The Devo'lution issue of Dronin' On 10.28.17
Def. transference to another – source courtesy CCL

Hi all –

Hard to tell the players without a scorecard, especially this week. There are an awful lot of things happening that require some exploration so this is a bit on the long side. I am going to start off with the Presidential Memorandum, then look at the DAC and the LAANC rollout.

THE PRESIDENTIAL MEMORANDUM


PRESIDENT DONALD J. TRUMP IS MAKING AMERICAN AVIATION GREAT AGAIN

“Our Nation will move faster, fly higher, and soar proudly toward the next great chapter of American aviation.”

– President Donald J. Trump


SUBJECT: Unmanned Aircraft Systems Integration Pilot Program

“With the increase in the number of unmanned aircraft systems … America’s aviation pioneers need a regulatory framework that encourages innovation while ensuring airspace safety.”

This overview from Morning Transportation will get you up to speed:

TRUMP MAKES HIS MOVE ON DRONES: A presidential memorandum, issued Wednesday, directs DOT to establish a pilot program inviting state and local governments, in partnership with private entities, to enter into agreements with the FAA for sweeping waivers of current regulations on activities like flying at night and over people

The deets: DOT has six months to enter into at least five agreements, and the program is set to last three years… The FAA has been clear that it thinks state and local participation will be necessary for the foreseeable future.

Tips for your application:  Basically, FAA wants to know how you’re going to harness the technological innovation of drones without becoming a nuisance for people on the ground or creating concerns that drones are snooping into people’s personal space.

I encourage you to read the memorandum – there are a lot of specifics. Here is the raison d’etre – it’s reason for being:

To promote continued technological innovation and to ensure the global leadership of the United States in this emerging industry, the regulatory framework for UAS operations must be sufficiently flexible to keep pace with the advancement of UAS technology, while balancing the vital Federal roles in protecting privacy and civil liberties; mitigating risks to national security and homeland security; and protecting the safety of the American public,critical infrastructure, and the Nation’s airspace. 

Note the long list of particulars, many of which have been ordered by Congress but have yet to be addressed by the FAA.

In the Department of Transportation (DOT) press release, Secretary Chao remarked that:

“This program supports the President’s commitment to foster technological innovation that will be a catalyst for ideas that have the potential to change our day-to-day lives. Drones are proving to be especially valuable in emergency situations, including assessing damage from natural disasters such as the recent hurricanes and the wildfires in California.”

In the same release, Administrator Huerta added that:

“Stakeholders will have the opportunity through this program to demonstrate how their innovative technological and operational solutions can address complex unmanned aircraft integration challenges. At the same time, the program recognizes the importance of community participation in meaningful discussions about balancing local and national interests related to integrating
unmanned aircraft.”

The DOT was also ready with a Q&A, a Fact Sheet and a Program Overview.

Here is an editorial that Michael Kratsios, the deputy assistant to the president at the White House Office of Science and Technology Policy and the assumed administration godfather wrote for the WSJ, Donald Trump Embraces the Drone Age (behind a paywall.)

The future of American aviation is unmanned. Today, thanks to President Trump, we are taking a step toward that future.

I had the chance to speak with Lisa Ellman who heads the Global UAS Practice at Hogan Lovells and is the Co-Executive Director of the Commercial Drone Alliance. Lisa echoed Secretary Chao, pointing to the opportunity to shift the conversation to the positive things that drones can do based on first hand experience.

Ever enthusiastic, she told me that “This has the potential to create numerous opportunities for communities to talk about what they want based on a growing understanding of how drone technology can directly benefit them.” The firm prepared a 10 point briefing for their clients which she offered to my readers. You can download it here.

Here is the NYT coverage Trump Administration Program to Test Expanded Drone Use, which notes one of the most important details about what this actually means:

The White House stopped short of proposing new regulations that would allow the broader nationwide use of drones or any timetable for new authority. 

For a scholarly take, and the chance to learn a new word “devolution”, Sandy Murdock, the former FAA Chief Counsel and FAA Deputy Administrator, puts the memorandum in a larger context, White House UAS Devolution Policy Test Is VERY RISKY.

Federal preemption is a complex legal doctrine (express, implied, conflict and field) and courts are loathe to find that the supremacy clause denies local control. There is significant litigation over the FAA’s power to prohibit local governments from restricting airport operations and to locate air traffic routes. “experimenting” with devolution* of UAS regulation to cities and states may well give litigants and judges cause to limit and/or ignore the FAA existing powers with major consequences, unintended or otherwise.

* transference (as of rights, powers, property, or responsibility) to another; especially the surrender of powers to local authorities by a
central government

Let’s debunk self-serving Urban Legend #1 – the Memorandum had nothing to do with AUVSI’s letter to the President last week, though it is a reasonable bet that it was written to provide some air cover.

In fact, Patrick Egan unloaded with a biting piece (what else) tracking AUVSI’s waffling over the past months, When Your Letter to Congress Doesn’t Match Your Letter to POTUS (Oops..) In April 2016, AUVSI’s position was that there was no role at all for state/local government…

And let’s head off what could be Urban Legend #2, Paul Pocialik, a UAS Industry Consultant posted on LinkedIn, Did President Trump Just Torpedo NASA in the Commercial Drone Space?

If you think this sounds a lot like what NASA is doing now for the FAA under their joint UAS Traffic Management (UTM) initiative, you are right. This new pilot program provides an alternative means for state and local government to push the innovation envelope and take direct control of the effort, leaving NASA as the odd man out.

I respect Paul a lot and I do think there are some losers here (read on) but IMO it’s not NASA. The Memorandum is clear about NASA’s role:

Sec. 4.  Coordination. 

(a)  The Administrator, in coordination with the Administrator of the National Aeronautics and Space Administration, shall apply relevant information collected during the Program and preliminary findings to inform the development of the UAS Traffic Management System under section 2208 of the FAA Extension, Safety, and Security Act of 2016 (Public Law 114-190).

What no one but Jonathan Rupprecht is talking about in his new post, FAA Drone Integration Pilot Program (2017) is enforcement which has been a source of considerable discontent, especially among those trying to build a drone
service business.

Why didn’t this memo go further and tell the FAA to specifically change its enforcement philosophy on drones which is extremely relaxed… Furthermore, why didn’t the memo direct the FAA to go after the companies which repeatedly hire illegal drone operators? 

Perhaps such direction was considered too tactical, more likely this is the kind of stuff that is hidden from the big cheeses in an effort to make everything look rosy – after all this is based on the US$82B in promised economic impact and the 3 million drones that will be flying in 2020.

Instead, it appears that the enforcement problem is going to be solved another way – by the enforcers. Which brings us to Sec. 4. b, c, d, e which I interpret as a tacit change in the FAA’s role going forward:

(b)  The Secretary, in coordination with the Secretaries of Defense and Homeland Security and the Attorney General, shall take necessary and appropriate steps to:

(i)   mitigate risks to public safety and homeland and national security when selecting proposals and implementing the Program; and

(ii)  monitor compliance with relevant laws and regulations to ensure that Program activities do not interfere with national defense, homeland security, or law enforcement operations and missions.

And

(e)  In implementing the Program, the Secretary shall coordinate with the Secretaries of Defense and Homeland Security and the Attorney General to test counter UAS capabilities, as well as platform and system-wide cybersecurity, to the extent appropriate and consistent with law.

We seem to be headed for a world in which the FAA will continue to oversee safety, but enforcement will be shared with the agencies who have the resources to do so. Keeping in mind of course that 92.5%+ of the projected 3 million drones will be unregistered hobby units.

As regards (e), we know that it will take the Congress to change the laws that classify drones as manned aircraft and that prohibit jamming and other forms of hacking before there is a viable CUAS market. And that isn’t going to happen anytime soon.

Sec. 5.  Evaluation and Termination of UAS Integration Pilot Program sunsets the program in three years unless it is extended at the discretion of the Secretary. All of the learnings in the must be submitted annually to the President “…In consultation with the Secretaries of Defense and Homeland Security and the Attorney General.”

Rupprecht zeroes in on this wondering:

Rulemaking a long ways away? The data gathered from this program is going to be used for future rulemaking actions. Does that mean the over people, night, beyond line of sight proposed rulemakings are all delayed until the conclusion of this pilot program in 3 years?

The DOT Q&A says no. The timetable for allowing any kind of operation is not tied to the lifecycle of this pilot program. The FAA allows new types of operations when it determines they can be conducted safely and subject to existing authority provided by Congress. FWIW this is consistent with what PK told me about UTM.

Beyond the need for FAA rulemaking to move any of this forward, there is
another gotcha:

Sec. 7 General Provisions (b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

Meaning that at least until the next try at FAA Reauthorization in March 2018, there is no dedicated budget for this. One assumes that local governments and businesses who want to invest in the future will pick up the tab. As for FAA staffing and an administrator yet to be named, color it a mystery.

MY TAKE

IMO leading the list of entities being torpedoed are the FAA Test Sites which were specifically created to provide a resource-rich, controlled environment in which to test new concepts and develop best practices.

It would be one thing to say, we want to expand already rigorously tested operations into a broader range of situations so that local legislative needs can be assessed. But that is not what is happening. What appears to be happening is that any town or city that can put together a winning proposal and manage the negotiations, will in effect become a new test site.

Avionics gets at that with their headline, White House Drone Integration Program Calls for More Test Sites, Concept Evals. “[Gives the DOT] the power to enter into agreements with state, local and tribal governments to test drone operations and integration models.”

It will then be up to the town and their commercial partner(s) to manage the tests. (And the budget and expertise comes from???) Somehow the FAA and the other agencies are supposed to oversee all of this…

Since there is no limit on the number of towns that can participate (and no doubt the number of Congresspeople available to back their play) if the cost of entry isn’t too high, I think that it is reasonable to expect hundreds of proposals. (Smart folk will team up with the test sites.)

Consider Jonathan Evans recent post in which he wrote: “You can bet that Skyward will be submitting proposals in partnership with government.” Why not? Who wouldn’t want to partner with Verizon?

Then there is Trump’s constituency, in this case, some percentage of the 60,000+ rank and file who got their 107s and are trying to build a small business. The RPICs that all of this is supposed to help. Once again, they get kicked to the curb. Rupprecht points out that:

It appears many in the drone community are very angry at this. Just skim the Facebook groups to see. Many have vocalized that they feel betrayed that advocacy groups are not representing the majority but the large companies paying the advocacy groups.

Next, while DJI has single-handedly democratized aviation to the extent that every cartel, jihadist and pirate now has a personal air force (here’s the latest), sUAS in the US is now officially a money game. The notion of a level playing field is admirable – and that’s about all. To the well-funded have always gone the spoils.

Companies that choose to participate will gain a competitive advantage over those that don’t. (read the LAANC section below for more.) And for barristers, this could be better than the 333.

One also has to wonder what the role of the DAC should be in all this. (read the DAC section below for more.) We have been promised that the wrappers will come off of months of hard work by hundreds of dedicated people on November 8th.  What will we see? And what will come of those hours of deliberation? How will rulemaking move forward? Will this be a benefit or a distraction or a conflict
of interest?

But the biggest problem here, the 800 pounder in the room, is unfinished business. Until there is a Remote Identification standard that satisfies DOD, DHS and DOJ, who now have an even more substantial say; nothing much can happen.

Because in fact, nothing has changed… Or as Jonathan puts it:

This executive memo didn’t somehow undo law. This means anyone looking to “innovate” and is frustrated with the current exemption, waiver, or authorization process is going to realize that the memo, and law, will put them right back where they started. 

THE DAC

Hard on the heels of the collapse of the Remote Identification ARC a few weeks ago (The Broken ARC) comes a disquieting piece in the WaPo, A U.S. Drone Advisory Group Has Been Meeting in Secret for Months: It Hasn’t Gone Well.

The group in question is Task Group 1 (TG) which the FAA charged with developing recommendations for:

  • Defining Low-Altitude UAS Navigable Airspace Susceptible to State/Local Government Interests
  • Relative Roles and Responsibilities of the Federal, State and Local Governments

It would be nice to think that their work was foundational to this week’s Presidential Memorandum and informed the UAS Integration Pilot Program. Perhaps that’s the way someone drew up the play. Unfortunately, according to WaPo, it didn’t work out that way.

One U.S. official, who spoke on the condition of anonymity to discuss the group’s inner workings, said he found it “very bizarre” to have a representative of a “multibillion-dollar Chinese drone manufacturer” helping guide such a sensitive U.S. policy exercise — and doing it “out of the public eye.” “I don’t think it set a wonderful tone,” the official said.

In what is becoming familiar, the article continued saying that:

Several groups were blocked from receiving draft documents meant to represent their own “common ground” positions, emails show.

In response to this and other issues, John Eagerton, chief of Alabama’s aeronautics bureau and a co-chair of the group; San Francisco Mayor Edwin M. Lee (D); a representative of the University of Oklahoma; the National League of Cities; the National Association of Counties; and the National Conference of State Legislatures emailed a “statement of dissent” to other group members last month.

“Despite good faith efforts to engage in Task Group 1, many of us have been obstructed from meaningful participation and we all have serious concerns about the recommendations included in the draft reports.”

I know there are WaPo haters out there and #fakenewsers. Fair enough. The fifth meeting of the DAC is scheduled for November 8th which is the release date for the first round of Task Group reports. Are more shoes going to drop?

LAANC

The LAANC roll out has stirred up considerable controversy in certain quarters. What happened provides some insight into what lies ahead. IMO it reflects the fact that there is not enough air in the balloon for everybody…

The issue surfaced in a blog post by Kittyhawk co-founder Joshua Ziering, LAANC Fact Check: Can You Hear Me Now?

The problem isn’t the FAA leveraging private industry. Industry, at least one of the twelve, is leveraging the FAA. LAANC is doing its beta test at 10 regions this fall. However, the FAA has stated that the only companies that will be able to offer authorizations at those 10 regions are the 12 companies that were a part of the initial working group. That sounds an awful lot like the FAA picking winners and king-making. Giving certain companies months of exclusive access to a precious resource is at best anti-competitive.

I disagree with many parts of Ziering’s post and have made my opinion known to his team. The fact is that the rules for the FAA UAS Data Exchange were
very clear.

A prototype evaluation with FAA approved UAS Service Providers will take place in Fall 2017—Spring 2018. The evaluation involves 10 Air Traffic facilities and nearly 50 airports.

The 12 companies that got to play responded to a Request for Information (RFI) in March 2017 and were selected by the FAA to be part of the working group. How many other companies may have applied is unknown, nor are the selection criteria clear. Why only Skyward and Airmap have received FAA approval at this point (i.e. why the other ten, if in fact they are still involved, have not) is unknown. In what is fast becoming a recurring theme, I find the lack of transparency troubling.

This document, 2017 FAA LAANC CONOPs v0.93, spells out the relationship.

3.7 Collaboration between Industry and FAA It is expected that the FAA will work with industry partners to establish the LAANC…

3.8 Collaboration within Industry (Industry to Industry cooperation) It is expected that industry stakeholders will collaborate with each other as well as the FAA…

Skywards Matt Fanelli wrote a post in which he described the work involved.

The process involved meetings over the course of a year in which Skyward and the 11 other members helped to define the program, agreeing to a memorandum of understanding outlining the rules for the LAANC program, and demonstrating that the software we built met thoserequirements.

If you want to track the to and fro, Miriam McNabb writing in DroneLife.com has an on-point analysis, The LAANC Solution and Government Committees:
Who Benefits?

Here is the moral of the story. This is the way that the government works. You have to invest up front and work within the system. The result is first mover advantage – something Silicon Valley – and Kittyhawk – understands.

COMING ATTRACTIONS

Judging by the first-hand reports I have received, Commercial UAV Expo Americas was a huge success – props to Lisa Murray and her very hard-working team.

One of the big announcements was that Diversified Communications (the parent company) has purchased the rights to Drone World Expo. If you read my show report, you know that the content was brilliant. Some of you might have noticed that I didn’t talk about the attendance or the floor. Once the sharks of Sandhill Road decided to swim elsewhere, the appeal of downtown San Jose and SJC rapidly faded.

The big win for Diversified is that Gretchen West, Senior Advisor at Hogan Lovells and Co-Executive Director of the Commercial Drone Alliance, who acted as Drone World Expo’s Advisory Board Chair will continue to play a role going forward. In the press release Gretchen says:

“On behalf of the Commercial Drone Alliance, and along with my fellow co-executive director, Lisa Ellman, we are thrilled to support this merged event and will continue our focus of bringing the most relevant, timely and critical content to the Commercial UAV Expo with the most prominent decision-makers in our industry. 

Alrighty then. See you next year ladies. Let the ax fight that is the Game of
Shows continue.

MUST SEE

These 360° Drone Maps of California’s Wildfire Damage Are Horrifying. 10,000 photos of a charred neighborhood, stitched together:

For scientists studying how wildfires spread, this data will be invaluable for understanding how wildfires rip through residential areas. Gas and electric companies can use the data to understand how to rebuild. Evacuated residents can get a glimpse of what they’ll return to once they’re allowed to go back to where their homes once stood.

Thanks for reading and for sharing. You can peruse the back issues of Dronin’ On here.

best,
ck

Christopher Korody
DroneBusiness.center
chris@dronebusiness.center
follow me @dronewriter