Commentary
Last week the Washington Post reported on the most recent meeting of the FAA’s Drone Advisory Committee with the headline, Federal drone advisory panel knocked for ‘lack of transparency and poor management’. A slightly more informative headline would have been “Mayor Lee of San Francisco knocks panel he is a member of for ‘lack of transparency'”.
When a national news organization with the gravitas of the Washington Post runs a headline like that it carries weight. The average reader skimming the headline would assume that this committee is not conducting itself properly. But in fact, there is one disgruntled member who feels that way. It is unclear from the article if that point of view is shared.
The article focuses on a letter Mayor Lee sent to the committee. You can find the text of his letter here. Mayor Lee is not happy with the Drone Advisory Committees Task Group 1, which is charged with exploring and making recommendations “roles and responsibilities of federal, state, local, and tribal governments, assuming that authority to impose reasonable time, place and manner restrictions upon UAS operations is provided to an authority other than the Federal Aviation Administration, and access to airspace).” The quote comes from the presentation given by Task Group 1 to the committee last week. The italicized text (emphasis mine) highlights the crux of the issue which the article fails to identify.
The issue in a nutshell is that on one side are local government officials that want to maintain control and influence over the impacts that businesses (in this case Unmanned Aerial Systems) have on the citizens that elected them and on the other, you have an industry that is looking for a set of uniform, consistent regulations that govern flight of drones nationwide. This is not a new issue and the FAA has stated in the past that it owns airspace and has that jurisdiction. If cities and states establish unique and one off policies and regulations that will be a major headache for the industry so it is not surprising that the task group which has individual coming from opposite points of view has not reached unanimous consensus. It s a tough problem. That does not mean progress has not been made.
As reported in the Post article “The lack of consensus with Task Group 1 was neither unexpected nor a fatal flaw. Congress itself couldn’t reach agreement on many of the questions we asked of you,” FAA Deputy Administrator Dan Elwell said.
An earlier article in the Post also reported that “Months of tensions came to a head recently when an FAA contractor that manages the group (Task Group 1) told members they had to sign a far-reaching confidentiality agreement to keep participating.” The article does not identify who that was nor who the source is that is claiming “months of tensions”. How stupid is that? When government initiatives close their doors to the press and public they open themselves up to having motivations and agendas questioned.
In summary, this is a bit of bureaucratic kerfuffle that is neither unique or alarming. It is slow difficult work that is attempting to move the industry forward. Some forbearance is in order. Ultimately, it is the responsibility of the FAA to manage and direct the process and any hiccups (e.g. transparency) lie squarely with them. The rapid response to assign blame, etc. is just much hyperventilating. That Mayor Lee is going to lobby for his interests and that industry members are going to lobby for theirs is to be understood. They’ll get to a reasonable place eventually.
Below you will find the 9 common principles established by this Task Group (You can find the full DAC presentation given on 11/8 here). They are color coded indicating which were unanimously accepted and which were not. As Brendan Schulman, co-chair of Task Group1 and VIce-President of Legal Affiairs at DJI stated on Twitter:
[quote]
The main question: in this less-than-ideal world for you, what would you need to provide comfort and assurance that innovation would flourish, the airspace would remain safe, regulations would actually be reasonable, and legitimate local interests would be served?
Not all principles reached full consensus. Ones that did are green. Yellow reflects a majority opinion. For some participants, having all the principles implemented together was important to reaching comfort on a new framework for UAS regulation.
[/quote]
Those principles are followed by the notes from the state officials giving more detail on why they did not support certain principles.
Common Principles
(1) Public Process to support reasonable outcomes for Local UAS Ordinances/Laws
In order to implement state, local, or tribal time/place/manner ordinances/laws, there must be a public process to support reasonable outcomes. This could include common practices such as advanced hearings and public notices that enable stakeholder input. This process could also benefit from voluntary reporting of these notices to a centralized repository.
(2) UAS Operations Impact on Private Property and Interests
Option 1: If there is a “line,” the property/trespass/exclusionary rights aspect should be at a relatively low (or close-in) limit which could be a lower altitude (or closer distance) than a line used for community time/place/manner restrictions. If this “line” is relatively high, the property/trespass/exclusionary framework should be less absolute and more liberal, and include features like exceptions for transient operations, a requirement to show substantial interference (such as in the existing aerial trespass doctrine), rebuttable presumptions, and other protections for beneficial applications that do not generally cause actual harm or nuisance.
Option 2: The 5th Amendment to the Constitution furthered the right to private property by guaranteeing that “No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Supreme Court interpreted the 5th amendment in the aviation context to convey to a property owner the right to enjoy his or her property within the “immediate reaches above the land” (United States v. Causby, 328 U.S. 256 (1946)). Further, the FAA has concluded in the context of UAS that “Laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation. Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002).” (FAA Fact Sheet, December 2015). Developing a “line in the sky” to define the “immediate reaches above the land” where private property owners hold a property right may assist to provide clarity to property owners and allow UAS operators to efficiently operate in national airspace.
(3) Common Ground Not Applicable to Manned Aviation
None of this applies to manned aircraft operations.
(4) Take off and Landing
Option 1: Takeoff and landing should be subject to the same framework of reasonable time/place/manner restrictions and the process-based protections above. This requires state and local government to make adjustments to existing zoning authority. Reasonableness would take into account UAS that take off and land at fixed sites such as airports or heliports. There should be greater latitude to operations that take off or land from the UAS operator’s private property.
Option 2: State and local governments are the exclusive regulators of land use and zoning. These state and local police powers allow state and local governments to reasonably regulate UAS takeoff and landing within their jurisdiction without limitation.
(5) Initial UAS State and Local Model Policy or Guidance
Model drone policy or guidance for reasonable time/place/manner (RTPM) restrictions should be created by informed, diverse stakeholders to inform policymaking in a process that is collaborative, appropriate, reasonable, and based on knowledge of the benefits and challenges presented by this technology. However, as every jurisdiction faces different constraints and opportunities, no one model policy will likely serve every community. Development of model drone policy or guidance should come in advance of a new RTPM framework, but it should not unreasonably delay implementation of a new RTPM framework, and therefore must be subject to a reasonable near- term schedule.
(6) Altitude Estimation Challenges
Option 1: The difficulty in judging altitude from the ground raises concerns about enforcement, if there is a “line.” There is a compelling interest in development of precise altitude measurement technologies. Also important if there is no “line.”
Option 2: In order to facilitate federal, state, tribal, and local regulation and law enforcement of UAS, the FAA should encourage the development of technologies that allow for precise altitude measurement.
(7) FAA’s Role in Aircraft Certification
Option 1: In an aviation operational context, FAA is the exclusive regulator of [matters such as]: aircraft design, testing, airman certification, aircraft cert, operator cert, equipage, technology standards, economic regulation, security regulation (other than operational restrictions that are contemplated in a new framework).
Option 2: The FAA is the exclusive regulator of aircraft certification, aircraft licensing, and maintenance of unmanned aircraft systems. State and local governments, through their police powers, are the exclusive regulators of land use, zoning, privacy and trespass. Federal, state, tribal and local governments all have a role in oversight of UAS safety and operations.
(8) Unjust or Unreasonable Discrimination
The grant/acknowledgement of authority that enables state and local regulation should not unjustly or unreasonably discriminate as to the UAS type, model, owner operator, manufacturer, or purpose of the operation. Likewise, the state and local restrictions should not unjustly or unreasonably discriminate as to the UAS type, model, owner, operator, manufacturer, or purpose of the operation. Justifiable differentiation may be necessary to achieve public interest goals.
(9) Generally applicable state criminal law and state tort law
In most respects, generally applicable state criminal law and state tort law should not be disturbed. However, to the extent that such generally applicable laws create a carve-out for otherwise unlawful behavior when such behavior is conducted using UAS, such laws will need to be updated.
Below are the joint positions of the state and local members of TG1 for the four common ground principles that TG1 was not able to reach consensus on.
2 UAS Operations Impact on Private Property Interests
The 5th Amendment to the Constitution furthered the right to private property by guaranteeing that “No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Supreme Court interpreted the 5th amendment in the aviation context to convey to a property owner the right to enjoy his or her property within the “immediate reaches above the land” (United States v. Causby, 328 U.S. 256 (1946)). Further, the FAA has concluded in the context of UAS that “Laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation. Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002).” (FAA Fact Sheet, December
2015). Developing a “line in the sky” to define the “immediate reaches above the land” where private property owners hold a property right may assist to provide clarity to property owners and allow UAS operators to efficiently operate in national airspace.
4 Take off and Landing
State and local governments are the exclusive regulators of land use and zoning. These state and local police powers allow state and local governments to reasonably regulate UAS takeoff and landing within their jurisdiction without limitation.
6 Altitude Estimation Challenges
In order to facilitate federal, state, tribal, and local regulation and law enforcement of UAS, the FAA should encourage the development of technologies that allow for precise altitude measurement.
7 FAA’s Role in Aircraft Certification
The FAA is the exclusive regulator of aircraft certification, aircraft licensing, and maintenance of unmanned aircraft systems. State and local governments, through their police powers, are the exclusive regulators of land use, zoning, privacy and trespass. Federal, state, tribal and local governments all have a role in oversight of UAS safety and operations.
Frank Schroth is editor in chief of DroneLife, the authoritative source for news and analysis on the drone industry: it’s people, products, trends, and events.
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