images courtesy Pixabay

Hi all –

I was raised to mind my elders and respect authority. Regular readers, know that those lessons have not entirely stood the test of time. Which brings me to the NPRM, specifically the Operations Over People (OOP) section, which is the subject of this weeks issue.

In the hopes of piquing your interest without giving away the punchline just yet, I can sum it up as NRPT – Not Ready for Prime Time. Plus, an update on last weekends ULC Drone Tort committee meeting and The Pulse

I am delighted that two interviews were released this week. First, the 2019 forecast I did with the Editor of CUAV NewsJeremiah Karpowicz, is being offered as part of a free report, Commercial Drone Insights from 8 Industry Experts. Nice to be in such good company.

And a new interview I recorded last week with Marketing Manager Mike Pehel for his InterDrone podcast series, Episode 21: Time to Comment on the FAA’s NPRM and ANPRM w/ Christopher Korody, is now available for your listening pleasure.

THE FAA

Jet engine Turbine blades
Turbine blades – image Pixabay

Morning Transportation offered up a couple of interesting tidbits Friday.

ELWELL HAS NO INTEREST IN COUNTERDRONE AUTHORITY: …The acting FAA administrator said he would oppose giving his agency the ability to intercept drones. “There have been proposals in the past and discussions about the FAA being responsible not only for detection of drones but mitigating drones around airports,” Elwell said. “And I will tell you, as long as I’m working at the FAA, I’m frankly gonna fight to not have FAA take things out of the sky.” He also said FAA is working on a document “with sort of a frequently-asked-question thing and what we’re doing to go through the standards and the performance that we will expect for a drone mitigation system at your airport.”

This supports the long held contention that DHS will play an ever increasing role in drone enforcement. Which frankly makes perfect sense.

Setting the record straight: After speaking, Elwell told reporters he never took himself out of contention to be permanent administrator, which The Wall Street Journal had reported. “I don’t even know I’m being considered, much less being able to say, ‘Don’t consider me.'”

I like that man.

Another reminder that on February 13, 2019, the Federal Aviation Administration (FAA) published:

(1) An Interim Final Rule (IFR) on an External Marking Requirement for Small Unmanned Aircraft – the comment period closes March 15th.

The page has had 19,000 views. To date there are no comments.

(2) A Notice of Proposed Rulemaking (NPRM) on the Operation of Small Unmanned Aircraft Systems (UAS) over People – you have 60 days to comment.

The page has had 6,000 views. It is stunning to me that to date there are only
35 comments.

(3) An advanced NPRM (ANPRM) on the Safe and Secure Operations of Small Unmanned Aircraft Systems – you have 60 days to comment.

The page has had 3,600 views. To date there are no comments.

Each link takes you to the appropriate page in the Federal Register, where you will find details about the rule as well as a link to the Comments page (in green,
top right.)

For contrast, Part 107 garnered some 5,000 comments. Time to get busy people.

ULC

Hey Mister. Gimme my drone back – courtesy Pixabay

If you’re new to the story, a Uniform Law Commission (ULC) Committee was specifically established to ”Draft a uniform act or model law addressing tort liability and defenses associated with the unique use of aerial drones.”

To say that the first draft of the Law, which I reported in the Bright Line issue last year, freaked a lot of people out is an understatement.

Since then an army of observers representing the interests of the sUAS community has been effective in influencing the Committee – a group noteworthy for their almost complete lack of experience with drones. Just keep trying to remember that almost nobody does.

Wiley Rein Partner Josh Turner who attended the meeting as an observer, told me that the March 1-2 draft is now more like existing aerial trespass laws governing manned aircraft. The new definition:

An aerial trespass occurs when a person intentionally and without consent of the landowner operates an unmanned aircraft in the airspace over the landowner’s property and by so doing causes substantial interference with the use and enjoyment of the property.


The new draft proposes a series of 10 tests or factors that a prosecutor or judge can use to establish ‘substantial interference’ as the basis for a tort.


Josh said that he feels that the current draft has struck a balance between the rights of the property owner and the right to navigate the airspace.

Privacy, which has always been the second part of the draft, is
pretty straightforward:

A determination of whether an unmanned aircraft’s operation over property was used to violate a privacy-related right shall be based upon a review of the totality of the circumstances, including:

(1) Whether by hovering or repeated flights the unmanned aircraft was likely to have provided the operator with the opportunity to use the unmanned aircraft to view, listen to, record or capture by camera, microphone or other device, individuals who were present at that place and time; and,

(2) Whether the operator made statements or took other overt actions indicating a desire to use an unmanned aircraft to infringe upon rights of privacy recognized in this state. 

Most states have applicable privacy statutes in place. The question is, should there be a specific (different) privacy standard for drones?

Josh summed up the nuances explaining that the issue is determining if there is something new that a drone can do (because there already are many ways to photograph and record,) or is the concern simply a reflection of the fact that drones are new.

I have to say, these folks put in the time. There is a follow-up phone meeting
in April.

The final draft will be presented to the entire ULC membership at their annual meeting in July, at which time they will vote to ratify it. Assuming that it passes, ULC members will roll it out to their state legislatures for adoption.

Concerned parties can still influence the outcome by writing to the Committee. Easier to try and change it now, than state by state. I will continue to provide updates, but if you are interested, go to this link and become an observer which will get you on the distribution list.

THE PULSE

Graphic Three ways to kill a drone CUAS
Three ways to kill a drone – courtesy WSJ – click to view

This is a collection of the headlines I came across this week which may help you to put the NPRM and ULC in the larger context of public and government perception.

Rotor & Wing reports DHS Planning Drone Mitigation and Tracking Evaluations Later This Year. A good write up with a lot of new details including a focus on the Northern Border. (Waaat?)

WSJ went with Weapon Makers Declare War on Drones, A new arms race in anti-drone technology is emerging, as airports and militaries face an increasing menace from unmanned aircraft. Enjoy the cheery graphic, Three Ways To Kill A Drone.

Also in Rotor & Wing, NFL Security Chief: ‘Urgency’ Felt To Get Counter Drone Technologies Fielded.

There is a “sense of urgency” among security officials in the U.S. that they need systems and technologies to counter potential threats from unmanned aircraft systems (UAS), the head of security for the National Football League said Feb. 28.

Perhaps less newsworthy, but certainly more concerning, February Was a Big Month in Privacy: Here’s What You Need to Know from Wiley Rein which highlights six different privacy initiatives:

  • The House,

  • The Senate,

  • The National Institute of Standards and Technology (NIST),

  • The National Telecommunications and Information Administration’s (NTIA),

  • The FTC which is doing their own call for public comments and

  • The California Consumer Privacy Act

I will also address privacy in the context of the NPRM, and there is a privacy component in the Drone Tort Law. Anyone see a trend up and to the right here?

Another way this plays out, Should Police Need a Warrant to Collect Evidence
With Drones?

Nationwide, there’s no standard when it comes to police using drones, although the Supreme Court has weighed in generally on the subject in Florida v. Riley. In that case, the Court ruled there’s no right to privacy when it comes to police observation in public airspace, reinforcing existing standards when it comes to the use of
police helicopters.

Forbes adds, Eyes In The Sky: The Public Has Privacy Concerns About Drones which offers a review of a number of recent studies on the topic. The none too startling conclusion:


What do all these findings tell us? Generally, people do not like to be watched. They particularly do not like to be videotaped secretly from the sky. 


And finally, from Axios, Sky-High Hopes for Drones Tethered to Safety Concerns – “Last week, top FAA officials traveled to Rwanda to see how the country has managed to embrace drones on a national scale with the help of an
American company.

“Yes, but: The U.S. national airspace system is more complicated than Rwanda’s, says Jenny Rosenberg, Executive Director, Alliance for Drone Innovation, which represents drone manufacturers.

THE NPRM

Here is the proposed rule, Operation of Small Unmanned Aircraft Systems Over People. The link will take you to the Federal Register where you can read it
and comment.

Full disclosure. I am not a proponent of Operations Over People. I think it’s run before you can crawl. So I decided that I would practice what I preach and comment. To avoid the embarrassment of “didn’t you read the rule?”, I read the rule. And my concerns increased exponentially.

I have posted my Formal Comment to the DroneBusiness.center website so you can read the whole thing if you are so inclined – feel free to cut, paste and modify if that will get you going. And of course, feel free to disagree. I will post to the Federal Register by Monday.

Let’s start with debunking the spin that the FAA is “relaxing” the rules. “NO you can’t” is the law. It is not a rule. There is no rule for “YES you can”. That’s what we need. Big difference. Then we can relax.

In February 2016, the FAA convened the Micro Unmanned Aircraft Systems Aviation Rulemaking Committee (ARC).

The stated objective of the ARC was “to consider recommendations for a performance-based standard that would allow for micro UAS to be operated over people who are not directly participating in the operation of the UAS or under a covered structure,” which would ultimately contribute to an enforceable rule imposed by the FAA.

27 companies sent representatives, who with a few notable exceptions had little or no direct experience with drones. They met once for three days in March and submitted their final report on April 1, 2016. Please keep in mind that this was a little over two months after the Registration rule and almost six months before Part 107 went into effect.


At the time, the only drones flying commercially were operating under 333 with both a licensed pilot and an observer.


We have reached the point in our evolution that the FAA is beginning to move from the general to the more specific. That’s one thing that makes getting this right
so important.

But, if you read the NPRM, you will only come away with two things.

First, the rule is narrowly focused on kinetic energy, covering rotating parts and manufacturer compliance. It is a textbook case of a salesman identifying the objection they have to overcome, then putting all of their energy into solving for that one small piece of the puzzle.

The second is that a fresh behind the ears RPIC can immediately fly over people as long as the manufacturer says that the drone is compliant. All that the RPIC has to do is make sure that the proper category decal is in place.

That is an absurdly low bar.


There is no other mitigation. The FAA has not laid a foundation to address the true complexity of OOP.


My impression is that the FAA has overly relied on the 2016 ARC without considering all that has been learned since then or recognizing the need for a broader more holistic rule than may be customary. Because this rule is integral to all expanded operations, a rock solid foundation is essential.

In my Comment, I identify 9 issues that the NPRM needs to address, or address in much greater detail, then make a recommendation.

1) CURRENT INITIATIVES
This goes to the issue of timing.

What is the rush?

We know that this cannot go forward until there is a Remote ID Rule. A tremendous amount of very relevant information will become available over the next
12-18 months:

• UAS IPP – particularly having to do with local jurisdictions and permissions.
• ANPRM – particularly A. Stand Off Distances and E. Small UAS Critical System Design Requirements.
• UTM TLC4 – is specifically designed to test in the types of urban environments that many OOP flights will take place in.
• UTM Pilot Project (UPP) – is specifically designed to operationalize UTM.
• 2018 FAA Reauthorization – particularly SEC. 345 dealing with sUAS Safety Standards and self-certification, and SEC. 357 and 358 having to do with Privacy.
• Remote ID rule – safe to say a lot of unanswered questions and opportunities.

2) INSUFFICIENT DATA
According to the NPRM “Since part 107 took effect, the FAA has issued 9 waivers for operations over people and over 1,200 for operations at night.” (NOTE The current numbers are 24 and 2,400.)


The delta makes it clear that the FAA has been reluctant to issue OOP waivers.


Given the very specific nature of the waiver process, one can conclude that this is because few applicants have met the challenge of mitigating risks to the
FAA’s satisfaction.

So then, this is based on what?

Certainly not closed set operations.

3) PRIVACY
The problem of Privacy is inherent to operating over non-consenting people.


Saying that Privacy is “beyond the scope of the FAA’s mission” does not solve the problem, it just kicks the can down the runway.


To the extent that the FAA’s mission still includes integrating UAS into the NAS, success is contingent on public acceptance and the linchpin is privacy.

Don’t believe me? Take a look at the people who took the time to post their comments on the NPRM.

Congress definitely gets it because they are at the epicenter and know that Privacy is fast becoming a megatrend. The 2018 FAA Reauthorization ordered a full study of this in SEC 357 and 358 and the report ‘should’ be forthcoming this calendar year.

The recommendations must be reflected in the NPRM, even if it doesn’t fall to the FAA to enforce them.

4) LIABILITY
The FAA has again failed to build in the teeth they are going to need to enforce this or to protect the public.

In my opinion, the rule must mandate minimum insurance requirements for both the operator and the manufacturer. Operating over people under Part 107 is a business decision, carrying insurance is a cost of doing business.

Perhaps the liability requirement can be modeled after Part 205 Aircraft Accident Liability Insurance certificationsince the intent appears to be similar.

Parties who can’t afford the insurance, certainly can’t afford to make anyone whole. Ground them.


The entire idea rests on the manufacturer’s Declaration of Compliance. There must be a recognition of tort and an assumption of liability.


Further study is necessary to understand how a Declaration maps to SEC 345, Self-Certification. Are they the same, if not why and how are they different and
which applies?

To avoid any “hit and run,” to minimize detection and identification issues and to deconflict the airspace, I would propose that OOP only be allowed when the aircraft is logged in to a UTM system.

To accommodate lawyers and lawsuits, the period to maintain records should be extended to match the statute of limitations, more like seven years than two.

5) OPERATOR TRAINING
Every single injury caused by a drone has been to people on the ground. With the exception of Enrique Iglesias, most have been innocent bystanders. While these incidents don’t get the attention a ‘near miss’ does, the numbers continue to grow.


Mitigation must begin with a high level of pilot proficiency to ensure that no one gets hit in the first place.


The FAA is very candid that it “Lacks information and data to assess how much training or time piloting a particular aircraft is warranted.

There are many challenges that are specific to flying in urban areas that pilots must be aware of and trained for, such as loss of GPS, loss of C2 and various
wind effects.

There is no analog to this in the FAA’s experience. Simple comparison – the FAA understands exactly what additional training is necessary for Night Operations because it has dealt with the problem for decades.

6) ADDITIONAL EQUIPMENT
As in the example of Night Operations, consideration should be given to the need for additional markings visible from a distance including strobes and a loudspeaker.

This is not wartime. People should be able to see a drone in the vicinity so that they can choose to move away. And be warned if it is falling down.

7) CATEGORY 1
The NPRM never explains why this class should be unregulated. A 250gm sUAS falling from 200’ can cause significant injury. Consider limiting height to 50’AGL especially for these small, very vulnerable, frequently unstable aircraft.

Context. The DJI Spark and the even more diminutive Parrot Anafi are nowhere close to this weight limit. Why is Category 1 even here?

8) REPORTING
There is a fundamental fail in the concept and it has to do with data.

SEC 107.9 needs to be revisited to allow less discretion for reporting any incident involving OOP.

How else will the FAA monitor a heterogeneous national fleet to identify specific model “safety” defects?


Want a real headscratcher? Given the current registration system, how will the FAA contact the fleet to notify them of a ‘safety’ defect?


Their answer? Post it in the Federal Register. Seriously?

The burden must be put on the manufacturer who as a best practice maintain much better registration programs than the FAA has chosen to implement.

9) CONFLATION
It must have seemed like a good idea at the time, but as an industry advocate I think that it is unfortunate that the decision was made to conflate the Night Operations and the 107 rule changes (particularly the broader requirement to present identification) with OOP which is contingent on Remote ID becoming a rule.

Effectively this delays the first two which are ready to complete the
rulemaking process.

10) RECOMMENDATION
I recommend that OOP rule writing be delayed until the other initiatives mentioned in #1 are completed.

In the interim, the FAA should make a concerted effort to increase the number of waivers with the goal of gathering more data.


If more people can’t figure out how to satisfy the FAA, it’s definitely not time to give every 107 operator an EZ button…


Please take a minute to let the FAA know what you think and more importantly, what you want.

Here’s one for you – NASA Snaps Stunning Photos of Supersonic Aircraft. No way you are doing this with your drone =)

And if you want to catch some air, FPV baby.

Thanks for reading and for sharing. Back issues of Dronin’ On are here.

best,
ck

Christopher Korody
Editor and Publisher
chris@dronebusiness.center
follow me @dronewriter

 

 

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