Comments and Commentary on UAS are interesting, insightful and controversial

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UAS, sUAS, drones, RCP and like aircraft are sources of considerable controversy. The volume of the advocacy may be attributable to the vehemence of the industry and/or their diatribe may be driven by the FAA’s real or perceived all due deliberation in moving on the rules.

The issue of UAS regulatory policy has dominated any number of websites, the general news and the FAA comment docket. Some of the authors’ choice of words and arguments is less than exemplary and really not likely to convince the FAA of the wisdom of the submitters’ proposed position. Some are both articulate and insightful. The three documents linked below are worthy of some further analysis.

The first article is written by a partner in a law firm with extensive aviation experience. He reviewed all of the submissions to the FAA docket on the Section 333 exemption process as of the date of his writing. By the numbers the pro’s and the con’s were equal in number. The positive comments cited the agency’s careful review of the issues, safety priority and the value of exemptions in developing a permanent UAS policy.

The critiques addressed the need for piloting skills and the adequacy/inadequacy of “detect and avoid”. In order to pilot these vehicles, it was argued, requires knowledge and technical competence of a level usually found in certificated airmen. Technology for the UAS, it was said, should be at the ADS-B level to assure that one of these vehicles will not inadvertently hit a larger aircraft operating in the same airspace.

The last paragraph of this posting is quite interesting:

Finally, a theme expressed in both the pro- and con-comments is the perceived unfairness of a special exemption for movie makers.  Those in favor of the exemption stated that the movie industry should get their exemption, but only if all commercial operators get similar exemptions.  A number of those against the petition argued that the movie industry should have to wait in line with everyone else for the sUAS rules before they can operate.”

This comment is much juxtaposed to the last link below.

The second link was posted by another law firm and it examines the FAA internal guidance for its field personnel in their addressing of a UAS fact situation (this Alert is not part of the docket, but its analysis is useful). Called “Education, Compliance, and Enforcement of Unauthorized Unmanned Aircraft Systems Operators,”. Notice 8900.268 it counsels the Aviation Safety Inspector to use “outreach and education to encourage voluntary compliance’, that is, that the field personnel should not immediately use enforcement as a tool (that general principle is drawn from the agency’s standard approach FAA Handbook 8900.1, volume1, chapter 3, section1, para. 1-156). ASIs have not historically relied on the “coaching” technique; it will be interesting to see how the field follows this direction.

This Legal Alert then explains what to expect if the enforcement process is invoked and sets forth the nasty tools which the FAA can use. Notice 8900.268 provides a very valuable insight into how to avoid an enforcement level response by the FAA—“an operator is uncooperative or intentionally noncompliant or the operation poses medium to high risk to the NAS”. Those are very important words, they mean

  1. 1. “do not argue with the ASI’,
  2. 2. “do not assert that you know the FAA’s rules and that the FAA has no basis for their regulations”,
  3. 3. “do not explain that the FAA’s compensation rules are unenforceable” and
  4. 4. “do not operate near airports”, probably also at heavily attended events, densely populated areas, news events, etc.

You may have heard arguments 2 + 3 from lawyers and they may be valid. But remember, if the FAA brings an enforcement action against you, you will be paying your counsel dollars to defend you; the FAA lawyers are paid salaries as part of the agency’s budget. You may win, but it may cost a lot.

A better approach, when an ASI greets you with a complaint about your UAS flying, is to say you did not know that your flying was a problem, accept the counseling graciously and acknowledge his/her authority (a big point with some ASIs). Then, the best technique is to ground your UAS until the final rule is issued; any second encounter with an ASI (even another person) will result in the full weight of the FAA on your continued, intentional violation of the FARs.

One more thought: if you think that in the future, you would like to earn an income from an UAS, one criterion for FAA certification is called compliance disposition. The FAA would regard someone, who repeatedly violated their rules, as an applicant with a demonstrated disposition to violate their rules. Grant of a certificate is an exercise of considerable discretion; it involves a privilege more than a right.

The last link is the letter from former Senator Dodd, Chairman and CEO of the Motion Picture Association of America and former FAA Administrator Marion Blakey, President and CEO of the Aerospace Industries Association to Michael Huerta, the current FAA Administrator on the subject of the pending exemption request of MPAA’s members to operate sUAS. Their joint letter recites the historic nature of both of their industries and their combined impact on the nation’s economy. The letter recites in detail the FAA’s slow deliberation on this critical rule. Nowhere does the MPAA/AIA submission explicitly cite why the request is in the public interest nor does it mention how the exemption will provide an equivalent level of safety, the statutory criteria for granting exemptions. The tone of this docketed comment lends some credibility to the other commenters which expressed concern about “special treatment of the movie makers.”

The FAA extended the comment period; so there likely will be more interesting papers in the docket.

ARTICLE : UAS: Exemption Petitions and Public Comment . . . Let the People Be Heard!

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