NetMoby, Inc., Files A Petition For Reconsideration of New Part 107 sUAS Rules

NetMoby, Inc., through its counsel, Robert E. Kelly, Esq., on August 23, 2016, has submitted to the Federal Aviation Administration (“FAA”) a  Petition For Reconsideration pursuant to 5 U.S.C. § 553  in reply to the Federal Aviation Administration, Department of Transportation’s Final Rule in Operation and Certification of Small Unmanned Aircraft Systems, 81 FR 42063 (June 28, 2016),   Docket No. FAA-2015-0150 (FAA Final Rule”).  NetMoby filed comments in response to the Notice of Proposed Rulemaking (“NPRM”) in Docket No. FAA-2015-0150 on April 24, 2015, and thus had standing to file its  Petition for Reconsideration.   NetMoby asked  for reconsideration specifically of the provision of the FAA Final Rule  which prohibits  the use of small UAS (“sUAS”) from transportation of property for compensation or hire between locations within the District of Columbia.  The FAA’s adoption of this regulation for sUAS  will most likely bar the use of sUAS from transportation of property for compensation or hire between locations within the District of Columbia permanently, while the rest of the United States (and the world) develops an industry that will rival the current standard aviation industry.   As a company incorporated in the District of Columbia, which has previously been awarded a waiver  pursuant to Section 333 of the FAA Modernization and Reform Act of 2012, Public Law 112-95 (P.L. 112-95), in  Exemption No. 16314, Regulatory Docket No. FAA–2015–7428,  NetMoby will be directly and adversely affected by the adoption of this provision of the Final Rule. 

The exclusion of the District of Columbia in the new rules from transportation of property for compensation or hire between locations within the District of Columbia is arbitrary and capricious.  It is based on the initial rules governing commercial aviation, which were first promulgated in 1958, at the dawn of the modern aviation industry and well before the invention of sUAS.  It is an anachronism carried over from the regulatory stage when the rules governing air transport were revised in 1994, still decades before sUAS were contemplated as being integrated into the National Airspace System (NAS).  

            NetMoby believes the FAA’s imposition of this prohibition on transportation of property for compensation or hire between locations within the District of Columbia i is an arbitrary and capricious decision resulting from an entire absence of reasoned decisionmaking and must be reversed.  The citizens of the District of Columbia must be allowed to participate in the development of the enormous,  world-wide UAS  industry and the economic benefits thereof, particularly when the prohibition  is based on no sound legal basis and is not only anachronistic and arbitrary and capricious but also discriminatory.  

            For a copy of NetMoby, Inc.’s a  Petition For Reconsideration, please contact Robert E. Kelly, Esq., at kellylawuas@gmail.com.

In Landmark Action, FAA Releases New Rules for Commercial UAS Operation

In a landmark event, Federal Aviation Administration (FAA) has published in the Federal Register on June 28, 2016 (81 FR 42063) a Final Rule entitled "Operation and Certification of Small Unmanned Aircraft Systems" that amends FAA regulations to adopt specific rules for the operation of small Unmanned Aircraft Systems (sUAS) in the National Airspace System (NAS).

 

This rule finalizes 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 will add 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 key element to this new part 107 to CFR Title 14 is to allow commercial operation of Small UAS.  The FAA states in the Final Rule that “This Part 107 small UAS rule is an “enabling rule,” which effectively reduces the cost of entry into the non-recreational, non-hobby (or “commercial”) market for UAS services.”

Other key elements are as follows:

•Unmanned aircraft must weigh less than 55 lbs. (25 kg).

•Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the remote pilot in Command and the  person manipulating the flight controls of the small UAS.

•Small unmanned aircraft may not operate over any persons  not directly participating in the operation

•Daylight -only operations.

•Must yield right of way to other aircraft.( “see-and- avoid”  requirement)

•Maximum groundspeed of 100 mph (87 knots).

•Maximum altitude of 400 feet above ground level (AGL) or, if higher than 400 feet AGL, remain within 400 feet of a structure.

•Transportation of property for compensation or hire allowed under certain circumstances.  Note: No transportation of property for compensation or hire is allowed between the District of Columbia and another place in the District of Columbia. See 49 U.S.C. 40102 (a) (25).

•a remote pilot in command must operate a small UAS and must either hold a remote pilot airman certificate with a small UAS rating or be under  the direct supervision of a person who does hold a remote  pilot certificate (remote pilot in command),

•Part 107 does not apply  to model aircraft that satisfy all of  the criteria specified in section 336 of Public Law 112-95.

• Part 107 codifies the FAA’s enforcement authority in Part 101 by prohibiting model aircraft operators from endangering the safety of the NAS.

See a copy of the complete FAA Summary of Part 107 here.

The Final Rule is effective August 29, 2016. 

A more detailed analysis of the Final Rule will follow in future posts.

FAA Reauthorization Act of 2016 Analysis

The United States Senate passed H.R.636, the  Federal Aviation Administration Reauthorization Act of 2016 (“Reauthorization Act") on April 19, 2016.  The Reauthorization Act contains many key provisions which, should they survive the committee process (The House of Representative’s version, entitled the Aviation Innovation, Reform, and Reauthorization Act of 2016 was reported from committee on February 11, 2016.)  The Senate version is substantially different from the House version.  The following is a series of posts which will provide an analysis of each of the major provisions in the Senate version relating to UAS.

One key provision of H.R. 636 is Section 2152, entitled “Effect On Other Laws.”  This section in no uncertain terms establishes the federal preemption of the rules governing unmanned aircraft systems.   

SEC. 2152. EFFECT ON OTHER LAWS.

(a) Federal Preemption- No State or political subdivision of a State may enact or enforce any law, regulation, or other provision having the force and effect of law relating to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of an unmanned aircraft system, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.

(b) Preservation of State and Local Authority- Nothing in this subtitle shall be construed to limit a State or local government's authority to enforce Federal, State, or local laws relating to nuisance, voyeurism, privacy, data security, harassment, reckless endangerment, wrongful death, personal injury, property damage, or other illegal acts arising from the use of unmanned aircraft systems if such laws are not specifically related to the use of an unmanned aircraft system.

(c) No Preemption of Common Law or Statutory Causes of Action- Nothing in this subtitle, nor any standard, rule, requirement, standard of performance, safety determination, or certification implemented pursuant to this subtitle, shall be construed to preempt, displace, or supplant any State or Federal common law rights or any State or Federal statute creating a remedy for civil relief, including those for civil damage, or a penalty for a criminal conduct. Notwithstanding any other provision of this subtitle, nothing in this subtitle, nor any amendments made by this subtitle, shall preempt or preclude any cause of action for personal injury, wrongful death, property damage, or other injury based on negligence, strict liability, products liability, failure to warn, or any other legal theory of liability under any State law, maritime law, or Federal common law or statutory theory.

While there are concession so lawmakers such as Senator Dianne Feinstein that wanted to vest control of UAS regulation in the state and local authorities, the Federal preemption of UAS regulation  os clear and well-grounded.

This is consistent with FAA’s well-established  position on federal preemption of UAS.  For instance, the FAA issued its State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet, Federal Aviation Administration, Office of the Chief Counsel, on December 17, 2015 (“FAA UAS Regulation Fact Sheet”.  In the FAA UAS Regulation Fact Sheet, the FAA set out clearly the basis for the need for federal preemption:

Substantial air safety issues are raised when state or local governments attempt to regulate the operation or flight of aircraft. If one or two municipalities enacted ordinances regulating UAS in the navigable airspace and a significant number of municipalities followed suit, fractionalized control of the navigable airspace could result. In turn, this ‘patchwork quilt’ of differing restrictions could severely limit the flexibility of FAA in controlling the airspace and flight patterns, and ensuring safety and an efficient air traffic flow. A navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system. See Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir. 2007), and French v. Pan Am Express, Inc., 869 F.2d 1 (1st Cir. 1989); see also Arizona v. U.S., 567 U.S. ___, 132 S.Ct. 2492, 2502 (2012) (“Where Congress occupies an entire field . . . even complimentary state

regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.”), and Morales v. TransWorld Airlines, Inc., 504 U.S. 374, 386-87 (1992).

As discussed elsewhere in this blog, Federal preemption is perhaps the most important legal topic in our nation of laws, and the we will now have to wait and see how forcefully the final FAA Reauthorization Act legislation  embodies this authority.