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How the FAA Is Regulating Small Drones

By David Elser, Business and Commercial Aviation

As you read this, a new Federal Aviation Regulation applying to the registration of small UASs (sUASs), or drones, may be in place. (As BCA went to press, the FAA issued a rule for registration of small UAS weighing 0.55 lb. to less than 55 lb.–Ed.) And if so, it will have been codified in possibly record time, with industry and retailer input but no public commentary period as is the accepted procedure for rule making (i.e., a Notice of Proposed Rulemaking, or NPRM).

While it has been more than three years since Congress directed the FAA to develop and implement policies and rules integrating UASs into civil airspace, the aviation authority cruised through its Sept. 15, 2015, deadline with no regulations applying to either large or small drones in sight — and this after more than 4,500 public responses were received during the NPRM commentary period last winter. (FAA solons had promised the regs would be promulgated by this June, but few in the aviation community hold much faith that the industry will see anything until at least the end of 2016.)

But in both the aviation industry — especially among flight crews and airport managements — and the lay public, a critical mass of concern was reached last summer over the number of near-collisions between full-size piloted aircraft and small drones, persistent incursions of micro UASs into controlled airspace, and generally irresponsible operation of multi-rotored mini helicopters endangering people and property by hovering over accidents, natural disasters and public events in order to take photos and videos. By autumn, the FAA was receiving more than 100 reports of small drone incidents a month, nearly all of them involving recreational, or noncommercial, operators. Meanwhile, the process of implementing meaningful regulation of civil drone operations plodded on.

What finally galvanized the FAA and its Cabinet-level overseer, the Department of Transportation (DOT), into action were predictions by the UAS industry that between 700,000 and 1 million small drones would be purchased as 2015 holiday gifts in the U.S. (Earlier last year, Frank Wang, founder and president of the preeminent small drone manufacturer, China’s DJI, stated that his goal was to sell more than 1 million of his company’s products a year worldwide.)

The Party’s Over

So the pressure was on the FAA to do something quickly to curb irresponsible behavior among small drone users. On Oct. 19, Transportation Secretary Anthony Foxx called a press conference to announce that the FAA would mandate registration of recreational drones (except RC toys) via a hard regulation scheduled to be in place by (gasp) mid-December to hopefully get in front of the holidays so that word could be passed to gift recipients that small, sophisticated drones come with legal responsibilities, violation of which could lead to prosecution, fines and other sanctions. And that through the registration process, they’d be required to identify themselves to the federal government, indicate they had educated themselves with safe operating guidelines and agreed to follow them before they could fly. In addition to new drone purchases — the anticipated holiday sales — the registration requirement would be extended to the million or so sophisticated small drones already in the field.

To get the process started and work out the details, Foxx convened a task force of stakeholders to serve as an Aviation Rulemaking Committee (ARC) with orders to produce a report of recommendations for the registration rule by Nov. 21. There would be no NPRM or public commentary period. Shazam, instant FAR. Well . . . maybe.

The ARC was composed of 25 representatives from the government, the UAS industry, aviation advocacy groups including the Air Line Pilots Association (ALPA), NBAA, Aircraft Owners and Pilots Association (AOPA), General Aviation Manufacturers Association (GAMA), Helicopter Association International (HAI), Academy of Model Aeronautics (AMA), American Association of Airport Executives (AAAE), Association for Unmanned Vehicle Systems International (AUVSI) and others including small drone retailers Amazon, Best Buy and Walmart. For the full list visit here.

The initiative represents a policy reversal for the FAA, which had steadfastly maintained it would not require registration of hobbyist-operated drones. (Operators using drones in commercial applications, i.e., for hire, must apply for and receive approval under a Section 333 exemption, which itself is a form of registration.) Prior to the registration announcement, the FAA’s position was that its published guidelines in Advisory Circular 91-57A for radio-controlled model aircraft and subsequent “Know Before You Fly” education program were sufficient to keep recreational drone operators in line. But the subsequent spike in small drone incidents demonstrated the inadequacy of self-regulation. As Secretary Foxx put it, something with teeth was necessary as “a basis for us to go after” the bad actors who were endangering actual aircraft or otherwise operating their drones irresponsibly.

At the DOT announcement, Foxx said that, as a basis of the registration program, the DOT and FAA would build on requirements already in place in the Section 333 exemption program for commercial operation of small drones, i.e., anything less than 55 lb. gross weight. (See Part 1 of “Drone Revolution,” BCA, October, for a detailed description of Section 333 exemption requirements.) The premise behind registration of hobbyist UASs is that the process would inform users not just of their responsibilities to avoid manned aircraft and controlled airspace but also that violations can lead to real penalties and, in the most egregious cases, even jail time.

Implicit, too, is that registration could provide a database of users the FAA could access to identify malefactors — assuming, first, that some type of registration number would be required for noncommercial drones (à la Section 333 exemption rules, which specify that operators must register their small UASs and that, if a special N-number is not requested, a random one will be assigned) and, second, that it would be possible to read it from the ground or retrieve wreckage from a crash with the registration number still legible. Hanging out there in the future (like a quadcopter parked in a stable hover) is the possibility of FAA-mandated equipage of small drones with transponders or some sort of electronic identification circuitry that could provide tracking and/or guide law enforcement officials to violators.

The actual mechanism for registration was not described at the October announcement. “We anticipate a streamlined registration process will benefit all small UAS operators,” an FAA spokeswoman told BCA via email. (For both parts of this report, BCA attempted to arrange interviews with FAA executives overseeing unmanned aircraft integration but was refused.) But how would the FAA round up users (or otherwise identify them) and force them to register? “We expect people will voluntarily comply with regulations,” the FAA rep said, “but we also recognize the need to get the word out. The registration task force is just starting its work and is tasked with addressing issues such as these. When these questions are settled, we will work to inform affected users.”

Do the Right Thing

In other words, people with nothing at stake but their privacy will see it to their advantage to volunteer themselves for registration, thus identifying themselves to a federal agency. But how realistic is that, we asked aviation attorney Bill O’Connor, a partner and co-chair of the unmanned aircraft practice group at the Morrison and Foerster law firm in San Diego. “The answer you got [from the FAA spokeswoman] is an admission that they are relying on people to do the right thing and that an additional level of education will prevent [bad behavior] into the future,” O’Connor said. “It’s naïve and an attempt for them to appear they’re doing something to address a perceived problem.”

Apparently FAA management believes drone registration is a form of behavioral conditioning. “One primary benefit of implementing a registration requirement for hobby and recreational operators is that it will influence their behavior and encourage a culture of accountability and responsibility,” the FAA spokeswoman quoted above said. “Much like registering a motor vehicle, registering a model aircraft/UAS will tie a specific person to a specific aircraft. Greater accountability will help protect innovation. This requirement will mirror the requirement currently in place for manned operations and commercial UAS operations.”
The logical approach to assuring registration would be through retailers, as point of sale would represent the most obvious way to get the word out or even conduct the registration procedure (although no such control would exist for drone operators already in the field). Another possibility, especially for online sales, might involve delivering the drone with some type of inhibitor preventing activation until registration and safe operating knowledge have been demonstrated on line (perhaps through a simple test), whereupon an electronic key would be issued that the owner would use to free the drone for operation. (This would be similar to the procedure for activating software purchased at brick-and-mortar retailers where the key and some printed instructions are the only contents in the box, and the purchaser then goes on line after the sale, enters the key code and downloads the software.)

Amazingly, given the short amount of time allowed and diverse interests represented in the task force, the ARC met Foxx’s deadline, delivering its recommendations on Nov. 21. The 16-page report can be downloaded from the FAA website. Other than defining the category of drones covered by the proposed regulation and details on who should be registered, the ARC neither offers realistic incentives for operators to identify themselves nor suggests sanctions the FAA could apply to make them do it. Point-of-sale registrations are disposed of in favor of a voluntary Web-based sign-in system. In other words, if the ARC recommendations are adopted by the FAA, the registration system would have no mechanism for forcing drone purchasers to register.

“The task force agreed that it was outside the scope of [its] objectives to debate or discuss the DOT secretary’s decision to require registration of sUAS or the legal authority for the implementation of such a mandate,” the ARC stated in the preamble to the report’s executive summary, thus validating O’Connor’s observation that the whole effort is simply for the sake of appearance.

The ARC’s justification for rejecting point-of-sale registration was couched in an interpretation of 49 U.S.C., § 44101(a), which stipulates that a person can only operate an aircraft when it is registered with the FAA. “As such,” the report stated, “the majority of the task force believes that the FAA cannot require registration of sUAS at point of sale.” Apparently, some ARC members were convinced that “maximum compliance” would be best achieved with point-of-sale registration and are encouraging the FAA to include it “as one of several options for registration.” However, other members insisted that “because the FAA’s authority extends only to operation of aircraft, point-of-sale registration cannot be mandated.” One is given pause to wonder how much the major retailers on the task force influenced this decision. In the report text, the possibility that an exception could be carved out of the cited U.S.C. section to specifically address registration of small drones at point of sale was never mentioned (even though this was supposed to be a process of rulemaking.)

In lieu of registering small drone operators at purchase, the task force recommends an alternative that would be “as easy as possible” while “not unduly burdening the nascent UAS industry and its enthusiast owners and users of all ages.” Not surprisingly, this would be either a Web-based procedure or a smartphone app “to encourage the maximum levels of regulatory compliance by making the registration process as simple as possible.” To “ensure accountability,” the ARC recommended that the FAA require that registrants provide their names and street addresses with the option of divulging their email addresses and telephone numbers.

It also recommended that this information be “shielded” and exempt from disclosure from Freedom of Information Act (FOIA) requests. Understand that if any of these suggestions are adopted by the FAA into the final regulation, there will be nothing to keep a consumer from buying a sophisticated small UAS, taking it out of the packaging and flying it into controlled airspace anonymously. There will be nothing requiring that the operator register with the FAA as a condition of purchase.

Owner-Based Registration

Also, the ARC solons suggested that the registration system be owner-based, that is, that registrants not be required to present any information on their drones, such as makes, models and serial numbers. Registrants would, however, have “the option” to provide serial numbers of their aircraft as a way of satisfying the drone “marking requirement” (see below).

Other salient points delineated in the report include:

Drone size covered by registration requirement. Through a complicated mathematical exercise (spoiler alert for the numerically challenged: lots of quadratic equations) intended to determine the threshold of mass that could result in damage to an aircraft in a collision with a drone, the task force concluded that the lower limit would be set at 250 grams (8.8 oz.), thus exempting most hobby-level or toy drones from the registration requirement. The upper limit would be set at 55 lb., the FAA’s existing maximum allowance for small drones. The registration requirement would apply only to outdoor flight.

Age limit for registrants. Consistent with the Children’s Online Privacy Protection Act, the task force recommended that registration would apply to drone owners 13 years of age or older and that children younger than 13 can operate small drones only under a parent’s or guardian’s registration, thus adults responsible for children given drones must be registered instead.

Certificate of registration. The task force recommended that the FAA issue a certificate of registration to registrants either electronically via the Web or a paper copy by mail stating the registrant’s name, FAA-issued registration number and address of the FAA registration website allowing law enforcement agencies to confirm drone owners’ registration status. The identities of all registrants will be entered into a unique FAA database.

Training and education. Contingent on receiving registration status, the applicant would be required to acknowledge receipt of small drone operational guidelines. This information would be based on the existing “Know Before You Fly” program. No demonstration of knowledge (i.e., some type of exam) would be required.

Drone marking. “Because the main goal of registration is to create a connection between the aircraft and its owner,” the ARC report states, “the task force recognizes that it is necessary to mark each registered sUAS with a unique identifier that is readily traceable back to its owner.” Two options are presented: Owners can affix their FAA-issued registration numbers to their drones or meet the requirement through the manufacturer’s serial number permanently recorded on the aircraft. (And can’t you just hear the buzz of Dremels as the bad boys grind the serial numbers off the chassis of their drones?)

Penalties and enforcement. The task force recommended that the FAA establish “a clear and proportionate penalty framework for violations.” Noting that the current aircraft registration-related penalties (upward of $25,000) were established to address drug trafficking in unregistered aircraft and tax evasion schemes, the ARC calls on the FAA to develop a penalty schedule that would be “reasonable” and distinct from traditional aviation.

But nothing in the report suggests a realistic and effective means of forcing sUAS owners to stand up for registration. And the droves of recreational owners already in the field have no incentive to present themselves for registration other than the vague threat of penalties, which is unlikely to impress the rogue operators and thrill seekers intent on mischief like buzzing manned aircraft (see below).
At this time, O’Connor sees only two options open to the FAA: Rely on the good faith of users to voluntarily register their drones or perhaps convince the manufacturers to make software downloads conditional on registration. “What if you have a Phantom, and DJI is offering an update, but you have to download it, and up pops a screen telling you that you can’t get the software unless registered. But I don’t think anyone wants to take on that responsibility, as it’s a liability and risk issue.”

So in the long run, probably the most effective incentive for forcing existing owners to step up and register their drones will be deterrence in the form of prosecution, fines, or even jail time, if discovered. As it is, failure to register a certificated manned aircraft constitutes a felony punishable by fines as high as $250,000 and up to three years in the slammer. This is the word the feds need to get out.

“It’ll be real interesting to see how it develops,” O’Connor concluded. “They’re trying to do something quite significant in a really short period of time and have no answers for it, and the commitment to do it before the holiday season seems unrealistic.”

And the FAA Moves Against an Alleged Illegal Commercial Operator

In the commercial realm, Section 333 exemption holders are already registered as a requirement for approval. On Oct. 6, 2015, the FAA issued its first violation of a small drone operator since the Raphael Pirker case in 2012 (see sidebar), accusing Chicago-based real estate photography company SkyPan International of illegal operations on 65 drone flights between 2012 and 2014 over Chicago and New York City. Obviously intending to make an example of SkyPan, the FAA has proposed a $1.9 million civil penalty against the operator. The irony here is that SkyPan International was granted a Section 333 exemption on April 17, 2015.

The FAA claims that SkyPan, which operates a proprietary mini-helicopter UAS (not a multi-rotor) to perform panoramic cityscape photography for high-rise builders, owners and the realtors representing them, conducted “unauthorized operations” in congested airspace over densely populated areas, “violating airspace regulations and various operating rules” to perform aerial photography. Forty-three of the flights over Manhattan are alleged to have taken place within Class B airspace without ATC clearance.

Returning to the subject of FAA subpoena power, attorney O’Connor said “there were subpoenas enforced there because [the FAA was] investigating the company, and that’s how they got the information on the allegedly illegal flights they were conducting. They fought over it for more than a year.”

In its own defense, SkyPan claims on its website that it operates its drone only in what it calls “privately owned airspace over the private property of its clients,” never over “people and public spaces,” never “higher than surrounding structures” and never penetrating “navigable U.S. airspace as defined by the FAA.” (Section 333 exemption rules prohibit small UAS flight above 400 ft., so it would be interesting to know the height of the “surrounding” buildings on SkyPan’s photo jobs.) Further, the company claims it “proactively contacted the FAA in 2005, 2008 and 2010 to explore special permitting for its commercial UAS activity.”

The FAA also cited SkyPan for operating its drone without an Airworthiness Certificate, two-way radio, and an encoding altimeter and transponder. Say what? In an unmanned aircraft? That seemed like a contradiction, so we asked the FAA to explain. None of these are required for operation under a Section 333 exemption — which SkyPan didn’t have when the alleged violations occurred. “The equipment described in the civil penalty letter [which SkyPan received from the FAA] is required for aircraft to operate in Class B airspace unless otherwise authorized,” the spokeswoman quoted earlier said. “Skypan elected not to seek authorization [per the ‘unless otherwise authorized’ language], so they were required to comply with the regulations regarding Class B operations.”

This is a roundabout way of saying that SkyPan was functioning as an unapproved UAS commercial operator. Because the company didn’t hold a Section 333 exemption at the time of the alleged infractions, the AC and equipage requirements were not “exempted.” (These are among the items from which petitioners request exemption when they file for Section 333 approval to operate commercially.) Thus, the FAA could move against SkyPan for alleged illegal operation in Class B airspace as well as operating an aircraft “in a careless or reckless manner so as to endanger lives or property.” SkyPan had 30 days to respond after receiving the FAA’s enforcement letter.

O’Connor, who has a background in aviation law, formed the drone practice group at Morrison & Foerster in 2014 after noting the rapid growth of the UAS industry. “It’s a new legal frontier,” he observed. “I recognize the huge challenge the FAA has to meet.” His team is keeping an eye on the regulatory and policy issues relating to small UAVs such as “more sophisticated items” like airspace management and ATC. “We’re also advising clients with interesting objectives involving unmanned aircraft,” he said. BCA asked what they were, but he refused to say.

Don’t Buzz the Cops

As BCA went to press, two more incidents of drone jockeys operating their small UASs recklessly came to light, both cases in California involving recreational users. In the first, a 57-year-old man was accused of buzzing a Los Angeles Police Department helicopter with his drone last August while the chopper was engaged in searching for an alleged assailant armed with a deadly weapon over East Hollywood. Following apprehension, police confiscated the man’s $6,000 drone, and the operator pled no contest to charges of obstructing police. He was subsequently ordered to perform 30 days of “community labor” and ordered not to fly any unmanned remotely piloted aircraft during three years of probation.

It is unclear how law enforcement officials located the errant drone operator after the buzzing incident. Of note, however, is that the L.A. City Council has criminalized via an ordinance the FAA’s guidelines for drone operation, e.g., 400 ft. AGL maximum altitude, no night flying, no flight near manned aircraft or within 5 sm of an airport, etc.

While feds and the aerospace industry seek sophisticated electronic solutions for identifying remote drone operators, a California Highway Patrol helicopter pilot has employed a resourceful low-tech method of IDing drones flying dangerously close to manned aircraft, at least a night, and nailing their operators. In early December, a CHP AStar helicopter patrolling a highway at night on the north side of San Francisco Bay nearly collided with a small drone at 800 ft. AGL. The pilot, who claimed to have seen the drone’s red lights coming toward him, took evasive action to avoid a collision, and the drone passed to the helicopter’s left, very close.

The pilot then circled back and illuminated the drone with the AStar’s intensely bright spotlight, following the UAS to a nearby residential area. The pilot watched the drone land in a cul-de-sac, noted the address, and reported it to local police. When the cops arrived, they witnessed a man carrying the drone away and detained him for questioning. A CHP spokesman was quoted by the San Francisco Chronicle that, while the man was not charged, federal authorities would be called in to investigate the incident.

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