Thanks to the investigative journalism of DYI Drones and the perseverance of reporter Patrick McKay, who endured the FAA’s usual FOIA phalanx, the UAS community has a picture of how the FAA field investigators have “enforced” the FAA’s rules about the operation of drones. Mr. McKay has made some interesting observations about the 237 enforcement cases (50 pages), which the FAA provided in response of his FOIA request. After you read his review, here are some thoughts about what these reports should tell the FAA and users.
→ The number one action listed in these Program Tracking and Reporting Subsystem (a registry of FAA Aviation Safety Inspectors Activity) reports was a letter sent by the FAA Field to the “UAS operator” to EDUCATE them. Usually a copy of Public Law 112-95 Section 333 and FAA Order 8900.268, the existing statutory and FAA policy guidance on UASs, was sent to the person involved. Sometimes, the Aviation Safety Inspector spoke to the individual to make sure that the drone pilot understood what the rules are. The common approach applied to both recreational fliers and commercial operators. Educate, not enforce, appears to have been the FAA policy and that policy was recently made formal by issuing an Order.
Within this category of educate were a number of case closures in which referral to §333 applications were made and in which the pilot evidenced compliance disposition. Those “get-out-of-jail-free” tickets should diminish. The national publicity has brought knowledge about the FAA’s rules to everyone. Ignorance should no longer be a standard excuse.
(a) As the FAA has noted, the drone flying community may rack up as many as 1,000 incidents this year. Threatening civil penalties of as much as $25,000 and a prison tour of up to 20 years, there are other actions which the FAA should take to proactively to reduce this rate of incidents.
(b) A series of highly visible enforcement actions may send a message to the UAS community that the FAA has teeth and will act harshly in response to unsafe drone flights. Voluntary compliance, the keystone to the FAA’s regulatory regime of all others, will occur more readily when one of its lawyers makes a federal case out of such UAS violations. As noted by Mr. McKay, there are only 2 enforcement cases in the FOIA response and one of them involved landing on the White House lawn.
→ The second largest of ASI actions was to close the investigation because it was IMPOSSIBLE TO IDENTIFY THE UAS. Though many of these reports indicate that the flights were violating the rules, no action was, could be, taken. Instead of closing cases, it appeared that many of these matters could have led to formal legal actions. The operators likely will continue their risky flights and may ultimately be the reason for some disaster. The FAA may consider two based on this simple observation:
(a) The agency has relied on its traditional methods of tracking airlines, pilots and others who hold some aviation authority. There are a number of “observable” events which allow the FAA to detect possible violations. In contrast, the take-off points for UASs are everywhere, not just airports. Thus, the geography which the FAA must surveil is immense. Under these circumstances, it may behoove the agency to create Designated UAS Observers; the FAA already relies on a number of designees to examine pilots’ health, aircraft airworthiness and a host of other safety related expertises. During the wars, many civilians were trained to be plane spotters; the Coast Guard supplements its capabilities with the Coast Guard Auxiliary. Why not a new DUASO or FAA Auxiliary? Such a dedicated set of trained spotters might be able to both see the UAS, and trail it to the operator.
(b) Another important seine in which to capture illegal drone flights would be registration of the UAS and the inclusion of an identification Number on the aircraft. Again those are traditional methods of FAA regulating aircraft. The N Number may be so small that other than an eagle eye, one could not see it; some onboard technology (like an RFID) might produce the ID information.
→ A third observation is that the FAA- Law Enforcement UAS connection has not worked as well as the agency may have hoped. There were many communications between the FAA and local police departments, going in both directions. None of the Reports included in the FOIA release closed with any formal or informal action by either. The FAA would greatly benefit from the network of the nation’s police departments, which cover all of the civilized US. Local law officers likely have little expertise in determining the altitude of these vehicles or applying the other FAA standards. Perhaps a stronger explanation of why a beat cop does not take the time to write up a drone is that they have other more pressing tasks, all forms of crime.
(a) It appears that the FAA needs to abandon its reliance on LEOs or create a meaningful educational video to deliver the necessary technical information. More outreach efforts may be worthwhile in order to create the knowledge needed to enforce and to put these aircraft somewhere in the list of police priorities.
(b) Maybe something like the range finder for golf could be adapted for UASs?
→ The records include a substantial number of cases, #4 in my unscientific accounting, in which either
- the ASI did not exhibit the zeal which they normally pursue Part 121 airlines (i.e. the FAA office computer blocked access to the drone operator’s website; one ASI when told that the operator had a §333 exemption closed the file because he was unable to verify that claim of authority) OR
- the notes indicate that the regional Flight Standards Office primary officer on UASs did not provide adequate guidance for action.
Both of these common excuses are symptoms of a lack of interest/enthusiasm at the field level. The FAA’s recent articulation of its primacy of education over enforcement as to UAS cases may lead to further non-enforcement tendencies.
(a) This failure of some, not all, of the field to regard UAS as a priority may have a number of reasons. As the UAS community has complained, the very specific standards of draft Part 107 are not yet applicable. The FAA has the authority to make the NPRM effective immediately subject to amendments which are appropriate after reading the public docket. Taking such emergency action will both get the attention of the FAA field and of the drone pilots.
(b) It is difficult to set a national policy involving judgment. A violation to ASI (i) is no problem to ASI (ii). That said uniform application of this rule is absolutely essential to the success of this nascent business. Too soft in enforcement could result in irresponsible drone flying and that could be the cause of a defining accident. Such an event would be harmful to those involved, but disastrous to the industry’s reputation. A tough enforcement stance could harm the learning curve in the early days of development. The Goldilocks Principle is hard to attain but should be the goal. Careful management of the message from the Executives to the Field of the balanced UAS enforcement will be critical to obtaining voluntary compliance while yet letting the drone business grow.
No one said, except a few unrealistic advocates, that introduction of the UAS into the National Airspace System was going to be easy. The FAA has successfully fashioned a regulatory regime based on analyzing data; perhaps a team should examine these and other numbers to try to establish that delicate balance.