DRONE LAW THE DIFFERENT STRAINS OF IDEAS Weapon Target Military - - PowerPoint PPT Presentation

DRONE LAW

Weapon Target Military decoys Data gathering Recreation

THE DIFFERENT STRAINS OF IDEAS

WEAPON

MARCH 1849

NIKOLA TESLA

A remote controlled airplane that “could change its direction in flight, explode at will, and . . . never make a miss.”

ELMER SPERRY

LAWRENCE SPERRY (SON)

Hello there.

PETER COOPER HEWITT

GLENN CURTIS

THE CURTISS-SPERRY AERIAL TORPEDO

THE AERIAL TORPEDO IN WWII

THE NAZI V3 SUPER CANNON

TARGET

INTERWAR PERIOD (1919-1939)

• “Old school” battleship mentality
• vs. the new air war mentality.
• The battleship guys said, “Add

more guns!”

• “We also need targets for

practice.”

U.S.S. UTAH

U.S.S. UTAH AT PEARL HARBOR

REGINALD DENNY

1930’s Hollywood and RC airplanes

TARGETS FOR THE MILITARY

WHO IS THIS?

WHO IS THIS?

DECOYS

ADM-20 QUAIL

“[T]he Israeli Air Force employed pilotless aircraft as a first wave of an aerial attack against Arab forces. The UAVs fooled radar operators and defense systems. The ruse caused Arab defenses to expend their surface to air missiles (SAMs) . . . giving the second wave of manned aircraft a chance[.]”

THE YOM KIPPUR WAR (OCT. 6-25, 1973)

DATA GATHERING

BALLOONS

THADDEUS LOWE (JUNE 16TH, 1861)

GEORGE R. LAWRENCE (1869-1938) & KITE PHOTOGRAPHY SAN FRANCISCO EARTHQUAKE 1906

MQM-57 FALCONER (1955-1970’S)

• Flown by a pilot via a stick box and TV camera for about 30 minutes at around 185-

224 miles per hour

• Turn around, kill the engine, and deploy the parachute once over friendly territory.

RECREATION

CONTROL-LINE THEN RADIO

THE FAA’S AUTHORITY TO REGULATE AIRSPACE

THE CONSTITUTION & THE FEDERAL AVIATION ACT OF 1958.

• Article I, Section 8 gives

Congress the power to “regulate commerce with foreign nations, and among the several states.”

• Congress delegated to the

FAA the job to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use

• f the airspace necessary to

ensure the safety of aircraft and the efficient use of airspace.

• “‘[N]avigable airspace’ means airspace

above the minimum altitudes of flight prescribed by regulations.” 49 U.S.C. § 40102(32). 14 C.F.R 91.119 defines navigable airspace.

WHAT IS NAVIGABLE AIRSPACE?

14 C.F.R 91.119

Helicopters can go down to “An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.”

NAVIGABLE AIRSPACE FOR HELICOPTERS

HOW HIGH DOES MY AIRSPACE GO?

UNITED STATES V. CAUSBY

WW2 was going on. B-17 bombers will flying over (83ft.) the farmer’s chickens and they were being killed.

The Court held that people’s property ends at the highest of the underlying land’s trees, buildings, fences, “immediate reaches of the enveloping atmosphere[,]” or how high the owner can “occupy or use [the airspace] in connection with the land[.]”

• If the farmer owned the “immediate

reaches of the enveloping atmosphere[,]”

• r how high the owner can “occupy or

use [the airspace] in connection with the land[,]” the local governments also has the general police power to regulate this area.

IMPLICATION FROM THE CAUSBY CASE

HOW THE FAA REGULATES NAVIGABLE AIRSPACE

• Advisory Circulars
• Policy Statements
• Federal Aviation Regulations

WAYS OF REGULATING

• Advisory Circulars (“AC”) are just

that, advisory. AC’s are not binding, unless the AC is incorporated specifically by reference into a regulation.

ADVISORY CIRCULARS

• Issued in 1981
• Published to “encourage model

aircraft flyers to voluntarily” comply.

• Limitations are:

Not in the presence of spectators unless the airplane has been flight tested, 400 feet max height, not within 3 miles

• f an airport, not near noise-

sensitive areas, and not over populated areas.

• The FAA accidentally canceled it

back in August, 2014.

AC 91-57

• ARAC sub-committee tasked with developing

“operating and certification standards for unmanned aerospace vehicles [including] minimum qualifications or standards for the

• perators of these vehicles.”
• In 1996, the FAA was given advisory circulars

for unmanned aircraft maintenance, pilot training and qualification, aircraft design, and

• perations.

FOUR PROPOSED AC’S IN 1996

• By issuing a policy statement, an agency

simply lets the public know its current enforcement or adjudicatory approach.

• The agency can change its position
• Simply put, the policy statements will be

“explanatory rather than mandatory.”

POLICY STATEMENTS/ INTERPRETIVE RULES

• Congress passes a broadly worded statute.
• Broad language has open-ended phrases and/or

ambiguous standards.

THE PROBLEM WITH POLICY STATEMENTS

• Then as years pass, the agency

issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in the regulations.

• “Unmanned Aircraft Systems Operations in the U.S.

National Airspace System – Interim Operational Approval Guidance.” Published in September 2005.

• The FAA wouldn’t accept civil aircraft COA applications.

They have to get a SAC-EC.

• “UA that comply with the guidance in AC 91-57 are

considered model aircraft and are not evaluated by the UA criteria in this policy.”

• It is easier to operate under AC 91-57 than get a SAC-EC or

COA. HOW DID WE GET HERE?

• Published in February 2007 to fix the model aircraft

loophole.

• “AC 91-57 only applies to modelers, and thus

specifically excludes its use by persons or companies for business purposes.”

• The policy statement declares that “no person may
• perate a UAS in the National Airspace System

without specific authority[.]” The authority for civil aircraft would be a SAC-EC.

• Public aircraft must have a COA, civil aircraft a SAC-

EC, and modelers operate under AC 91-57

2007 POLICY STATEMENT- THE INDUSTRY KILLER

“Farmers may operate an unmanned aircraft over their

• wn property for personal use and should operate

safely so as to minimize risk to other aircraft or people

• r property on the ground. Guidelines for the operation
• f model aircraft, such as those published by the

Academy of Model Aeronautics, may be used by farmers as reference for safe model UAS operations.”

• Les Dorr from the FAA (Nov. 25, 2013)

THE OL’ SWITCHEROO

• The FAA fixed the loophole.
• A farmer CANNOT determine

“whether crops need to be watered that are grown as part of commercial farming operation.”

• “A realtor [CANNOT USE] a model

aircraft to photograph a property that he is trying to sell and using the photos in the property’s real estate listing.”

• Recreational flying means no incidental

benefits. 2014 MODEL AIRCRAFT INTERPRETATIVE RULE

CURRENT ENFORCEMENT

RAFAEL PIRKER

• FPV at the UV campus.
• Violating 91.13 for flying in a

“careless or reckless manner so as to endanger the life or property of another.”

• $10,000 fine!
• Not because it was commercial.
• The FAA really picked the low

hanging fruit and didn’t address all the other issues.

ZABLIDOWSKI CASE

• David Zablidowski , Bassist of the band Z02, flew his

Phantom in midtown Manhattan recreationally.

• The Phantom crashed

repeatedly into buildings until a propeller broke.

• The FAA cited him for

violating 91.13 and also for flying in Class B airspace without a clearance.

I’m here to rock you like a hurricane.

HOW DOES A DRONE GET PERMISSION TO FLY?

• Public Aircraft – Government
• Civil Aircraft – Model or Non-Model

THE DIFFERENT TYPES OF AIRCRAFT

• Public aircraft must be carrying out a government
• function. (national defense, firefighting, search and rescue,

law enforcement, etc.)

• The FAA does not regulate the certification of the public

aircraft or the certification of the pilots.

• FAA only regulates the operation of the public aircraft.
• A public aircraft cannot comply with all of the regulations

so it needs a Certificate of Authorization or Waiver (COA) from certain regulation such as Section 91.113’s “see and avoid” requirement.

PUBLIC AIRCRAFT

• The FAA regulates the certification of civil aircraft,

the certification of the pilots, and their aircraft’s

• peration.
• Non-model civil aircraft need a special airworthiness

certificate (Experiment and Restricted) Experimental – training and research purposes

• nly

Restricted – can be used commercially for agricultural spraying, dusting, seeding, forest and wildlife conservation, aerial surveying, patrolling,

• r other areas.

CIVIL AIRCRAFT

• Section 333 of the FAA Modernization and Reform Act of

2012.

SECTION 333

• It allows the FAA to determine

“whether a certificate of waiver, certificate of authorization, or airworthiness certification will be required.”

• Uses also Part 11 exemption

process.

• 48 granted.
• Still need a COA

• A farmer wanting to commercially operate must
• btain either a special airworthiness certificate in the

restricted category or obtain a section 333 exemption.

• The farmer must also obtain a COA.
• The aircraft must be operated by at a minimum a

private pilot and accompanied by a visual observer.

• COA and a 333 exemption are both good for 2 years.
• A COA is good for only a geographical location

while a 333 is good for the US.

SO WHAT DOES A FARMER HAVE TO DO?

Quiet Creek Corporation doing Precision Agriculture

• 400ft AGL max
• VLOS only
• Must have a visual observer
• Preflight inspection for airworthiness
• Private pilot license and 3rd class medical
• BFR
• No night flying
• FPV flying
• Cannot operate within 5 miles of an airport unless LOA.
• 500 below and 2000 horizontal of clouds.

333 RESTRICTIONS

• 3 SM of visibility.
• UA loses communications or loses its GPS signal it must

return to a predetermined location.

• Must complete mission with 30% battery as reserve.
• You must request a NOTAM between 72-48 hours before

the flight.

• Aircraft must be registered and marked as best as possible
• Cannot be operated by the PIC from any moving device
• r vehicle.
• Cannot be operated over congested or densely populated

areas

333 RESTRICTIONS CONTINUED

• Operations must be conducted at least 500ft away from non-

participating people, vessels, vehicles unless:

• a) Barriers or structures are present that sufficiently protect

nonparticipating persons from the UA and/or debris in the event of an accident.

• b) The aircraft is operated near vessels, vehicles, or structures

where the owner/controller of such vessels, vehicles, or structures has granted permission and the PIC has made a safety assessment of the risk of operating closer to those objects and determined that it does not present an undue hazard, and;

• c) Operations nearer to the PIC, VO, operator trainees or

essential persons do not present an undue hazard to those persons. 333 RESTRICTIONS CONTINUED

• All operations shall be conducted over private or

controlled-access property with permission from the property owner/controller or authorized representative.

• Any incident, accident, or flight operation that

transgresses the lateral or vertical boundaries of the

• perational area as defined by the applicable COA

must be reported to the FAA's UAS Integration Office (AFS-80) within 24 hours. Accidents must be reported to the National Transportation Safety Board (NTSB)

333 RESTRICTIONS CONTINUED

THE NPRM AND THE PRESIDENTIAL MEMO

• The Administrative Procedures Act,
• The Federal Register Act,
• The Federal Advisory Committee

Act,

• The Regulatory Flexibility Act,
• The Congressional Review Act, and

many more.

• We also have executive orders such

as EO 12,866 and EO 13,563.

• Office of Management and Budget

has A-4

• Department of Transportation has

Order 2100.5

THE LAWS APPLYING TO CREATING REGULATIONS

More Hoops than a Circus!

• 100 MPH max
• 500 feet AGL
• Class B, C, D, and E airspace with ATC permission.
• A UAS operator passes a knowledge test with some of

the similar areas as the private pilot knowledge test.

• Unmanned Aircraft certificate with a small UAS

rating.

• Aircraft do not need airworthiness certificates.
• Won’t be in place till at a minimum of 3 years from

now.

SUMMARY OF IMPORTANT PARTS OF THE NPRM

• “[T]he Office of Justice Programs (OJP) and

Office of Community Oriented Policing Services (COPS) have provided $1.2 million in funding to seven local law enforcement agencies and non-profit organizations to purchase UAS for testing or use.”

• New Presidential memo will now “require that

State, local, tribal, and territorial government recipients of Federal grant funding for the purchase or use of UAS for their own

• perations have in place policies and procedures

to safeguard individuals' privacy, civil rights, and civil liberties prior to expending such funds.”

PRESIDENTIAL MEMO PROBLEMS

THE END

Email me questions at jon@jrupprechtlaw.com