Contrary to the Critics, the FAA will regulate UAS within the Act and with Common Sense

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The premise of the IEEE article (below) is that the FAA is attempting to regulate the emerging UAS sector too broadly. To illustrate its point, a graphic with a paper plane and the shadow of a jet is included (somewhat replicated above). The author asserts that the regulator includes these two aircraft and thus unnecessarily stifles the business. In his opinion, it lacks “common sense”. This hypothetical has both a legal problem and an operational flaw.

The definition of what constitutes an “aircraft” and what is not included is not a matter of discretion for the FAA. Congress, in its inimitable wisdom, decreed in 49 USC §40102(a)(6) that:

“’aircraft’ means any contrivance invented, used, or designed to navigate, or fly in, the air.”

That precise language defines what jurisdiction the FAA has to regulate. The IEEE author then cites a different part of 49 USC which establishes what the NTSB may investigate. Based on that cross-reference, he argues that FAA should revise the UAS rules, based on his preconceptions. The author would not do well in a law school examination.

The NTSB in the Pirker decision is reviewing what Congress defined as the limits of the FAA’s jurisdiction and it found in a unanimous decision (the Board is currently composed of 4 members). If IEEE or any other of the omniscient UAS advocates feels as though these words are overly broad, they should address their petitions to their favorite Members of Congress to amend §40102(a)(6). Neither the FAA nor the NTSB can amend those words.

[Parenthetically, the most fascinating legal argument is that the FAA should ignore journalists’ drones {is that redundant?}. The First Amendment overrides the need to protect citizens who may be the crowd drawn to a newsworthy event to be covered by UASs?]

Operationally the FAA is responsible for the flight of all aircraft without regard to what altitude flown, the skill or care of the pilot, the weather or light conditions. Thus, its rules must establish standards for all of these variables and must articulate enforceable criteria. Without such a regime, chaos would be likely even if one can presume that each pilot will do her or his best under the circumstances.

It may be that a small UAS pilot will be responsible and only fly in a safe manner. However, if she or he is unaware about limits or chooses to put the UAS in an unsafe situation, the consequences may be catastrophic. For example, if a small UAS operates over a congested area (like a stadium) and the aircraft loses power, the people below may be injured.

At the other end of the spectrum, if a larger UAS flies above 400’ where a GA aircraft is flying, a collision could cause the plane to lose power or control; the consequences could be catastrophic. Another scenario involves nighttime UAS flights, even if the UAS aircraft has some lighting, the potential for a disaster is not insignificant.

All of the proposed conditions established for UASs find their roots in recommendations made by panels of industry experts. The FAA Administrator now recognizes that these rationales should be understood by the public and are now being explained to the general public by the FAA.

While one could argue that the process has been unduly methodical (safety is not a discipline given to expedited decisions), the record is quite clear. One, the FAA has been given the statutory basis to regulate UAS operations. Two, the proposed regulations are all tied to sound safety/risk analyses. That may not be what the UAS proponents want, but it is hard to characterize as not common sense.

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