As discussed in the prior post, the
ramifications of the proposed $1.9 million civil penalty against SkyPan
International, Inc. by the Federal Aviation Administration are
significant.
As the wave of UAS activity in the
United States mounts and will increase substantially in the future (the FAA
estimates one million drones will be sold during the upcoming Christmas
holidays in 2015 alone), the FAA has implemented a tripartite strategy to
stay ahead of the rash of unsafe and unauthorized activities which will
inevitably follow in the future.
The first leg of the strategy is
education, which involves several public outreach programs involving the
FAA. One example is the “Know Before You Fly” educational campaign, which
provides prospective UAS operators with information and guidance they need to
fly safely and responsibly online at http://knowbeforeyoufly.org. Another is
B4UFLY. B4UFLY is a smartphone app that the FAA says users will be able
to access before they operate their unmanned aircraft to determine
whether there are any restrictions or requirements in effect at the
location where they want to fly. On August 28, 2015, the FAA indicated that it
released B4UFLY to approximately 1,000 beta testers, including members of
industry, government, and the public.
According to the FAA, this limited
beta test is expected to run for several months, after which the FAA plans to
make a final version of B4UFLY available for the general public. The beta
version of the app is for iOS devices only, but the FAA intends to release a future
version for both iOS and Android devices.
The FAA indicates that key features
of the B4UFLY app include:
- A clear "status" indicator that immediately
informs the operator about their current or planned location. For example,
it shows flying in the Special Flight Rules Area around Washington, DC is
prohibited
- Information on the parameters that drive the status
indicator
- A "Planner Mode" for future flights in
different locations
- Informative, interactive maps with filtering options
- Links to other FAA UAS resources and regulatory
information
The second leg of the FAA strategy
to limit the amount of unsafe UAS incidents involves an enforcement partnership
with local law enforcement authorities. On January 8, 2015, the FAA released a
document entitled Law Enforcement Guidance For Suspected Unauthorized UAS
Operations, here. The document discusses, inter alia,
the law enforcement community’s vital role in deterring, detecting and
investigating unsafe operations:
State and local police are often in the best position to
immediately investigate unauthorized UAS operations, and as appropriate, to
stop them. The document explains how first responders and others can provide
invaluable assistance to the FAA by:
·
Identifying potential witnesses and
conducting initial interviews
·
Contacting the suspected operators
of the UAS or model aircraft
·
Viewing and recording the location
of the event
·
Collecting evidence
·
Identifying if the UAS operation was
in a sensitive location, event or activity
·
Notifying one of the FAA’s Regional
Operation Centers about the operation
as soon as possible
The need for this partnership is
obvious. The FAA would require an army of enforcement employees to
control the flood of new UAS activity that will assuredly commence in the not
too distant future. Relying on the assistance of local law enforcement
officials makes sense both from a practical and budgetary perspective.
The FAA’s budget for the personnel
responsible for regulating the UAS miscreants is illustrative of the enormous
practical difficulties facing the agency, In 2009, the budget for the
Office of General Counsel was approximately $43.5 million, and the office had
246 full-time employees. Those numbers grew to $47.6 million and 252 FTE
in 2012. By 2014, those numbers dipped to $44.19 million and 233 FTE, and
in 2015, $44.24 million and 236 FTE. The requested amounts in the FAA
budget for 2016 are $44.786 million and 236 FTE. These static budget
amounts are not nearly sufficient to support the regulatory and enforcement
efforts needed in the future to combat what is anticipated as the
onslaught of problems that will arise from UAS miscreants.
Third, there is new regulation and enforcement. As discussed
elsewhere in this blog, the FAA in February, 2015, proposed rules for the
commercial use of UAS in the United States. It is expected that the final
rules will be issued in the early to middle part of 2016. As stated on my
comments filed on behalf of NetMoby, Inc., in the Federal Aviation
Administration (FAA), Department of Transportation’s Notice of Proposed
Rulemaking in Docket No. FAA-2015-0150, Operation and Certification of Small
Unmanned Aircraft Systems, the FAA's Notice Of Proposed Rulemaking for small
UAS is an extraordinary moment for 21st-century technology. The first
generation of regulations for small UAS has the potential to revolutionize air
traffic not only across the United States of America but around the world. This
is particularly true given the anticipated increase in UAS use, and concomitant
rise in unsafe behavior, in the near future.
In addition, the Department of Transportation and Federal Aviation
Administration has opened Docket No. FAA–2015–4378
seeking comments from the public concerning clarification and a request
for information in Docket No. FAA–2015–4378 entitled “Clarification of Applicability of Aircraft Registration
Requirements for Unmanned Aircraft Systems and Request for Information
Regarding Electronic Registration.” See the text of the notice at 80 FR
63912 (October 22, 2015) or here. In
essence, the FAA seeks to require the registration of all UAS and is seeking
comments on the best method for allowing owners of UAS to register their
aircraft with the FAA. The FAA states
This
document requests information and recommendations regarding what information
and registration platform would be appropriate for UAS registration and ways to
minimize the burden to the regulated community. In addition, we request comment
on which UAS, based on their weight or performance capabilities, warrant a
continued exercise of discretion with respect to requiring registration because
of the negligible risk they pose to the national airspace system (NAS).
Registration will be an enormous undertaking, both to establish a
user-friendly and streamlined platform for the public to use and also to allow
the FAA to compile a database for access by the public. The reason for
the FAA’s admitted change in course on the proposed requirements of
registration for all UAS, including model aircraft, is of course safety. The
FAA states in the Clarification that:
During the past several months, we have received increasing reports of
unauthorized and unsafe use of small UAS. Pilot reports of UAS sightings in
2015 are double the rate of 2014. Pilots have reported seeing drones at
altitudes up to 10,000 feet, or as close as half-a-mile from the approach end
of a runway. In recent weeks, the presence of multiple UAS in the vicinity of
wild fires in the western part of the country prompted firefighters to ground
their aircraft on several occasions. These UAS operations are unsafe and
illegal. However, only a small percentage of these incidents have resulted in
enforcement actions against individuals for unsafe or unauthorized UAS
operation because identifying an individual or entity responsible for the
dangerous operation of UAS is very difficult.
Finally, the third tool is the FAA's
enforcement authority. The $1.9 million fine proposed against SkyPan
International, Inc., should serve as a tremendous deterrent to other
companies in the business community contemplating the unauthorized use of
drones should the enforcement action be brought to a conclusion with the
imposition of a fine in the neighborhood of the amount proposed. Whether
such a fine will serve as a deterrent to the recreational user community
remains to be seen.
