft operations by any entity willing to fund them as ‘research.’

We will refrain from pointing out the irony of the government arguing about its need to be free from oppressive government regulations that stifle flexibility and creativity.  However, the argument is well taken, and the public aircraft statute should not be used as a shield to give public entities a competitive advantage over the private sector. 

 Now, who wants Jell-O?

 This blog, however, noted that the excitement generated by the suit was probably unwarranted, and that it appeared unlikely that the D.C. Circuit would ever reach the merits of the case.  We, at this firm, have spent decades litigating FAA enforcement and regulatory issues.  Before going to the court of appeals on an issue such as this, the most important precondition is that there be a “final order.”  While Texas Equusearch’s Complaint used all the right terms, i.e., it said that the FAA had issued a final order, the documents attached to the petition show otherwise. 

 As we pointed out in our earlier post, the FAA’s “Order” was just an email from an Aviation Safety Inspector (“ASI”).  While the email told Texas Equusearch that flying their UAS without a Certificate of Authorization (“COA”) would be a violation, it also pointed out that there is a procedure to get a COA on short notice if there was an emergency, and the ASI offered to help Texas Equusearch if they had trouble gettingg a COA.  In addition, the Complaint did not state that Texas Equusearch had tried to get a COA, but had been wrongly denied by the FAA.

 The ASI’s email is most akin to the situation where a speeding driver is stopped on the highway and the state trooper tells the driver what the speed limit was, and then lets him off with a warning.  A traffic court judge would give you some odd looks if you appeared and tried to appeal your warning.  Based on this, it appeared to us that the FAA would likely bring a motion to dismiss the appeal as premature.

 Last month, Texas Equusearch, unhappy with the speed of the appellate court, filed an emergency motion for stay of any FAA enforcement action to jump-start the proceedings.  As we anticipated, the FAA countered by bringing a motion to dismiss the appeal. 

 The FAA points out in its motion that an advisory letter such as the one Texas Equusearch received merely restates existing policy and is not an order that can be challenged.  The FAA also noted that an ASI does not even have the legal authority either to initiate enforcement proceedings or to issue a cease-and-desist letter.  These actions can only be taken by the FAA’s Office of Chief Counsel.  As a result, the FAA argues there is literally nothing for Texas Equusearch to appeal.      

 The FAA’s motion also repeats an argument that was set forth by the Former FAA Officials in their Amicus Brief in the Pirker case.  The agency points to the FAA Modernization and Reform Act of 2012 (the “2012 Act”) as clearly delineating all UASs, including model airplanes, as aircraft that have to comply with the FARs.  As a result, the FAA argues that the Pirker decision does not affect the FAA’s current UAS regulatory authority, and Texas Equusearch will not be able to prevail on the merits of its claims even if the court addresses them.

 The FAA concludes its motion by arguing that Texas Equusearch has two options.  The first is to use Section 333 of the 2012 Act and apply for an exemption.  The second is for Texas Equusearch to fly their UAS how they see fit, and if the FAA brings an enforcement action against them, they can appeal any fine to a Department of Transportation ALJ, whose decision could then be appealed to the FAA Administrator.  Only after these steps are taken, would there be a record that would be ripe for appeal to the D.C. Circuit.     

 The second option is obviously unpalatable.  It is risky, time consuming, and expensive.  The unfortunate reality, however, is that this is the same choice everyone faces when they believe a regulation is being applied unfairly or improperly.  You can either comply, or break the rule and fight.  The Court system is not equipped to short circuit the process and give an advisory opinion.  There has to be a concrete action, based on a developed factual record, before a court will become involved. 

 As we predicted, it does not look like there will be a judicial quick-fix for the UAS question, and everyone will have to settle in for the rulemaking process to be proceed.    

As we previously reported, there are indications that Congress is questioning the FAA’s ability to integrate UAS into the national airspace in a timely manner.  The FAA knows that in this environment, all it can take is one or two bad news cycles for the storm to break over the agency.  The FAA clearly thinks that by making a press release such as this, trumpeting, what is essentially a minor development, it is pouring oil on the angry sea of would-be UAS operators to calm it.  Hopefully press releases such as this do not have the opposite effect.

While the public knows the FAA has been slow to authorize commercial UAS operations, many reading this story will be surprised to learn that, up until this week, the FAA still had not given a single authorization for commercial UAS use over land.  In fact, the only other broad authorization the FAA gave was a year ago, for Puma and Insitu’s Scan Eagle for limited “aerial surveillance only over Arctic waters.”  If we were to put on our “cynical hat,” we might question whether it’s the FAA’s plan to authorize UAS operations 50 miles farther South each year until it reaches the continental United States sometime mid-century. 

We look forward to the day, hopefully soon, when there is a press release authorizing a commercial UAS use somewhere that is not a barren, uninhabited wilderness.  

Why do we have such an odd, and somewhat irrational, binary system in the United States?  Is this a well thought out system based on a coherent analysis of risks and benefits?  Did a think tank ponder the question long and hard after protracted study?  The answer, unfortunately, is that the system just happened while no one was really paying attention to the evolving technology.

In 1981, the dawn of UAS pre-history, the FAA released AC 91-57, which set out the basic rules for model airplane enthusiasts.  The document is only one page long, and provides little more than common sense advice such as: give way to full sized aircraft, don’t fly near noise sensitive areas like churches and hospitals, stay below 400 feet, and stay 3 miles away from any airport.

Fast forward to 2007, when the FAA published Policy Notice 07-01.  The Notice  addressed the novel question of whether anyone could use AC 91-57 to fly a UAS.  The FAA stated:

The FAA recognizes that people and companies other than modelers might be flying UAS with the mistaken understanding that they are legally operating under the authority of AC 91-57. AC 91-57 only applies to modelers, and thus specifically excludes its use by persons or companies for business purposes.

The decision does not appear to have been based on any analysis of differences between the capabilities of a hobbyist’s UAS vs. a business’s UAS, or a distinction between how a UAS might be flown by the two different operators.  Instead, the FAA’s decision tree can be summed up as:

Step 1: AC 91-57 applies to hobbyists,

Step 2: Businesses are not hobbyists,

Step 3: AC 91-57 does not apply to businesses.

The Amicus Brief filed on behalf of Angel Eyes, Inc., a UAS technology integrator, in the FAA v. Pirker appeal argues, among other things, that this dual system of regulating UAS is arbitrary and unenforceable.  While this is an interesting argument, it does not take into account that the distinction between commercial and hobbyist operators has moved beyond a mere fluke of regulatory history, and is now enshrined in the United States Code.

In 2012, Congress passed the FAA Modernization and Reform Act which kicked the FAA’s UAS initiatives into high gear.  As part of that effort, however, Congress specifically forbid the FAA from regulating any person who operates a UAS for “hobby or recreational purposes” so long as the UAS is under 55 pounds and flown within line-of-sight.  The only substantive restrictions imposed by the statute are that the UAS can’t be flown within 5 miles of an airport without prior notice to the air traffic control tower, the operator has to follow “a community based set of safety guidelines,” and the UAS has to give way to manned aircraft.  These are basically the same restrictions that were established back in 1981 in AC 91-57.

So as a result, if there are any frustrated businessmen who think it is unfair that hobbyist’s UASs are literally leaving them in the dust, don’t expect the FAA to rationalize the two systems.  The FAA is officially forbidden by statute from doing so, and the current dual system might as well be etched in stone.

to forge a union of public sector (FAA, NASA, DOD, state/local governments, etc.), private sector, and academic institutions to create a world‐class consortium that will identify solutions for existing and anticipated UAS related issues.

The center will provide matching federal grants to fund research needed to speed integration of UAS into the national air space.  The FAA has identified seven areas it is particularly interested in:

 1. Air Traffic Control Interoperability

 2. Airport Ground Operations

 3. Control and Communication

 4. Detect and Avoid (DAA)

 5. Human Factors

 6. Spectrum Management

 7. Unmanned Aircraft (UA) Crew Training and Certification, Including Pilots.

The FAA had requested $1 million in funding for the new Center for Excellence.  The United States Senate Appropriations Committee not only approves of the FAA’s initiative, they think it does not go far enough.  The Committee nearly doubled the FAA’s UAS R&D budget, and they also directed that the FAA spend $5 million to create and fund the Center.  In addition to the seven areas of research identified by the FAA, the Senate directs the FAA to pay particular attention to issues of cyber security and its impact on future UAS operations.

The Committee also, however, criticized the FAA’s overall approach to UAS research.  In particular, the Committee feels that the FAA has not set a comprehensive strategy for how the research at its six UAS test sites will actually further UAS integration into the National Airspace.  The Committee expressed a hope that the center for excellence will aid the FAA in creating a more comprehensive R&D strategy and provide a better opportunity for project coordination.

This appears to be one of those rare situations where government works as it is intended.  An agency comes up with a good idea for a public/private partnership, the Congress supports the idea and tells the agency to run with it, and also gives concrete guidance on how to make the project better and more productive.  It will be interesting to see whether this provision ultimately makes its way to the President’s desk for signing.

The FAA announced yesterday that it has received applications from seven cinematographers and production companies seeking permission to use UAS’s to film movies.  This appears to be the first step in the FAA’s promised effort to make use of Section 333 of the 2012 FAA Modernization and Reform Act.  Under Section 333, the FAA has authority to give broader authorization to UAS operators without having to go through the ad hoc Certificate of Authorization procedure that has been used up until now.

The Motion Picture Association of America helped coordinate the applications, and is lending support to try to speed and simplify the process for filmmakers in the future.  Hollywood’s interest stems for the potential loss of big movie production dollars if they cannot get on the UAS bandwagon.  For example, a number of big action sequences in the last James Bond movie, Skyfall, as well as the Harry Potter and “Mission Impossible” films were shot using drones, but the production had to occur overseas due to the US ban on commercial UAS use.

While the action on screen in a summer blockbuster seems chaotic, there are few workplaces where the environment is as tightly controlled as a film set.  The movements of all of the cameras, actors, and action is highly choreographed and controlled, and everyone knows where they are supposed to be and what they are supposed to be doing at any given moment.  As a result, UAS and film seem like a natural fit.

The only question remaining  . . . are the FAA regulators ready for their close-up?

 The “FAA may not be well positioned to manage effectively the introduction of UAS in the United States . .  .”

 Is it from:

            A:        An irate UAS operator waiting for his Certificate of Authorization from the FAA?

            B:        A frustrated manufacturer trying to get a type certificate for his UAS?

            C:        A disappointed media company wanting to use a UAS to film breaking news?

            D:        A noted blogger who has followed UAS issues for years?

            E:        None of the above.

The first four choices are all plausible, and at this point, no one would raise an eyebrow if any of these were the correct answer.  It is, however, “none of the above,” and the real source of the quote does not bode well for the FAA.

The quote comes from the House of Representatives Appropriation Committee in its 2015 Department of Transportation funding bill.  The Appropriations Committee is one of the most powerful organizations on Capitol Hill, and it is one of the few places where an agency can be punished if it is not doing its job.

The Committee Report goes on to complain that the FAA’s lack of an overall framework is slowing the UAS integration process, that the FAA still does not have a grasp on what is needed to complete UAS integration, and that the FAA is unlikely to meet the 2015 integration date set by Congress.  The Committee also specifically referenced the FAA’s loss of the Pirker case as evidence that the FAA is not sufficiently in control of the UAS integration process.

The Appropriations Committee, however, appears willing to give the FAA one more chance to get it right.  The Committee has given the FAA an extra $3 million over their budget request to expedite UAS integration.  In addition, the Committee provided nearly $11 million to fund the six UAS test sites, which is $2 million more than the FAA requested.

In today’s Washington world, where agency budget requests are routinely cut by Congress, the message is clear.

Of course, it is still early in the budgeting process, and what the House giveth, the Senate may taketh away.  The pointed comments notwithstanding, the FAA must be breathing a collective sigh of relief that Congress is still standing behind them on the UAS initiatives.

A good, concise overview of where we are.