FAA Prevails in Challenge to Drone Regulatory Scheme

   

John Taylor, an attorney in the Washington D.C. area and a model aircraft enthusiast, has been actively challenging the Federal Aviation Administration ("FAA") rules regarding unmanned aircraft systems ("UAS"s, more popularly known as "drones") since the time the rules were enacted, with varying success..

 

In the FAA Modernization and Reform Act of 2012, Congress tasked the Secretary of Transportation with developing “a comprehensive plan to safely accelerate the integration of

civil unmanned aircraft systems into the national airspace system.” Pub. L. 112-95, § 332(a)(1), 126 Stat. 11, 73 (codified at 49 U.S.C. § 40101) (“FAA Modernization and Reform Act”).

 

In 2015, the FAA issued a rule requiring registration of all UAS including model aircraft.  See Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,59  (December 16, 2015)  (the “Registration Rule”).  The Registration Rule extended to

Unmanned aircraft weighing less than 55 pounds and more than 0.55 pounds (250 grams) on takeoff, including everything that is on board or otherwise attached to the aircraft and operated outdoors in the national airspace system.

The FAA determined that “Owners of small unmanned aircraft must register their aircraft

prior to operation of the sUAS.”  No exception was created for model aircraft.

Taylor challenged the Registration Rule in the U.S. Court of Appeals for the District of Columbia Circuit on this basis, i.e.,  Taylor argued that the FAA did not have  the statutory authority to issue the Registration Rule and require him to register his model aircraft due to this  language in the FAA Modernization and Reform Act of 2012.   The Court of Appeals agreed.  In a decision issued March 19, 2017, Taylor v. Huerta, 856 F.3d  1089,  1093   (D.C. Cir. 2017), the U.S. Court of Appeals vacated the Registration Rule to the extent it applied to model aircraft. 

 

However, Taylor’s victory was short-lived.  In December, 2017, Congress passed the  National

Defense Authorization Act for Fiscal Year 2018, Pub. L. No.115-91, § 1092(d), 131 Stat. 1283, 1611 (2017).  Section `1092 9d) of the bill provides:

(d) Restoration of Rules for Registration and Marking of Unmanned

Aircraft.--The rules adopted by the Administrator of the Federal

Aviation Administration in the matter of registration and marking

requirements for small unmanned aircraft (FAA-2015-7396; published on

December 16, 2015) that were vacated by the United States Court of

Appeals for the District of Columbia Circuit in Taylor v. Huerta (No.

15-1495; decided on May 19, 2017) shall be restored to effect on the

date of enactment of this Act.

Undeterred, Taylor was back at it again with a subsequent petition for review filed  in the U.S. Court of Appeals for the District of Columbia Circuit challenging the FAA’s entire regulatory scheme for drones. 

In 2016, pursuant to the instruction of the FAA Modernization and Reform Act, the FAA promulgated the rule establishing the regulatory scheme  for drones in  Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,064 (June 28,

2016) (hereinafter “Small UAS Rule”).

This rule finalized the notice of proposed rulemaking entitled Operation and Certification of Small Unmanned Aircraft Systems in Docket No. FAA-2015-0150, 80 Fed. Reg. 9,544 (February 23, 2015).  This rule added a new part 107 to Title 14 Code of Federal Regulations (14 CFR) to allow for routine civil operation of small UAS (i.e., drones) in the NAS and to provide safety rules for those operations. 

The Small UAS Rule also added part 101 pursuant to section 336 of the FAA Modernization and Reform Act, which authorized a statutory “Special Rule for Model Aircraft.”

It was Part 107 which Taylor challenged, primarily because, as was his objection in Taylor v. Huerta, Taylor contended that the  Part 107 rule contained provisions with respect to Part 336 of the Modernization Act’s safe harbor exception which exceeded  the  agency’s  statutory authority and were arbitrary and  capricious. The Court, in an opinion written by Chief Judge Merrick B. Garland , denied Taylor’s petition for review. See Taylor v. FAA, No. 16-1302 (D.C. Cir. 2018). 

The decision in Taylor v. FAA I singularly important because it upholds the FAA’s regulatory scheme for small UAS.  The agency and the drone industry can now move forward with confidence that the rules in place for integration of UAS  into the national airspace system have withstood a serious legal challenge.

The FAA Addresses Remote Tracking of UAS

The Federal Aviation Administration (FAA) recently announced that Unmanned Aircraft Systems (UAS) Identification and Tracking Aviation Rulemaking Committee (ARC) chartered by the FAA has submitted its report and recommendations to the agency on technologies available to identify and track drones in flight and other associated issues.  The FAA charged the UAS-ID ARC with the following three objectives:

1. Identify, categorize and recommend available and emerging technology for the remote identification and tracking of UAS.

2. Identify the requirements for meeting the security and public safety needs of the law enforcement, homeland defense, and national security communities for the remote identification and tracking of UAS. The ARC should consider and evaluate the need to provide information that could assist in threat discrimination and determination of hostile intent.

3. Evaluate the feasibility and affordability of available technical solutions, and determine how well those technologies address the needs of the law enforcement and air traffic control communities. 

The FAA stated in its announcement that  the ARC’s recommendations and suggestions, which are fully detailed in the report, cover issues related to existing and emerging technologies, law enforcement and security, and implementation of remote identification and tracking. Although some recommendations were not unanimous, the group reached general agreement on most. Highlights of the recommendations include:

• The FAA should consider two methods for remote ID and tracking of drones: direct broadcast (transmitting data in one direction only with no specific destination or recipient) and (2) network publishing (transmitting data to an internet service or group of services). Both methods would send the data to an FAA-approved internet-based database.
• The data collected must include a unique identifier for unmanned aircraft, tracking information, and drone owner and remote pilot identification.
• The FAA should promote fast-tracked development of industry standards while a final remote ID and tracking rule is developed, potentially offering incentives for early adoption and relying on educational initiatives to pave the way to the implementation of the rule.
• The FAA should implement a rule in three stages, with an ultimate goal that all drones manufactured or sold within the United States that comply with the rule must be so labeled. The agency should allow a reasonable grace period to retrofit drones manufactured or sold before the final rule is effective.
• The FAA should coordinate any ID and tracking system with the existing air traffic control system and ensure it does not substantially increase workloads.
• The FAA should exempt drones operating under air traffic control or those operating under the agency’s discretion (public aircraft operations, security or defense operations, or with a waiver).
• The FAA must review privacy considerations, in consultation with privacy experts and other Federal agencies, including developing a secure system that allows for segmented access to the ID and tracking information. Within the system, only persons authorized by the FAA (e.g., law enforcement officials, airspace management officials, etc.) would be able to access personally identifiable information.

The FAA pointed out that, while the ARC reached consensus on most issues, there were dissenting opinions, primarily over to which drones the ID and tracking requirements should apply. Many of these dissenting opinions expressed concerns that exempting model aircraft operating under Section 336 of the FAA Modernization and Reform Act of 2012 would undermine the value of an ID and tracking requirement. Other dissenting opinions touched upon issues such as privacy and a lack of detail or consideration for ATC involvement.

The FAA indicated that will use the data and recommendations in the ARC report in crafting a proposed rule for public comment.  There was no indication when that proposed rulemaking would be issued.

The 50-page report with four appendices totaling 158 pages will be discussed in further detail in the next post.

Copyright Robert E Kelly, Esq.2016-2018

Drone Flights Banned Near National Monuments

The Federal Aviation Administration (“FAA”) announced on September 28, 2017,  that at the request of U.S. national security and law enforcement agencies, it  is using its existing authority under Title 14 of the Code of Federal Regulations (14 CFR) §99.7, entitled  “Special Security Instructions” – to address concerns about unauthorized drone operations over ten (10)  U.S. Department of the Interior (“DOI”) sites, including the Statue of Liberty, Mount Rushmore and four (4) U.S. dams.

The FAA and DOI have agreed to restrict drone flights up to 400 feet within the lateral boundaries of the following sites:

• Statue of Liberty National Monument, New York, NY
• Boston National Historical Park (U.S.S. Constitution), Boston, MA
• Independence National Historical Park, Philadelphia, PA
• Folsom Dam; Folsom, CA
• Glen Canyon Dam; Lake Powell, AZ
• Grand Coulee Dam; Grand Coulee, WA
• Hoover Dam; Boulder City, NV
• Jefferson National Expansion Memorial; St. Louis, MO
• Mount Rushmore National Memorial; Keystone, SD
• Shasta Dam; Shasta Lake, CA

The restrictions became effective on October 5, 2017. There are only a few exceptions that permit drone flights within these restrictions, and they must be coordinated with the individual facility and/or the FAA.

Operators who violate the airspace restrictions may be subject to enforcement action, including potential civil penalties and criminal charges.

This is the first time the agency has placed airspace restrictions for unmanned aircraft, or “drones,” over DOI landmarks. The FAA has placed similar airspace restrictions over military bases that currently remain in place.  See http://uas-faa.opendata.arcgis.com/

The FAA is considering additional requests from other federal agencies for restrictions using the FAA’s § 99.7 authority as they are received.

All of the above sites are managed by the National Park Service directly or, in the case of the four dams, managed by the U.S. Bureau of Reclamation, whose parent agency is the U.S. Department of the Interior.

Comments Needed in FCC AeroMACS Proceeding

The Federal Communications Commission in Washington, D.C., has issued a Public Notice seeking comment on a petition filed by the WiMAX Forum proposing service rules for the Aeronautical Mobile Airport Communications System (AeroMACS). This WiMAX Forum Petition for Rulemaking to Adopt AeroMACS Service Rules was filed with the FCC on March 31, 2017.  See the text here   AeroMACS refers to a collection of high data rate wireless networks that are used in accordance with international aeronautical standards for airport surface operations to provide broadband communications between aircraft and other vehicles, as well as between critical fixed assets.  

  

The FCC notes that AeroMACS is designed to support a wide variety of services and applications, including Air Traffic Control/Air Traffic Management and infrastructure functions, as well as airline and airport operations.  For example, the FCC opines that AeroMACS frequencies might be used by pilots to receive weather and airfield information; by fire rescue, snow removal, and ground personnel to coordinate operations; and by airport security personnel to monitor live video feeds. The FCC has previously allocated frequencies for AeroMACS , which will operate in the 5000-5030 MHz and 5091-5150 MHz bands, and will be utilized by Federal and non-Federal users.  See Amendment of Parts 2, 15, 80, 90, 97, and 101 of the Commission’s Rules Regarding Implementation of the Final Acts of the World Radiocommunication Conference (Geneva, 2012)(WRC-12), Other Allocation Issues, and Related Rule Updates, Report and Order, 32 FCC Rcd 2703, 2717-18, paras. 39-40 (2017); 47 CFR § 2.106, Footnotes US115, US444B.

Proposed uses for Federal users (i.e., government entities, like the FAA) include air traffic management, including air traffic control; aeronautical operations communications; and communications related to airport operations, safety, and security.  Non-Federal users may include airport owners and operators, airline carriers, aeronautical communications network providers (ACNPs), and other entities that engage in airport communications relating to safety and regularity of flight.  

The FCC has taken  actions in support of aeronautical mobile (route) service (AM(R)S) surface applications at airports in the 5000-5030 MHz band and unmanned aircraft systems (UAS) in the 5030-5091 MHz band.   The aeronautical mobile (route) service is an aeronautical mobile service (i.e. a mobile service that supports communications between aeronautical stations and aircraft stations, or between aircraft stations) and is reserved for communications relating to the safety and regularity of flight.  See 47 CFR § 2.1.

The reason these allocations are important for sUAS is that the FCC has allocated the 5030-5091 MHz band to the AM(R)S on a primary basis for Federal and non-Federal use, while noting that the 5030-5091 MHz band would be appropriate to satisfy the terrestrial, line-of-sight, spectrum requirements for command and control of UAS in non‑segregated airspace. See U.S. Proposals for WRC-12, First Tranche, Agenda Item 1.3 (“given that there is minimum use in this band worldwide and because the lack of an existing or planned microwave landing system deployment in the United States at 5030-5091 MHz ensures availability of appropriate aeronautical spectrum for terrestrial line-of-sight UAS in the band”)( The U.S. Proposals for the WRC-12 consisted of three letters from the Commission and NTIA to the U.S. Department of State:  First Tranche (February 17, 2011); Second Tranche (RCS-2394/1, June 21, 2011); and Third Tranche (September 19, 2011) (together, U.S. Proposals for WRC-12, available at http://transition.fcc.gov/ib/wrc-12/us/).  

The Small UAV Coalition generally supported this allocation, noting that the allocation of this band should be flexible to accommodate future uses of the band by low‑altitude small UAS and uses beyond line-of-sight.  Boeing also supported this allocation, Boeing also supported the AM(R)S allocation, noting the expected substantial growth of UAS in the coming years, including flight operations outside of segregated airspace. Boeing also noted that the 5030-5091 MHz band was well suited for line-of-sight control links because it remains relatively unused.

So, while the allocations are established, the service rules for use of the spectrum at and around airports is not, and these rules are the subject of this Notice of Proposed Rulemaking.  Those readers with an interest in helping to shape the rules for the deployment of the AeroMACS frequencies for uses which will affect small UAS, particularly for uses beyond line-of-sight, are urged to file comments. 

Electronic Filers:  Comments may be filed electronically using the Internet by accessing the ECFS:  http://fjallfoss.fcc.gov/ecfs2/.  The File No. of this proceeding is RM-11793.  The Comment Date is August 18, 2017, and the Reply Date:  September 5, 2017.