The FAA issued a notice entitled Education, Compliance, and Enforcement of Unauthorized Unmanned Aircraft Systems Operations, Notice 8900.313.
It is likely that the cry for enforcement for safety issues may have precipitated this internal guidance. But this new policy is consonant with the SMS-inspired softer enforcement policy expressed in FAA 8000.373. Is this education first approach the right way to go with a segment of aviation which does not exhibit much compliance disposition? Or might a more balanced approach assure that the bad drone pilots do not damage the public’s support of this new industry.
Newspapers in San Diego, Arizona, New York City and around the country are calling on the FAA to take actions against UAS operators flying near airports, commercial airliners, the White House and other sites. The Air Line Pilots Association, perhaps one of the more NAS aviation savvy critics, has expressed concerns about UAVs and safety, especially with all of the reports of near misses. In addition, there are reports of many commercial operators of UASs flying for compensation or hire without the requisite §333 exemptions. A simple Google search produced a number of sites with companies offering their UAV services to third parties without any citation to existing §333 authority:
- Aerial & real estate videography
- Renting drones
- Drone pilots and
- Real estate, surveying, lessons, consulting, etc.
Even though there may be wording like “currently in application process with the FAA for Exemption 333,” these appear to be classical examples of “holding out.”
There is a sense out in the real world of drone operators that the FAA rules are not enforceable and that it does not have the resources to adequately surveil their illegal flights. The FAA acknowledged that it is personnel challenged and has asked that local law enforcement organizations for help.
In this UAS context, it appears that applying the principles of FAA 8000.373 is inapposite for the premise of the earlier order is that SMS is driving the certificate holders towards voluntary compliance or as stated in its preamble:
“To foster this open and transparent exchange of data the FAA believes that its compliance philosophy, supported by an established safety culture, is instrumental in ensuring both compliance with regulations and the identification of hazards and management of risk.”
The opening paragraphs of 8900.313 place primary reliance on education. Enforcement is listed as the third step (perhaps not seriatim) in the process after education and an informational letter. If neither of these steps leads the “violator” to voluntary compliance, then the last option is to be considered. Taking formal enforcement action is reached only if the person being investigated exhibits “uncooperative or intentionally noncompliant” attitude OR “the operation poses medium to high potential or actual endangerment to the NAS.” Those are words subject to considerable interpretation, particularly by field investigators.
Certainly, the recreational users should receive an opportunity to learn about the FARs and an investigator’s efforts to explain, for example, how to stay below 500’, will likely result in a complying UAS flier. Resolving when a drone is flying “over” persons or property is another lesson best exemplified by real field situations in many cases, but not all. This kinder, gentler approach may work for some incidents.
The general legal principle of ignorantia legis neminem excusat (Latin for “ignorance of the law excuses no one”) has relevance to many, if not all of the commercial UAS pilots. A person would have to be blind or illiterate not to know about the FAA’s efforts with regard to regulation drones. FAA Notices to the field are better when the language is unambiguous; Notice 8900.313 would provide better guidance with specific examples of drone flying which should immediately go to Chapter 5 of the current edition of FAA Order 2150.3, FAA Compliance and Enforcement Program, and the Compliance and Enforcement Bulletin No. 2014-2.
Field investigators have a history of interpreting the gray areas to their own personal enforcement approach (from hard to soft and all shades in between). Notice 8900.313 would result in an enforcement profile more appropriate for the current UAS operating world if illustrated by examples like:
- A drone operating in the proximity of a major aerial firefighting emergency—IMMEDIATE ENFORCEMENT ACTION perhaps including a criminal action)
- An sUAS flying near a sports stadium filled with spectators—educate how close is permitted
- Flying a small UAV in an open field with some light but past sunset—educate the pilot about the right standard
- A drone inspecting an antenna in a densely populated urban area with uncontrolled people below and without a 333 exemption—call Counsel to begin IMMEDIATE enforcement action and seek a cease and desist order
- A Power 5 Football Conference team using a drone to video tape its practice directly over the players- EDUCATE and given the high profile warnings to the NFL teams for the same use—a strongly worded INFORMATIONAL LETTER
- A Google search of UAS websites at which operators offer commercial inspection flights without 333 authority — IMMEDIATE ENFORCEMENT action and consider compromising the case if the response indicates an intention to comply.
- A YouTube Video adverting real estate posted by a small agent showing property for sale—#1; if the response truly evidences ignorance—EDUCATE; #2:if the response acknowledges that it was a violation, but immediately concedes that the drone will be grounded until a 333 is granted– a strongly worded INFORMATIONAL LETTER, specifically stating that the violation should not be grounds for denial; #3, in response to an FAA call/letter, the respondent states that the FAA has no authority– IMMEDIATE enforcement action and consider a cease and desist order;
- A person flies her/his micro drone over a car accident scene and the UAS has below commercial grade camera (no possible sale to a TV station)– educate the pilot about what’s impermissible overflying when people are below
- An inspector comes upon a Drone flying within feet of a power line tower inspecting it; the UAS is not sophisticated enough to assure to avoid contact with the charged wires; the operator does not have a 333 exemption– call Counsel to begin IMMEDIATE enforcement action (perhaps including a criminal action) and seek a cease and desist order.
The FAA faces a Solomonic choice— whether
- to encourage the development of the nascent UAS industry with an educational policy or
- to take immediate, strong efforts to assure that those who disregard the FAA rules, particularly those UAS operations which may have consequences causing the public to seek restrictions on the industry.
Notice 8900.313 tends to favor the lenient tact.
However, it is reasonable to fear that some random UAS could repeat the California fires incident or that some unauthorized commercial operator operating in a crowded urban area could cause bodily harm. If either such a bad case would happen, Congress, ever omniscient, would likely legislate a more restrictive regime.
Risk analysis might cause the FAA to assert its jurisdiction more aggressively than Notice 8900.313 guides the field. Goldilocks had a tough choice, but maybe the FAA should select the “just right” option?