Henry H. Perritt, Jr., a Professor of Law and former dean of Chicago-Kent College of law, has written an analysis of the FAA’s ability to regulate the burgeoning business of these high tech aircraft. His primary conclusion can be summed up by the above phrase, “catch me if you can.” While some of his other points are not as cogent, the below statements are correct:
“Once a culture of noncompliance develops, it is awfully hard to bring the outlaws into alignment with the law.”
“The FAA will never have enough resources to detect and punish widespread noncompliance with its rules. In traditional aviation, it depends largely on a deeply embedded culture of compliance rooted in pilot training. That culture does not yet exist in the drone community.”
The FAA safety regulation has depended on the voluntary compliance of all operators. This structural element of the agency’s enforcement recognizes that there are not enough investigators to observe every regulated action (i.e. the airworthiness of an aircraft, the pilot’s following the ATC instructions). Consequently, relying on the certificate holders to comply is essential, as the professor concludes.
This safety regime does not exclusively rely on the integrity of the certificate holders; there are seines (N numbers, pilot licenses, flight plans, ATC interactions, etc.) which capture the path of the operators. The UAS vehicle, by its design, number, departure/arrival capability, flight outside of ATC controls, separation of aircraft and pilot, size and other factors, avoids the FAA’s traditional mechanisms to surveil.
The FAA recognizes the limitation of its ability to regulate the fleet of drones and has asked, somewhat desperately, for help from local law enforcement in tracking the proliferation of aircraft. There is reason to doubt whether the control of unlawful UAV flights will rank high in any beat cop’s agenda. Their traditional targets of their enforcement have greater impact on the safety of their communities. Even if they had the time, it is hard to conceive that the average officer can determine whether a drone is too near and airport, above 500’ or operating over a populated area.
The street talk in the UAS industry is that the number of violators far exceeds those complying with the FAA rules. Many holders of Section 333 exemptions face competition for their business with rejections from the “buyers” of a UAS service and lose to unauthorized “operators” and even worse, companies using their UAS vehicles contrary to their OEM limitations. Currently, there are drones flying in contravention of the FAA’s definition of “for profit or hire” and many operating them in unsafe manners. The wild, wild west is a reality in the UAS sector.
So with that partial inventory of problems, what are possible solutions?
- Perritt correctly forecasts that this condition will be difficult if not impossible to roll back. He also intimates that the FAA might be well served to roll back its restrictions to minimize the lawless behavior. As to the FAA’s “commercial” ruling, which is an economic definition between regulated and unregulated activity, the FAA’s NPRM (Part 107) asked specifically for comments on this rule. Reduction of the scope of these rules may create a more manageable surveillance horizon.
- Resources needed to regulate the UAS business are not likely to come from the General Revenue of the US Treasury. The proposal for the future of the Air Traffic Control System includes imposing a user fee on operators. The rationale is that the airlines and the GA operators should pay for the proportional costs of their flights. While writing the 2015 Reauthorization Bill, might Congress not impose registration fees on all commercial and hobbyist operators? The dollars collected could be used to increase the staff dedicated to safety regulation of these flights!
- The public’s attitude towards the “why’s and how’s” of the FAA’s regulatory regime is ignorant at best and incredulous at worst. The blatant disregard of the rules appears to be rampant. The consequences to intentional or even unintentional violations are not understood. Eventually all operators seeking to fly their UAS commercially will have to get some sort of permission from the FAA. If the FAA has information that an applicant for Part 107 authority (and its progeny) has violated the FAA’s safety rules, the agency can deny that discretionary request on such a basis. That deterrent, permanent disbarment from ANY involvement in the UAS business, might cause some of those presently inclined to ignore the FAA strictures to comply.
- Education is one powerful way in which to create more compliant disposition among the commercial UAS operator community. The AUVSI and FAA joint initiative, B4UFLY, is an example of an initiative which seeks to improve the compliance with the rules.
- Sadly, the AUVSI public website has no dedicated link to words like safety and/or compliance (06.22.2015 @ 3pm EDT). That would be a great function for that trade association to publicize.
- The FAA’s own website has some practical advice for model airplane fliers, a detailed, opaque listing of regulations, ACs, policies and interpretations for UAS in general, and a graphic review of the Know B4UFLY program.
→ There is a dearth of simple, practical advice and that is disappointing!
- The most likely “positive response” to Prof. Perritt will come from the private sector. The wild, wild west atmosphere, presently alleged to be extant in the real world, will create an undifferentiated risk pool. That economic profile will be reviewed by the insurance carriers and will likely result in the setting of UAS insurance premiums at a VERY HIGH level. Some program which differentiates between the safety complaint and the risky cases will be established to create a defined pool for which more reasonable premiums will be charged.
These are but a few thoughts of how to encourage all users to adopt the safety requirements set by the FAA. The history of safety regulation, particularly aviation, has been marked by bad accidents which resulted in very negative public opinion; in almost every case, Congress and/or the FAA reacted by increasing the relevant safety margins. Irresponsible UAS flying could cause such a response, potentially damaging to the UAS business.