The Super Moon at Taos Plaza

Hi all –

When I signed off last week, my plan for this week was to wish each of you a magical Holiday and a bright shiny New Year. I made this image at Taos Plaza on the occasion of the super moon. No silvers were hurt in the making of
this picture…

But that was not to be. The FAA broke two big stories this week that I think you should be aware of because they set the stage for 2018.

  • The FAA has created UAS National Security restrictions and added more no-fly zones.
  • And the long-delayed, still controversial Remote ID ARC report is out.

DOE NO FLY ZONES

The FAA has issued a NOTAM making seven Department of Energy (DOE) sites no-fly zones under the newly crafted UAS National Security restrictions. The complete FAA press release is here.

This is the first time the agency has placed specific airspace restrictions for unmanned aircraft, or “drones,” over DOE sites. 

The FAA is considering additional requests from other federal security agencies for restrictions using the FAA’s § 99.7 authority to support national security and defense, as they are received.

A couple of things here worth noting. First, these sites are different from your run of the mill public utility nuclear plants. For instance, according to the National Nuclear Security Administration (NNSA): 

The Pantex Plant, near Amarillo, Texas, is charged with maintaining the safety, security and effectiveness of the nation’s nuclear weapons stockpile. 

Second, and this is the larger point, just as with the 133 military bases placed off limits earlier this year, there has been no public discussion about the rules of engagement. In other words, it is unclear what facility security would be allowed to do given that the drone is protected by both the FAA and the FCC.

This is a real question. At present, only US military nuclear bases have openly committed to interdiction. In March 2017, the Washington Times ran Drones Threatened Nuclear Facilities:

USAF Gen. John E. Hyten [ Commander, United States Strategic Command] revealed the drone threats in written testimony before the House Armed Services Committee for a hearing on nuclear deterrence.

“Of recent concern have been the unauthorized flights of unmanned aerial systems (UAS) over Navy and Air Force installations,” Gen. Hyten said. “These intrusions represent a growing threat to the safety and security of nuclear weapons
and personnel.”

Currently, the Navy and Air Force are planning to deploy counter-unmanned aerial system defenses that Gen. Hyten said will “effectively detect, track and, if necessary, engage small UAS vehicles.”

FreeBeacon.com provided some additional detail from the General’s testimony:

Air Force Gen. John E. Hyten, Stratcom chief, told a Senate hearing that he recently issued new policy guidance on how security personnel at nuclear bases should respond to unauthorized intrusions by remotely piloted drones. Gen. Hyten said recent incidents of unauthorized intrusions by drones at Navy and Air Force facilities were “incidental” overflights and not deliberate surveillance or other nefarious activity.

“But the fact that they’re occurring, and then if you watch what is happening overseas in the [Central Command area of responsibility] with the use of lethal [unmanned aerial vehicles], and the use of UAVs for surveillance on the part of a terrorist adversary, I’m very concerned that those same kinds of UAVs could be employed against our weapon storage facilities, especially the nuclear weapon storage facilities,” the general said.

This is an extremely knotty problem that you will be hearing a great deal more about in the coming year(s) as the discussion extends to private critical infrastructure under SEC 2209. You may also hear about it as hundreds of thousands of people gather for bowl games across the country, culminating of course at the gran’daddy of no-fly zones, the Super Bowl.

UAS ID AND TRACKING ARC

The ability to distinguish friend from foe makes a handy segue to the other big news item, which is that the FAA has released the report of the UAS ID and Tracking Aviation Rulemaking Committee (ARC) to the Federal
Aviation Administration
.

You might remember that this group agreed to disagree in October when a majority of the participants refused to sign the draft. (see the Broken ARC issue.)

Bill Carey writing in Aviation Week tallied up the score:

“According to the ARC final report, 34 committee members concurred with the recommendations as written; 20 concurred, but with exceptions; eight dissented; and 12 did not respond.

During testimony to the House at the end of November, Rep. Bud Shuster (R-PA), who chairs the Transportation and Infrastructure Committee, pressed the FAA’s Earl Lawrence to get a remote ID solution in place saying that “Slowness [in rulemaking] was a key part of the problem, and that remote identification of UAS was key to both law enforcement and public safety.”

Emphasis mine but it’s pretty clear what they are worried about.

The ARC report will be used by the FAA as they develop a proposed rule for remote identification. That rule will then go through the rulemaking process that Shuster is so unhappy about.

First let me say that the report is a thoughtful, well-written document that examines the question from a number of perspectives including technology options, a sequenced implementation program and privacy. It is clear that a lot of people (74 companies are listed) busted their butts. Thanks to all of you! This is an impressive product.

I thought that the discussion under 5.1.2.1 Ease of Compliance starting on page 11 cut right to the chase:

…Broad compliance is critically important for an ID and tracking solution to have value. The assumption is that most owner/operators want to be compliant. The likelihood that they will comply depends upon the relative ease of complying, the perceived costs of complying, the penalties for non-compliance, and any potential rewards from compliance. One could think of the “Likelihood of Compliance” to include the “Motivation to Comply” along with the “Deterrence of Compliance.”

Page 23 begins a series of four table comparing the eight technologies that the group evaluated.

Finally, on page 35, the proposal for Tiered UAS direct broadcast and network publishing requirements for remote ID and tracking begins. This is a very complex four tier concept that deserves your careful study.

Here is a handy-dandy summary of some of the key elements from Betsy Lillian, FAA Releases UAS Remote ID, Tracking Report; Groups Dissent.

Also highly recommended are the Appendices which bring the different points of view into clear focus. Think of it as the definitive players and scorecard on
this issue.

THE CONUNDRUM

The arguments here bring the future of the industry into sharp focus. At the heart of the discussion is the question of how we build the ‘highways in the sky’ that our industry needs to grow.

Since the implementation of the original registration rule in December 2015, commercial v recreational/hobbyist has proven to be an increasingly artificial distinction that serves no one’s interests. For the most part, people are flying the same gear under the same rules except one is for profit.

Similarly the 336 Community Based Organization carve out might have made sense in 2012 when the AMA’s focus was on RC aircraft and the sky was not yet black with three million+ drones. It doesn’t matter what forecast you look at, it is clear that going forward every year will add at the very least hundreds of thousands, if not millions, of ever more capable drones.

As an industry we have two choices. One is we can stick our collective props in the sand, hold our breath and hope that nothing bad happens. The problem with that approach is that no one ever got rich betting against Murphy and his
merry band.

The other choice is to advocate for a universal baseline that ensures that everyone who flies, knows and follows the same set of rules and utilizes the appropriate equipment. This is not particularly visionary – the EU and the UK are implementing this for 2018.

Remote identification is an essential extension of this concept – and again it has to be universal to be effective.

So it is not surprising that in a press release published December 19, the Commercial Drone Alliance announced their formal dissent to the ARC report. (Alliance Co-Executive Director Lisa Ellman served on the ARC.)

The Alliance disagrees with any approach that would permit a huge segment of the drone community to avoid participating in the UAS ID and tracking system and complying with the corresponding ID and Tracking regulations. The number of vehicles registered for commercial use is a small fraction of the number of vehicles registered for hobbyist use. The percentages may change slowly over the next several years as commercial activity grows, but recreational drone activity is growing as well.  

Fellow committee members General Aviation Manufacturers Association, the Aerospace Industries Association, the National Agricultural Aviation Association, X, GE, uAvionix, Ford Motor Co., AirMap, and General Atomics, joined the Alliance in the dissent saying that they “Appreciate the extensive efforts of the ARC but strongly disagree on the critical point of who and what UAS should have to comply with ID and tracking requirements.”

Brendan Schulman, Vice President Policy, DJI (@dronelawyer) was quick to tweet a retort noting that:

This misrepresents the ARC’s work. There was no proposal on the table to exclude hobbyists, rather a question of which UAS would require Remote ID based on their capabilities, not on the purpose of their operation.”

In another tweet, Brendan offered a link to a DJI Technology Discussion of the report which puts forward an argument in favor of adopting their existing technology. Given their share of the market, this should deserve consideration but I digress.

Let’s be serious here. Every DJI in the sky, and every Yuneec, 3DR, Autel, Parrot and others all have the ability to operate autonomously and stream a live view. Who would want a drone without them?

Lisa’s piece for The Hill, For Commercial Drone Industry to Take Off, Hobby Drones Need IDs Too, puts the problem of having an exempt class in the starkest possible context.

It is impossible for a law enforcement officer to tell offhand whether it qualifies as a model aircraft or an aircraft authorized by FAA rules. 

Go back to Rep. Shuster’s comment. Go back to the General’s comments. They are not going away.

If nothing else, this year has made it clear that without law enforcement and security buy-in, none of the goodies that everyone is banking on – over flight, BVLOS, autonomous ops, UTM are going to happen on a timely basis.

So where does this leave us? First – and this is a good thing – the report provided the FAA with pages of good ideas and competing opinions. As Bill Carey reported:

“Overall, the ARC provided the FAA with a substantial amount of useful data, including very detailed technology evaluations and a comprehensive list of law enforcement needs and preferences,” the agency stated.

Of course, the ARC is not the only voice that will be considered. It is easy to predict that whatever shape the proposed rule finally takes, the OIRA and NPRM processes will be contentious. And then comes enforcement… another issue that needs to be addressed before all credibility is lost, but again I digress.

NEXT STEPS

I believe that if you want to provide a foundation for the growth of a robust commercial industry, every aircraft over 250 grams must be registered and squawk; and anyone who wants to fly a sUAS, for any reason – commercial or recreational – must sit an exam and be issued a license. No exceptions – again commercial v. hobbyist is an artificial distinction that has already failed the test of time. Again lots of other countries are already doing this.

The fact is that the industry has changed a great deal since the Congress first instructed the FAA to integrate drones into the NAS in 2012. Now it is time to align access with similar concepts to those that have been developed for
manned aviation.

As Dronin’ On guest post contributor Commander Frank Mellott (USN Ret), an aviation safety expert, wrote over a year ago in 333, 107, Recreation & 101 – A Dangerous Regulatory Mess!, the FAA needs to rationalize the rules so that they are knowledge, skill and training based.

Frank wrote the article because at the time – and in the past 15 months nothing has changed – someone flying under the rules of a 336 Community Based Organization (like the AMA) can actually fly bigger, higher and faster than anyone flying under 101 (five and fly), a 333 which required a manned license many of whom now fly under 107 (IACRA) or Part 107.

The Commercial Drone Alliance release explains one of the things that has to happen in terms that Rep. Shuster and his committee may now be open to:

Congress must eliminate or amend Section 336 of the FAA Modernization and Reform Act in order to enable the FAA to properly regulate drone security issues. 

But there is considerably more that must be done. Congress will have to address the issue of interdiction to put some teeth into the increasing number of no-fly zones being requested by various agencies (e.g. this week’s DOE exemptions) as well as the SEC 2209 rule to protect critical infrastructure that was part of last year’s FAA Extension.

Specifically we are going to have to address and solve some very complex issues to move forward:

  • Drones are going to have to be classified as something other than manned aircraft so that they can be shot down. (They are ‘just’ robots after all.)
  • There are going to have to be provisions to jam, spoof or otherwise disable them so they can be diverted or grounded.
  • And as blowing things out of the sky can have unintended consequences, there are going to have to be some kind of indemnity provisions for those authorized to do so.

My wish for 2018 is that the Alliance, AUVSI, Small UAV Coalition and various industry associations (e.g. oil and gas, electric, telecom) together with DJI can come together to use their collective lobbying power to move these issues to the forefront of the upcoming FAA Reauthorization debate.

That would make for a much happier New Year for the commercial
drone business.

DASH AWAY ALL

And laying his finger aside of his nose,

And giving a nod, up the chimney he rose;

He sprang to his sleigh, to his team gave a whistle,

And away they all flew like the down of a thistle.

But I heard him exclaim, ere he drove out of sight—

“Happy Christmas to all, and to all a good night!”

Thank you for your time, your interest, your commitment to our growing industry and your friendship. See you next year!

best,
ck

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