Who Owns the Sky, Part III: Not You

“The FAA is where innovation goes to die.”

These were the words of Forbes contributor Greg McNeal at November’s UAS Commercialization Conference in Washington D.C. He was referring to the swift one-two punch dealt by the FAA on November 18, when the National Transportation Safety Board published an opinion and order remanding the case of Raphael Pirker and tasking the judge to collect new evidence to determine whether or not Pirker was operating his drone recklessly.

On top of this, mere hours before Mr. McNeal addressed the conference, the FAA’s head of the UAS Integration Office, Jim Williams, told the very same crowd, “If you are flying in the national airspace system, FAA regulations apply to you.  The definition of the national airspace system is anywhere where aircraft can safely navigate. So, by definition then, these quadcopters are what have extended the national airspace down to the ground.”

Dronelife has asked the question “Who Owns the Sky?” before, but now the FAA believes it has a pretty clear answer: they do.

Then, just before Thanksgiving, the FAA sent the UAS an early Christmas present: sources close to the FAA’s rulemaking process told the Wall Street Journal the proposed rules (scheduled to appear in draft form by the end of the year) will require drone pilots to have a license for flying.

“There’s a colossal mess coming,” Small UAS Coalition Executive Director Michael Dobrac told The Journal.

And You Thought Thanksgiving Traffic Was Bad

How did we get into this mess?

The legal answer is last year, Congress mandated the FAA to publish a Notice for Proposed Rule Making by the end of this year so we can get the ball rolling on integrating drones in the national airspace.

The more accurate answer that seems to play a major part in most technological developments these days is fear.

In his address, Mr. McNeal pointed out the FAA is starting from a position that drones are ‘bad’ or ‘dangerous.’

Sure, drones can be dangerous. So can knives. But knives are used thousands of times a day in kitchens, on construction sites, on farms, in mail rooms or simply just for fun. They are integral tools in our everyday lives. We only ever hear about them on national news when some loon channels his inner Michael Myers.

The vocal minority stuck drones with a negative stigma before we got to see this transformative technology take flight and as long as this association continues, American adoption of UAV technology will remained crippled.

“We need to force the government from this precautionary attitude into innovation as a mindset,” McNeal said.

To see drones only as dangerous is, at best, naive. At worst, it’s a tremendous missed opportunity for American economic growth (100,000 jobs and about $82 billion… in the first ten years after integration.)

So, what can be done?

If This, Then That

For starters, McNeal suggested drone manufacturers should self-regulate.

Community-based efforts to do just that pop up all the time.

But McNeal was suggesting an inescapable, hardwired solution that can be implemented by manufacturers. After all, drones are controlled by computers and the wonderful thing about computers is they can be told what to do.

The FAA doesn’t want drone flying above 400 feet? Build a sensor to detect altitude and limit the drone’s ceiling: if the ground is 399 feet below, then stop ascending. (Kudos to Parrot for including this in their new Bebop).

The FAA doesn’t want it flying near an airport? Give the airport a GPS coordinate and tell the drone, “If you come within 4.9 miles of this point, then stop and turn around.” (Again, props to DJI for integrating this feature into their drones).

The advantage drone technology brings to the world is autonomy. You tell it to “go here and collect this data,” and it’s done. And if a manufacturer can tell a drone what to do, it can also tell the drone what not to do. “Go to this house at these GPS coordinates and take a picture. Don’t take pictures in through the window. Don’t take pictures of the neighbor sunbathing in her birthday suit. Delete any pictures that aren’t of the house at these coordinates.”

This is a very real and rather simple function a drone could perform. But, like all new technology, it must be tested before it hits the market. And, as it stands, the FAA is barring anyone from conducting these tests without a COA (the request for which takes the FAA a minimum of 60 days to process- if you are somehow connected to one of the six FAA approved test sites) or a Section 333 exemption from Congress (which has been granted a total of three times- to BP, ConocoPhillips, and the MPAA).

This is why companies like Amazon and Google, who are serious about commercial drones, are outsourcing their tests to the UK and Australia, respectively.

Help From the Hill

UAV hardware developments will charge forward with or without U.S. participation. As we watch that happen, we wait for the domestic issues to be solved in the most American way possible: through the courts.

The FAA claims it controls the space your dog stands in when it poops, but it is unclear whether such a claim would hold up in front of a judge.

“It’s an open question as to whether the FAA can claim the authority to control airspace a centimeter above a person’s lawn,” McNeal told Dronelife. “I believe that if they tried to enforce regulations against a property owner, there might be a takings issue, but the law is clearly unsettled. Property rights have traditionally been a matter of state law, and there are state constitutional provisions addressing property rights.  If the FAA continues down this path, we will likely see a lawsuit challenging their authority.”

While we wait for someone with deep pockets to get fed up and slap the FAA with a lawsuit, our only other hope is that someone on Capitol Hill puts his/her foot down and tells the administration it has to change their restrictive policy.

Sen. Ron Wyden (D-Ore.) recently wrote a letter to FAA administrator Michael Huerta demanding he speed up the rule-making process and leave the skies open.

“In light of recent reports, I am concerned that proposed regulations on small, commercial unmanned aircraft will be costly, needlessly restrictive and hinder research and development for the growing [unmanned aerial systems] industry,” Wyden said in a statement. “The FAA needs to act quickly to alleviate these concerns.”

Sen. Charles Schumer (D-N.Y.) has also made similar demands.

And they are probably right. The “Caution over Innovation” Mindset of the FAA means the NPRM isn’t going to integrate UAS into the national airspace- it is going to make flying so restrictive, it won’t be worth it.

Whether it happens on The Hill or in the courts, what is needed is action. Demands are just words, words are wind and it’s going to take more than wind to get drones off the ground.

Updated 12/4/14: Senator Dianne Feinstein joined the fray on December 3. In a letter to Huerta, Senator Feinstein urged the FAA to get its act together and announced her intention to introduce a bill that would “codify and expand the moratorium on private drone use without specific authority from the FAA that is already in place,” and “require a safety certification for expansions of private drone use,” enforced by “substantial criminal penalties.”

For more check out Who Owns the Sky Part I: The FAA’s Drone Integration Plan and Part II: The FAA’s Drone Integration Plan, Reloaded.