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 Jake Stew on December 1, 2014 at 8:00pm

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.

Dude, you're embarrassing yourself.  Causby sued the FAA for flying over his property and he WON.

Your mental state certainly is in question here.

Comment by Pedals2Paddles on December 1, 2014 at 8:06pm

Ok. You know what. Fine. Believe what you want. You're entitled to be wrong.  Enjoy your happy "private airspace" that doesn't exist.  I'm sure it makes you feel special.

Comment by Jake Stew on December 1, 2014 at 8:23pm

I'm kind of getting tired of this argument.  It has failed to result in any constructive discussion.

The attitude of blasting someone like they're talking gibberish and failing to even make an attempt at logically addressing their points is highly disrespectful.

Now is probably a good time to point out that recent cases have shown that this area of law is in total flux.  People who have spent their whole lives studying law disagree on the issue.  So to pretend that one side is 100% right and anyone who disagrees is an idiot... really makes you look like an idiot.

See FAA v. Pirker.  A court ruled the FAA had no authority to regulate drones.  This was appealed to the NTSB and remanded back to the lower court.  So this case is NOT settled.  Pirker won, beating the FAA, and the NTSB called a do-over.  This was over public property, so it doesn't even address the issue of if they can regulate private airspace.  So let's stop being asses and claiming that anything is clear cut, or even settled in any manner.

To change things up I decided to take my own advice and look for some case law to enlighten us.  Here's what I found...

http://dronelawjournal.com/

The federal government has no authority whatsoever to regulate the operation of remote-controlled model aircraft.

Despite what you might have seen, heard or read to the contrary; despite the FAA’s claim that it has authority over RCMA; despite the FAA having sent several cease and desist letters, (obtained recently via FOIA request by Attorney Patrick Mckay), to persons who were operating RCMA for commercial purposes, there exists not a single federal statute, not a single federal regulation and no case law that in any way regulates the operation of RCMA.

None.

Federal statutes, regulations and case law concerning RCMA do not exist.

In the absence of any federal statute, regulation or case law that prohibits a particular activity, that activity is completely legal. That's how the law works. Nothing is illegal solely because a government agency claims that it's illegal. There must be something engrossed in our bodies of law that actually states that it is illegal. Since there is nothing at all in our bodies at law that make it illegal, at this time, RCMA are completely unregulated federally, and anyone is free to operate them in any manner they wish, whether for pleasure or profit, regardless of what the FAA might claim.

Please note that I am not asserting any opinion as to whether RCMA should ever be regulated. Rather, I am asserting that at this time, they are not federally regulated. Nor will they be anytime soon. Under Section 336 of the FMRA of 2012, Congress has dictated that the FAA will not be permitted to "promulgate any rule or regulation regarding a model aircraft." 

But the same Act will exclude RCMA's that are used commercially from the definition of RCMA, and the FAA will be able to promulgate rules and regulations for RCMA used commercially. Thus the exact same make and model of RCMA will ultimately be regulated if used commercially, and unregulated if used non-commercially. Since the FAA's primary reason for existence is safety, it begs the question how the exchange of money is even remotely related to safety.

[...]

Enforceable Law (versus non-Law or non-enforceable law.). Law, with respect to aviation, exists in three forms: federal statutes, federal regulations and federal case law, where the statutes and/or regulations have been interpreted. If no law exists in any of these forms, then no such law exists. One need not obey any law that does not exist.

[...]

The Federal Aviation Regulations Federal regulations are promulgated by the FAA and found in the Code of Federal Regulations. The federal regulations that pertain to aviation, (the "FARs"), are found in 14 CFR 1.1et seq., and have the force of law. There is nothing in the FARs that concerns RCMA. The FAA cannot just make up regulations as it goes along, to enforce activities that it simply wishes to enforce. There must exist an actual statute or regulation for the FAA to enforce. The FARs are the only federal regulations that exist pertaining to aviation, and are the only regulations that are legally enforceable. You'll not find any that concern RCMA. You will see regulations that apply to other craft, such as balloons, rockets and even kites. So the FAA clearly contemplated flight-capable craft other than airplanes and helicopters when it adopted the current regulations. If the FAA had intended to regulate RCMA as well, it would have done so. It didn't.

Comment by Jake Stew on December 1, 2014 at 9:15pm

I've cut-n-pasted too much already.  But I wanted to share something I found interesting.

This is a lawyers opinion on what the law is...

http://dronelawjournal.com/busting-the-faas-myth-busting-document/

He goes into many of the same points I made earlier.  I can't resist posting a little here to help people judge weather the link is worth reading...

Myth #1: The FAA doesn’t control airspace below 400 feet

Fact—The FAA is responsible for the safety of U.S. airspace from the ground up.

Nonsense. It is clearly established by both statutory and case law that the FAA’s authority over airspace is limited by statute to navigable airspace, which is defined as, “airspace above the minimum altitudes of flight . . . including airspace needed to ensure safety in the takeoff and landing of aircraft.” 49 U.S.C. § 40102(a)(32). The “fact” above asserts that the FAA has authority over all “airspace from the ground up,” which would include your backyard— from the tips of the blades of grass, upwards to infinity. Note that the FAA does not (and cannot) cite any federal statutes or regulations, or any case law to support this supposed “fact” because none exist.

If what the FAA is now claiming is true, that would amount to a “taking,” more specifically a regulatory taking by the federal government. And the Fifth Amendment to the U.S. Constitution requires the government to compensate those whose property it takes. So if what the the FAA is claiming is fact, (don’t get your hopes up because it’s not), the United States would owe all U.S. property owners a whole lot of money.

Comment by Mike Klinefelter on December 1, 2014 at 10:09pm

The reason your argument has "failed to result in any constructive discussion" is because you completely failed to provide anything related to the FAA authority to regulate all airspace.  In your cut-and-paste from http://dronelawjournal.com/ you missed a few important quotes .... like this:

"Nothing on this website is intended to be, nor should anything here be considered legal advice."

and this right at the top of the page:

"The NTSB has ruled that model aircraft are "aircraft" under the federal statutory and regulatory definitions, and that the FAA may apply the regulation that prohibits operation of an aircraft in a careless or reckless manner (FAR 91.13) to model aircraft. It remanded the case to the Administrative Law Judge to determine whether Pirker's operation of his drone in 2011 was careless or reckless. The NTSB did not address the issue of "commercial use" of drones."

You're trying to apply a "takings" case (U.S. vs Causby) to the FAA's authority to regulate aircraft.  In the Causby case,  the Court stated that flights over the land could be considered a violation of the Takings Clause (of the Fifth Amendment) if those flights led to "a direct and immediate interference with the enjoyment and use of the land."   And while the decision made mention of various heights above the surface of the ground and buildings in the court's rejection of the notion that a property owner owns above their property "to the heavens",  the court never defined a specific altitude limit related to "the enjoyment and use of the land."  And there is absolutely nothing in that decision that would limit the FAA regulatory authority to regulate aircraft anywhere.

The NTSB was clear in their recent decision that model aircraft meet the the federal statutory and regulatory definition of "aircraft" as state on the website you linked to.   The question isn't who owns the airspace, it's whether or not the FAA has statutory authority to regulate aircraft in the nation airspace system and what are the limits of the national airspace.  By your way of reasoning, if I were to fly a small manned aircraft and stay below 500 ft the FAA could do nothing about it.... or better yet since you changed your story, below 83 feet above the ground.  The only thing that could be done is to arrest me for trespassing, oh but the court didn't rule on trespass in Causby, so I guess i wouldn't be trespassing and I probably wouldn't be denying anyone "the enjoyment and use of the land" since I'm only flying over once.... so by your way of thinking, the FAA couldn't touch me if I fly a manned aircraft below your imaginary personal airspace limit.   Sounds pretty ridiculous doesn't it?

If you want to quote stuff on the interweb then why not quote this:  http://www.faa.gov/uas/media/model_aircraft_spec_rule.pdf

That's probably as valid or more so than some lawyer's website where he starts by explicitly stating that the none of what you chose to quote should be taken as legal advice.  

After this I think I'll join Pedels2Paddles in saying believe whatever you want and go ahead an keep quoting random unrelated stuff from the interweb.

Comment by Jake Stew on December 2, 2014 at 1:38am

Thank you for being constructive.  I don't see how anything I've quoted is "unrelated" though.  A quick search shows that the same material is often quoted as being relevant to the issue. i.e. cited in legal briefs and case law, etc..

Nothing on this website is intended...

Pretty standard disclaimer there.  Also pretty obvious that statements of legal fact and legal opinion are not legal advice.  In any case has no bearing on anything.

"The NTSB has ruled that model aircraft are "aircraft"

Certainly noteworthy, but doesn't necessarily have a bearing on my argument.  Pirker got fined for operating in a careless and reckless manner.  He was reported for operating from 10 feet to 1,500 feet.  So he clearly was operating in public airspace.  I don't think anybody has ever claimed that the FAA would not have jurisdiction over people who are flying in that manner.

You're trying to apply a "takings" case (U.S. vs Causby) to the FAA's authority to regulate aircraft.

Certainly.  When the gov. restricts or impairs the use and enjoyment of private property it's usually going to be a "takings" case.  If a court finds that preventing me from flying a drone has affected my use and enjoyment of my property then it's going to be a takings case.

the court's rejection of the notion that a property owner owns above their property "to the heavens",

Yes. They took away the heavens.  Actually, not so much took it as granted the FAA an easement through the airspace which couldn't be reasonably be used in connection with the land.  In any case, they explicitly state that they did NOT take all of the airspace, quite clearly stating there is a line at "immediate envelope" and "used in connection with the land".

if I were to fly a small manned aircraft and stay below 500 ft the FAA could do nothing about it.

The state DOT regulates vehicles.  Their authority doesn't extend to private property though.  I can drive unregistered, uninsured vehicles there all I want.  How would this be any different?

you changed your story, below 83 feet

That's what is explicitly ruled on in Causby.  The rest is not made explicit clear by the ruling.  My common sense opinion is that since <500 has never been explicitly taken from me by a court ruling or law, then I still own it.  I don't see any evidence to think otherwise.  There is certainly nothing with the force of law that says so.

It is clearly established by both statutory and case law that the FAA’s authority over airspace is limited by statute to navigable airspace, which is defined as, “airspace above the minimum altitudes of flight . . . including airspace needed to ensure safety in the takeoff and landing of aircraft.” 49 U.S.C. § 40102(a)(32).

(32) “navigable airspace” means airspace above the minimum altitudes of flight prescribed by regulations under this subpart and subpart III of this part, including airspace needed to ensure safety in the takeoff and landing of aircraft.

Someone earlier quoted FAR § 91.119   Minimum safe altitudes

91.119 is CFR title 14, so it does not apply to the definition.  Only Title 49 › Subtitle VII › Part A › Subpart I & III apply to the definition of "navigable airspace". (look up 3-4 lines above)

> the FAA regulatory authority to regulate aircraft anywhere.

I guess it would probably surprise you to know then that the FAA does not have the authority to regulate aircraft anywhere.  Specifically it only has the authority to regulate "civil" aircraft.  It does not have the authority to regulate "public" (aka government) aircraft.

That sounds right, of course they can't regulate military aircraft!  Yeah, but that also includes forrest service, USDA, police, etc..

So they don't have authority to regulate all aircraft, nor do they have the authority to regulate aircraft everywhere. (specifically only in the "navigable airspace" defined in 49 U.S. Code § 40102)

If anything is clear from all of this it is that the law is NOT clear and nothing has been decided at this point.  There's not even a consensus amongst legal experts on any of this, so it's time to stop pretending like everything you see printed has the force of law.

Comment by Andy Lee Robinson on December 2, 2014 at 3:46am

I really hope the FAA comes up with some (un)common-sense rules as our genie is not going to go back into the bottle easily.

You might find this interesting:

Drone Reports 2014: The Facts And The Fiction

http://www.techenstein.com/drone-reports-2014-the-facts-and-the-fic...

Comment by Jake Stew on December 2, 2014 at 11:33am

Great link!  Now that the press has fomented public fears and anger we're going to keep seeing more and more of these reports.  What people used to assume was that some kid lost his toy.  Now they assume it was a "drone" either spying on them or operating dangerously.

Comment by Gene Engelgau on December 4, 2014 at 6:36am

This is Gene with Fruity Chutes.  We are located in Silicone Valley and have been providing parachute recovery systems world wide for the UAS industry for about 4 years.  It would be nice to the the US market have a chance to catch up to our international business, which is very good.  The laws in other countries make a lot of since.  I guess the reality is that the FAA is simply not looking at how other more enlightened countries have put together reasonable rules that make operation straight forward...  I'm hoping this somehow works out!

Comment by Mike Klinefelter on December 4, 2014 at 9:45am

Gene, Chris, and anyone else that wants reasonable regulations that allow for all the beneficial uses of small UAS that allows our country to stay competitive in this burgeoning market should contact our Senator Diane Feinstein right away.  Here's a headline from yesterday's Forbes magazine:  Senator Feinstein Now Using Safety Concerns To Target The Drone Ind....  

So it looks like Senator Feinstein is targeting you Gene and you Chris (the Drone Industry). The paranoia in our society never ceases to amaze me.  I'm late to this game, but 2 years ago when I started down the path of figuring out how to use this incredible technology all I could see were the good things to use them for; agriculture, detailed mapping, environmental documentation, infrastructure management, cinematography, aerial photography, and on and on and on.  the whole regulatory environment has become so depressing here, especially now that the FAA has become emboldened with the NTSB ruling.  Essentially now they will probably now start coming after you (Gene and Chris), the commercial beneficiaries of SUAS technology, for any test flights that you do.  How the heck did we even get to this ridiculous place, it defies all logic?

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