WSJ scoop on forthcoming FAA rules -- pilots license will be required for commercial use unless Congress intervenes

Highly anticipated federal rules on commercial drones are expected to require operators to have a license and limit flights to daylight hours, below 400 feet and within sight of the person at the controls, according to people familiar with the rule-making process.

The drone industry has awaited commercial rules for about six years, hoping the rules would pave the way for widespread drone use in industries such as farming, filmmaking and construction. Current FAA policy allows recreational drone flights in the U.S. but essentially bars drones from commercial use.

While the FAA wants to open the skies to unmanned commercial flights, the expected rules are more restrictive than drone supporters sought and wouldn’t address privacy concerns over the use of drones, people familiar with the matter said.

The agency also plans to group all drones weighing less than 55 pounds under one set of rules. That would dash hopes for looser rules on the smallest drones, such as the 2.8-pound Phantom line of camera-equipped, four-rotor helicopters made by China’s SZ DJI Technology Co. Similar-sized devices are seen as the most commercially viable drones and have surged in popularity in the last two years.

Small-drone supporters say such models are less risky to people and structures than heavier drones like Boeing Co. ’s ScanEagle, a gas-powered, 40-pound aircraft with a 10-foot wingspan that can stay aloft for more than 24 hours. ConocoPhillips Co. uses the ScanEagle to gather data on Arctic ice pack and whale migrations.

In addition, pilot certifications likely to be proposed by the FAA would typically require dozens of hours flying manned aircraft, according to people familiar with the rule-making discussions. Drone proponents have resisted requiring traditional pilot training for drone operators.

FAA officials expect to announce proposed rules by year-end. The proposal will kick off a public comment period that is likely to flood the agency with feedback. It could take one or two years to issue final rules.

In a statement, the FAA said it is working to “integrate unmanned aircraft into the busiest, most complex airspace system in the world—and to do so while we maintain our mission—protecting the safety of the American people in the air and on the ground. That is why we are taking a staged approach to the integration of these new airspace users.”

The White House Office of Management and Budget is reviewing the current FAA proposal and seeking comments from other parts of the government, including the Pentagon and law-enforcement agencies. Last-minute objections could change some specifics and delay release of the proposed rules.

The agency has said it is moving carefully on drone rules out of concern for potential collisions with other aircraft and injury to people and structures on the ground.

Airline pilots and aircraft owners have supported the cautious approach. But some drone-industry officials predict a loud backlash to the proposal.

“I feel like there’s a colossal mess coming,” said Michael Drobac, executive director of the Small UAV Coalition, an advocacy group for drone makers and innovators, includingGoogle Inc. and Amazon.com Inc. The rule is going to be “so divorced from the technology and the aspirations of this industry…that we’re going to see a loud rejection.”

Unmanned aircraft have proliferated in U.S. skies as technology makes them smaller, cheaper, more powerful and easier to fly. While the FAA has helped build unparalleled safety into passenger air-travel with strict manufacturing and operating rules, the system didn’t foresee thousands of small aircraft buzzing around at low altitude.

The FAA’s current policy allows commercial drone flights only with case-by-case approval. Officials have authorized just a handful of companies so far.

Still, thousands of entrepreneurs are believed to be flying the devices without FAA clearance, making it hard for those operators to get insurance.

Some government and aviation-industry officials are worried about surging use without meaningful oversight. Pilots are increasingly reporting midair drone sightings, including three near John F. Kennedy International Airport in New York last week.

Drone proponents say the U.S.’s regulatory approach is less accommodating than in other countries. This month, Canada plans to issue blanket approval for all commercial operations that use drones weighing less than 4.4 pounds as long as they comply with certain safety standards, such as altitude limits and no-fly zones around airports.

The FAA must “properly balance regulatory restrictions and the safety risks posed by” various sizes of unmanned aircraft, said Ted Ellett, a former FAA chief counsel who now is a partner at law firm Hogan Lovells US LLP. Mr. Ellett said a “one-size-fits-all” approach “will create yet another unnecessary and costly impediment.”

Gretchen West, former executive vice president of the Association for Unmanned Vehicle Systems International, the nation’s biggest drone-lobbying group, said large, powerful drones like those used by the military got more attention when the FAA began working on the rules.

Since then, much of the growth has shifted to smaller drones. The expected rules are “going to be very restrictive for small systems,” she added.

Jesse Kallman, head of regulatory affairs for drone-software firm Airware, said requiring commercial drone pilots to have cockpit training “will end up excluding someone who has hundreds of hours of experience on an unmanned aircraft in favor of a pilot who understands how to operate a Cessna but not an unmanned aircraft.”

In exemptions granted to six filmmaking companies to use drones on film sets earlier this year, the FAA required operators to have private-pilot licenses.

The FAA’s draft rule is expected to require lower-level pilot certifications requiring fewer flight hours, according to people familiar with the matter.

One former FAA official said the agency is concerned that statutes bar it from authorizing commercial aircraft operations that don’t have a certified pilot.

The agency is drafting language asking Congress for greater flexibility, this person said.

The planned 400-foot flying limit within the operator’s sight largely follows the FAA’s current rules for recreational uses of drones. Those rules are based partly on voluntary guidelines for model aircraft published by the agency in 1981.

Drone proponents say the FAA is relying on decades-old regulations that don’t account for advancements in technology. Many drone pilots use “first-person view” technology allowing them to rely on real-time footage from a drone’s camera broadcast to their controller or headwear that resembles virtual-reality visors. Users can add infrared and other sensors for night or low-visibility missions.

The FAA’s expected requirement for daylight flights within the operator’s sight would essentially prohibit many commercial applications, such as pipeline inspections and crop monitoring on large farms.

The FAA is awaiting data from a number of test sites before proposing regulations affecting drones that weigh more than 55 pounds. That process is expected to take at least several years. Until then, many states and local governments are likely to establish their own standards.

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Comment by Josh on December 1, 2014 at 12:03am
After doing some reading today it looks to me like it's not the FAA that we need to worry about its the National Agricultural Aviation Association, seems to me they are the ones that have problems with uav's getting to use the 0-400ft airspace they currently have free reign on.
Comment by Jake Stew on December 1, 2014 at 1:02pm

@ Jake Stew, You are incorrect.  The notion of 0-500ft being "private" is completely wrong.  And the notion of no real aircraft being allowed below 500ft is also completely wrong.  You keep saying this over and over.  And people keep correcting you over and over.  You are completely incorrect about every bit of what you're saying.  Sorry. 

Where have I been "corrected"?  All I've seen is a lot of hot air.

I've posted quotes and links to common law and supreme court decisions many times here.  Where is your evidence of anything different?

Show me a law that says anyone other than me has ownership of my private airspace, or quit posting like I'm some kind of idiot that won't listen to all these experts that actually know what they're talking about!

The FAA has the authority to regulate "national airspace".  So show me what ruling or law decided that my private airspace has been taken away and given to the FAA as national airspace.

Every quote or law posted that I've seen either does not address the issue, or relates to "national airspace", or says that "aircraft must stay above 500 feet".

Post some facts that show me wrong, or quit acting like I'm talking out my ass with no reasonable basis for my statements.

We need to get entirely off the "kid flying in the city park" attitude completely here.  Operating over public or other people's property is DANGEROUS.  We have no legal basis to demand ANY rights there.  The people or govs. that OWN that airspace have 100% authority to do WHATEVER they want there.  So there is no point trying to fight for rights that we've never had in the first place.

What we do need to do is insist that responsible drone operators KEEP the rights they have.  Being responsible means operating in airspace that you have the legal right to be in.  Operating in airspace that you have legal 100% exclusive right to be in is SAFE.  It's your airspace and all the property that could be damaged is YOUR property.  Nobody else has the right to be there, so there are no concerns there.

People should be flying over safe, privately owned property.  We all want to fly over our lands, other people's private lands that we have permission to use, and private club airfields.  We're never going to get permission to fly willy-nilly over public lands and inside city limits.  That is dangerous and there's no point in trying to get that right, it's never going to happen.

Comment by Pedals2Paddles on December 1, 2014 at 2:24pm

The only hot air is coming from you.  Your private airspace was not taken away.  You never had it to begin with because there is no such thing.  The national airspace is ALL of the airspace.  And that includes your delusional 500ft private column of air.  Aircraft are permitted below 500ft, and that does include inside your delusional 500ft private column of air as well.  None of this is new.  None of this has changed.  This is the way it has always been.

Class G airspace extends from the surface to 1,200ft.  And guess what's allowed in class G airspace.... omg! PLANES.  The area around airports can be class C, D, or E airspace from surface up as high as 10,000ft.  And guess what can be in that airspace too!!!???? PLANES.

And since you want me to cite evidence, I will.  And I'll use real evidence.  Not your internet rumors.  This is all in addition to take offs and landings.

Federal Aviation Regulations (FAR)
§ 91.119   Minimum safe altitudes: General.

(a) Anywhere. An altitude allowing, if a power unit fails, an emergency
landing without undue hazard to persons or property on the surface.

(b) Over congested areas. Over any congested area of a city, town, or
settlement, or over any open air assembly of persons, an altitude of 1,000
feet above the highest obstacle within a horizontal radius of 2.000 feet of the aircraft.

(c) Over other than congested areas. An altitude of 500 feet above the
surface, except over open water or over sparsely populated areas. In that
case, the aircraft may not be operated closer than 500 feet to any person,
vessel, vehicle, or structure.

(d) Helicopters. Helicopters may be operated at less than the minimums
prescribed 
in paragraph (b) or (c) of this section if the operation is conducted
without hazard to persons or property on the surface. In addition, each person
operating a helicopter shall comply with routes or altitudes specifically
prescribed for helicopters by the Administrator.

(1) A helicopter may be operated at less than the minimums prescribed in paragraph (b)  or (c) of this section, provided each person operating the helicopter complies with any 
routes or altitudes specifically prescribed for helicopters by the FAA; and

(2) A powered parachute or weight-shift-control aircraft may be operated at less than the  minimums prescribed in paragraph (c) of this section.

Comment by Mike Klinefelter on December 1, 2014 at 2:36pm

Nice job Pedals2Paddles on summarizing that.  Obviously Jake Stew does not have a private pilot certificate or any other form of certificate issued by the FAA or he would know what Class G airspace is.  Just because it's "uncontrolled airspace" doesn't mean it's not part of the "National Airspace System".  It's exactly that type of misinformation that's creating the problems with the FAA and one of the reasons that they are going the direction they appear to be going.  Without some form of formal training, you have all sorts of rumors floating around out there and where you can fly your RC aircraft and what you can do with it.  It's rather amazing with all the resources that are available on the intewebs that people can't do basic research and figure these things out for themselves, but obviously as we've seen here, they can't.

Comment by Jake Stew on December 1, 2014 at 6:40pm

Really no need to get overly nasty.  I think there are some basic differences in understanding of legal principles here.

Because the FAA does not prohibit something does not make it legal to do so.

See United States v. Causby.  Unless this supreme court decision was overturned then property owners DO still own and have "exclusive control of the immediate reaches of the enveloping atmosphere."

Thus, a landowner "owns at least as much of the space above the ground as he can occupy or use in connection with the land," and invasions of that airspace "are in the same category as invasions of the surface." -United States v. Causby 328 U.S. 256 (1946)

The majority opinion cited the law (49 U.S.C. § 180) where Congress defined the "navigable airspace" in the public domain, as that above the "minimum safe altitude" which varies from 500 to 1000 feet depending on time of day, aircraft, and type of terrain.

To further educate yourselves see...

http://en.wikipedia.org/wiki/Air_rights

NPR did an interview with an actual law professor about exactly this issue here...

http://www.npr.org/templates/transcript/transcript.php?storyId=3170...

Just to make clear for all those out there that have a very weak grasp of law...

Prior to 1926 the legal principle was "Cuius est solum, eius est usque ad coelum."

whoever owns soil, it is theirs all the way to Heaven and down to Hell

in 1926 Congress creates what we now call the FAA and declared that the air above the minimum safe altitude of flight is a public domain. Above 500 feet roughly public property.

Then came Causby in 1946...

The court ruled landowners might not own the sky to the heavens but they do still own it up to at least 83 feet. To recap, congresses says above 500 feet this is a public highway. The air below 83 feet, according to the courts that belongs to landowners like Causby.

Again recapping... You own at least 83 feet of air over your property for sure, according to the supreme court.

84-499 feet is up for grabs.  The FAA has NOT been given any claim to this air as far as I can tell.  If you know case law that changes this then post it.

Amazing the poor level of legal understanding here.  We have lots of "experts" who spout irrelevant BS with no basic understanding of the legal system.  No offence, but just as a basic statement of fact... there's nothing more annoying and destructive to debate and learning than ignorant know-it-alls putting others down.  Calling citations of Supreme Court case law "internet rumors" really puts you in danger of falling into this category.

I've outlined pretty clearly the direct legal basis for my opinion.  Nothing has been presented here that calls any of it into question.  The FAA not prohibiting something does nothing to prove they have the authority to allow it.  Clearly if your argument were correct then Causby would have lost his case.

If you guys believe in your position that the actual rule of law agrees with you then here's what you need to do...

#1  Find a law saying the FAA has the authority to regulate the airspace we're talking about.  Not general aviation rules, not rules applying to pilots or aircraft construction, etc..

Now remember, below 83 feet is out.  So don't worry about that since unless you find another Supreme court decision reversing that, it is the law of the land.

#2 Find case law that UPHELD that law as constitutional and enforceable.

Let's try to have a constructive discussion that builds on our knowledge from now on.  We can all pull up irrelevant foolishness, argue definitions, and generally spout BS.  The way to establish what the rule of law is to establish authority/ownership and find case law to support it.

Yes, "you can't drive without a license" is true.  And you can cite reams of laws and case law proving it's true.  But the fact is, you don't need a license to drive on your own private property, only on public roads.  Your failure is a failure to establish the authority to regulate and then finding case law that shows it was upheld.

Comment by Pedals2Paddles on December 1, 2014 at 6:44pm

All of that is completely meaningless.  And did you seriously just cite Wikipedia? lol.  Your babble is wrong.  You do not own any airspace.  It is not private. You can't control it.  You can't restrict it.  You have no authority over it.  And you can word any which way you want.  The FAA and reality disagree with you. And that is all that matters.  Next.

Comment by Jake Stew on December 1, 2014 at 7:08pm

> And did you seriously just cite Wikipedia? lol.

No.  I cited a SUPREME COURT decision and a UCLA LAW PROFESSOR.

Your babble is wrong.

Tell that to the supreme court and a UCLA law professor.  Maybe he'll be so impressed with your legal knowledge that he'll offer you a full ride scholarship to law school.

You do not own any airspace.

Again, you'll have to take that up with the supreme court.  What I can guarantee you is that if anyone enters the bottom 83 feet of my airspace they'll be paying me for the right.

The FAA and reality disagree with you.

I don't care what the FAA says about airspace they have no authority to regulate.  If reality disagrees with me then prove it.  If I can't do what I want in my private airspace then show me case law.

There is a really disturbing failure to grasp BASIC concepts here.  Property ownership, rule of law, etc..  Scary that people like you may wander into my airspace.  Did they teach you none of this in high school?

I cited a supreme court decision and a UCLA law professor to explain it to you.  Even the legal history of how we got to this point.  I just don't understand what it will take to get you to wrap your mind around the common sense fact that people own the air over their property.

Comment by Pedals2Paddles on December 1, 2014 at 7:11pm

Because it is not a common sense fact.  You do not own it.  You do not control it.  You do not have any right to tell anyone what they can and cannot do in it.  And you certainly have no right to charge someone to fly through it.  You never have.  You never will.  And no, they don't teach your delusion in high school.

Comment by Jake Stew on December 1, 2014 at 7:48pm

Ok, just stop.  Air rights are bought and sold all the time.  The rest of what you're saying is in direct contradiction to a very clear supreme court decision that I've posted many times now.

When you're presented with something that clearly contradicts your beliefs and refuse to revise them that is mental illness.

Again...

A landowner "owns at least as much of the space above the ground as he can occupy or use in connection with the land," and invasions of that airspace "are in the same category as invasions of the surface." -United States v. Causby 328 U.S. 256 (1946)

It doesn't get any more clear than this.  You own the airspace in same way that you own the land.

Here's more, just to highlight how common sense this legal principle is...

"if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run"-United States v. Causby 328 U.S. 256 (1946)

I don't know how else to put this to you.  In legal terms this is like playing an ace card.  It is the highest form of law, nothing else beats this.  The only thing that can beat this is playing another ace on top of it, e.g. a more recent supreme court ruling that overturns this decision.

Until the supreme court overturns this you own all the air below "navigable airspace", which is FOR SURE at least 83 feet.

Comment by Pedals2Paddles on December 1, 2014 at 7:52pm

No it's not. You are interpreting (twisting) that to suit your own person delusion. My mental state is not in question. You continue to be wrong. You have no legal authority or control over what flies over your property. The end.

I have an idea, the next the time state police helicopter flies over your house inside your "private airspace", send them  a bill.  See how far you get.

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