Two months ago, a young man playing with his new $500 Quadcopter in his living room, decided to open his window and fly it around outside. After a few minutes, he found that the drone would no longer answer the commands from the controller. It hovered for a couple of minutes then shot up, rising hundreds of feet into the night sky before taking off at a high speed, eventually crashing on the White House lawn. The incident highlighted the fact that for almost a year, drones have been effectively unregulated. This week, ahead of schedule, the FAA published a Notice of Proposed Rulemaking for Unmanned Aircraft Systems (UAS) and while many have heralded the proposed rules as a positive step, companies like Amazon were left out in the cold; effectively killing Amazon Prime Air. What are the rules, which groups are affected and how do these rules effect the burgeoning drone photography industry.
The FAA Rulemaking
The Federal Aviation Administration (FAA), the agency in charge of regulating aircraft, had been discussing drone regulations for years, but rather than go through the formal rulemaking process, in 2007, it issued a policy notice, which updated current rules to incorporate drones. Until March 2014, the FAA has been relying its policy notice as law, when a Federal Judge ruled it was not legally binding. With that ruling, drones became effectively unregulated and legal to fly in the U.S.
With the dramatic increase in drone availability over the past couple of years, a lot of industry players, from pilots afraid of collisions to the ACLUs concerns over privacy, rules over drone use needed to happen. So Congress stepped in, mandating that the FAA write new rules by September 2015, tasking the FAA with determining “which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security.” As well, the FAA was required to determine whether “airworthiness certification is necessary to mitigate the public risk posed by the unmanned aircraft systems that are under consideration.”
So, the FAA developed a framework, primarily for commercial or recreational aircraft, but leaving out hobbyists, such as those flying model airplanes. The operative word here is commercial. For the professional photographer using drones to take aerial photos for real estate listings, or perhaps paparazzi photographers trying to get that next great photo of a Kardashian, these rules will apply should they be made into law.
What about the hobbyist photographer who is just using a drone to take photos for fun? That remains a gray area. While the proposed rule clearly states: “This rulemaking proposes operating requirements to allow small unmanned aircraft systems (small UAS) to operate for non-hobby or non-recreational purposes” it also lists the type of usage that would come under the proposed framework:
- Crop monitoring/inspection;
- Research and development;
- Educational/academic uses;
- Power-line/pipeline inspection in hilly or mountainous terrain;
- Antenna inspections;
- Aiding certain rescue operations such as locating snow avalanche victims;
- Bridge inspections;
- Aerial photography; and
- Wildlife nesting area evaluations.
While aerial photography, which may include hobbyists, fall under these rules, interestingly, the drone that crashed onto the White House lawn won’t fall under these proposed rules.
Proposed Rules for Unmanned Aircraft Systems
The FAA’s Proposed Rules for Unmanned Aircraft Systems (UAS) are fairly straightforward.
- Drones must weigh less than 55 lbs.
- Drones can only be flown during daylight hours and the operator must have a line of sight to the aircraft at all times.
- Operators must be at least 17 years old and will be required to pass an initial knowledge test, a take an updated test every 24 months.
- Operator must pass a Transportation Security Administration (TSA) review.
- Aircraft cannot operate over a people who are not controlling the craft.
- Maximum speed is 100mph and the maximum height is 500 feet. Just as any other aircraft, aircraft markings are required.
- These rules will not apply to model aircraft or hobbyists
The new rule also proposes operating limitations designed to minimize risks to other aircraft and people and property on the ground:
- A small UAS operator must always see and avoid manned aircraft. If there is a risk of collision, the UAS operator must be the first to maneuver away.
- The operator must discontinue the flight when continuing would pose a hazard to other aircraft, people or property.
- A small UAS operator must assess weather conditions, airspace restrictions and the location of people to lessen risks if he or she loses control of the UAS.
- A small UAS may not fly over people, except those directly involved with the flight.
- Flights should be limited to 500 feet altitude and no faster than 100 mph.
- Operators must stay out of airport flight paths and restricted airspace areas, and obey any FAA Temporary Flight Restrictions (TFRs).
The new rules would not apply to model aircraft. However, model aircraft operators must continue to satisfy all of the criteria specified in Sec. 336 of Public Law 112-95, including the stipulation that they be operated only for hobby or recreational purposes. The upshot is that drones are not toys; they are aircraft and should be treated as such.
What does all this mean? Most people aren’t familiar with how the rulemaking process works. What does it mean that the FAA issues a “notice of proposed rulemaking?” Why not just issue the proposed rules? How long will it take for them to become law?
Let’s take a look at how Agencies, like the FAA, have the power to regulate and the process they must go through to impose those new regulations. Then, hopefully, we can understand what comes next for these rules, how long we might have to wait for the final rules to be implemented and what this means for the visual artist, particularly photographers.
Rules are Issued Through Independent Agencies
The FAA is one of dozens of independent agencies, authorized by the President and Congress to handle specialized governmental tasks. Independent agencies work outside of the three branches of government, given power by statute to develop, enforce, and interpret regulations. Independent Agencies, like the FAA, are Constitutionally part of the Executive branch but are actually independent from it. While the President can appoint Agency heads and the commissioners that oversee agency operations, the President’s power to remove the appointees is limited, and as such, they are considered independent. Independent agencies have the power to adjudicate, legislate, and enforce laws but they must follow an open public process outlined in the Administrative Procedure Act (APA).
The Rulemaking Process
Generally, agencies decide which issues will require rulemaking; after all, they are the experts in that field. However, Congress can also mandate that an agency initiate proposed rules on particular topics. Drone laws were initially tackled without any Congressional mandate. Back in 2007, the FAA knew that Drones needed to be regulated but rather than take the proper steps to create the laws, the agency kicked the can down the road; instead classifying drones in the same way as manned aircraft. The agency issued the policy notice mentioned earlier, which included all the rules drone pilots were to follow. Unfortunately for the FAA, making policy instead of rules only works if people follow them. Once someone breaks the rules, the agency must step in to enforce them, giving the defendant the opportunity to attack the policy. And that’s exactly what happened to the FAA.
In early 2013, Raphael Pirker, a filmmaker, used a drone to film a commercial at the University of Virginia. Pirker didn’t have the required permits, amongst other things that the FAA had mandated, so the FAA fined him. Pirker fought the case claiming that the fine was based on the policy notice, which he said was not legally binding. The judge agreed, which is what made the policy notice ineffective. That left drone law in limbo. One might think that the FAA would have had draft rules ready to go, but apparently, they were counting on the policy notice to be valid.
So Congress had to step in and force the FAA to write new rules. Congress gave the FAA over a year to propose rules. Why does it take so long? Given the multiple organizations and interest groups affected agencies are required to follow a detailed procedure for rulemaking that is designed to be fair to all parties, as well as take into account the impact that the rules will have on the public.
Before the rulemaking process begins, an agency evaluates various methods, trying to find the least burdensome. Agencies will gather information, do studies, and have informal conversation with the various groups who are interested in the issue. In many cases, agencies will do a cost-benefit analysis, which can help the agency determine which is the best approach. The agency may also look at alternative ideas, such as “marketplace incentives” to change behavior. i.e. raise the drinking age to 21 or your state will lose it’s Federal Highway funding. For its drone analysis, FAA contracted with six field sites around the U.S. to test various issues, like technology, safety, and traffic control. Unfortunately, this pre-process isn’t always transparent. The public doesn’t get to see how the decisions are made; only seeing the results in the form of proposed rules. Last week, the public had a rare chance to see the process the FAA’s cost benefit analysis on drones when it was leaked onto the Internet.
Once the various internal analyses are completed, the agency will submit a Notice of Proposed Rulemaking, which is the official document explaining how the agency intends to fix the problem. At that point, interested groups, such as corporations, non-profits, Unions or other influential parties, have an opportunity to make comments regarding the rules. The 195-page FAA Proposed Drone Rules were published in the Federal Register for anyone to make comments. Think Lobbyists, although lobbyist can often enter the process much earlier, especially if there is a chance for negotiated rulemaking, where a group of interested parties attempt to hammer out rules they can all agree on. Remember, it was the lack of public comments that led the Judge’s decision in the Pirker case. The public had the right to take part in the rulemaking process, and having been denied that pleasure, the rules were invalid.
Now the power game begins. Which groups will have the greatest influence on the process? One of the companies with the most to lose is Amazon.com and Prime Air. Paul Misener, Amazon vice president for global policy, said the FAA’s proposed new rules “wouldn’t allow Prime Air to operate in the United States.” Prime Air is the name of Amazon’s developmental program for drone delivery.” According to Amazon, Prime Air’s octo-copter drones, which wait, ready to deliver, at the end of conveyor belts, have a range of 10 miles and will be capable of delivering packages up to five pounds with the aim of getting them to homes in under half an hour. However, under the proposed rules, the drones need to be human manned and must be in line of sight from the operator. That won’t happen at 10 miles away. As well, the drones are not allowed to fly above people, effectively making it impossible for Amazon to bring Prime Air to market. Despite the setback, Misener still says that Amazon is “committed to realizing our vision for Prime Air and are prepared to deploy where we have the regulatory support we need.” The undercurrent of that statement is that they are going to Lobby heavily to see either rules changed; maybe a carve-out for unmanned automated delivery vehicles or even a push for an act of Congress.
Other groups are happy with the proposed rules. For years, some groups have been saying that drones are not the same as manned aircraft, wanting them reclassified. Jesse Kallman, head of regulatory affairs for Airware, which develops navigational equipment for commercial drones, called the proposal “refreshing” for not requiring a pilot’s license or aircraft certification.1 Groups like the Academy of Model Aeronautics are extremely relieved that these rules do not apply to model airplanes and pilots are happy that the proposed rules would eliminate some of their safety concerns over shared airspace. The groups have the next 60 days to make their comments, and do what they can to influence the final rules.
Now what? After the 60-day comment period is completed, the FAA team will review all the information and incorporate changes into a final rule. Some of the groups have millions of dollars at stake. Companies like GoPro, the industry leader for drone photography, will likely spend a lot of time and money. That will be good for photographers who are unlikely to look at these rules favorably. Hopefully the agency will base its reasoning on the comments, scientific data, expert opinions, and facts, rather than political muscle and favors. Either way, the process could take a while, especially with companies like Amazon pushing their weight around, so don’t expect the final rule until 2016, or maybe even 2017.