by Rex Hammarback
Northland Aerospace Foundation
Drones are beautiful. Any comments to the contrary are duly noted, however, the huge positive impact these airborne creatures will have on our future will be as broad as any technological revolution we have experienced. The initial regulatory delays appear to be moving towards a disciplined resolution with the release of the FAA’s Notice of Proposed Rule Making (NPRM) for Unmanned Aircraft Systems (UAS) on February 23, 2015. The small UAS world will begin to move very rapidly from this stage going forward.
If you think about it, we have had a very sophisticated small UAS operating in our airspace for many years. Today, the radio control (RC) modelers of the world are flying jet engine propelled UAS and have been doing so for several years now. Take a walk on the “wow” side of life and go to “you tube” and search for RC jet aircraft. You will be amazed.
Today’s article will explore and discuss the current legal status of drones (UAS) and a glimpse at what that future will look like. We will specifically look at commercial operations and the leadership role of Northland Aerospace as it develops programs to support these activities. We will start with a brief discussion of the legal factors involving RC models. RC models were always limited to a maximum altitude of 400 feet about ground level. In addition, RC models were always required to be within “line of sight” of the operator.
One of the key distinguishing legal limitations for the RC modeler was the restriction that all operations not be commercial in nature. In other words, you could not conduct flight operations for hire; no commercial activities were allowed.
The RC modelers have enjoyed many years of operation without major issues and/or problems. The RC modelers, by FAA’s own previous conduct, were not technically identified as aircraft, therefore, the FAA had “carved out” an exception to the FARs for the RC modelers. This exception created by the FAA for modelers came back to haunt the administrative agency.
In an administrative law decision issued on March 6, 2014, Federal Administrative Law Judge Patrick G. Geraghty vacated an FAA Order of Assessment against a small UAS operator, Raphael Pirker. The fine ordered against Mr. Pirker for the alleged violation of federal aviation regulations was $10,000.00. The fine was a civil penalty based upon an alleged violation of FARs, specifically 14 CFR §91.13(a). Most of the aviators in our aviation community recognize this alleged violation as the “careless and reckless” prohibition. Careless and reckless allegations have a long and storied history in aviation administrative law cases.
What did Mr. Pirker allegedly do wrong? Mr. Pirker operated an unmanned aircraft on a photographic mission for hire over the campus of the University of Virginia.
The following allegations made up a partial list of alleged careless and reckless acts:
• The altitudes for the flight varied form 10 feet AGL to 1,500 feet AGL (one wonders how this allegation can be proven with no encoding transponder).
• The Ritewing Zephyr was flown directly at someone who was forced to move out of the way for his safety (Direct testimony would prove this allegation, and if believed, could be grounds for a violation).
• The UAS was operated below treetop level over a sidewalk. (This can be proven by direct testimony and could be grounds for a violation).
• The UAS was also alleged to have been operated within 100 feet of an active heliport. (This creates a distance allegation, which could only be proven by direct testimony of a credible witness.)
• There were other allegations, but the final most relevant allegation was that the flight was conducted “for hire.”
What happened to Mr. Pirker? The Administrative law judge dismissed the case stating that the UAS, first of all, was a “model aircraft,” which meant that it was not a real aircraft because the FAA in its model aircraft Advisory Circular issued in 1981 (AC 91-57, June 9, 1981), treated model aircraft as if they were not real aircraft under the FARs, and therefore, FAR 91.13(a) did not apply.
The administrative law judge went so far as to say that a paper airplane presumably launched into the airspace by anyone would subject the operator of the paper airplane to the regulatory provisions of FAR Part 91, which was not the intention of the regulatory agency.
The FAA appealed the administrative law judge’s decision to the National Transportation Safety Board (NTSB). NTSB rendered its decision on November 17, 2014, and specifically found that the UAS operated by Pirker was an “aircraft,” which the FAA then could prohibit the “operator” from “careless and/or reckless” operation.
The NTSB decision goes on to explain why unmanned aircraft specifically fall under the FARs, and why specifically 91.13 (a) would apply to unmanned operations. The NTSB decision concludes by stating that an “aircraft is any device used for flight in the air.” It further states, “[t]his definition includes any aircraft, manned or unmanned, large or small.” “The prohibition of careless and reckless operation in 91.13(a) applies with respect to the operation of any aircraft, other than those subject to parts 101 and 103.”
We now have what the legal community would call “precedent.” That legal precedent clearly states that a UAS/drone is to be considered an “aircraft” under the FARs. NTSB then sent the case back to the administrative law judge to determine whether the operation of the drone by Mr. Pirker was indeed “careless and reckless” under FAR 91.13(a).
Just recently, Mr. Pirker settled his case with the FAA for a payment of $1,100.00, which was conditioned specifically upon no admission of liability or wrongdoing, but paid merely to “buy his peace” and be left alone.
During the pendency of the Pirker decisions, small UAS operations began to specifically move ahead under three legal areas:
First, the FAA designated six test sites throughout the United States, one of which is located in North Dakota. These UAS test sites can operate UAS under certain parameters and guidelines for R+D purposes. The UAS operations at a test site cannot be for hire or for commercial purposes.
Second, the FAA allows public entities (universities, colleges, etc.) to apply for the operation of UAS for R+D purposes through Certificates of Authorization (COAs). These operations must be conducted for hire or commercial purposes.
Third, the FAA has allowed for the start of commercial operations by private entities under Section 333 exemptions. The motion picture industry was the first group of businesses to apply for Sections 333 exemptions, which were granted.
Northland Aerospace applied for it first Certificate of Authorization in September of 2013. The COA was approved by the FAA as applied for in April of 2014. The airspace involved in the Northland COA was all of Roseau County in northern Minnesota. The purpose of the COA was to conduct agricultural imagery research involving various grass varieties planted and grown in northern Minnesota for the turf industry. Northland Aerospace’s early application for a COA and the successful operation of that COA highlights its leadership role in small, unmanned aircraft systems development and operations throughout the small UAS industry.
Today, Northland Aerospace is working on additional COAs throughout Minnesota. Northland Aerospace has also begun work on several Section 333 exemptions with industry partners for the launch of nascent commercial operations. Northland Aerospace has shown tremendous vision and innovation in the rapidly growing industry of unmanned aircraft systems. Northland’s future UAS training/education, research and airspace activities will create a great benefit for its students, stakeholders and industry partners by increasing access to cutting edge UAS learning and field operations. The knowledge gained by these early UAS leadership efforts by Northland Aerospace will benefit precision agriculture, forestry, energy, water management and other public service-related needs.
Northland Aerospace invites UAS technology businesses, developers and researchers to explore new collaborative efforts in the rapidly changing UAS regulatory environment. Northland’s early successful experiences in that regulatory environment will allow it to continue to lead in all areas of UAS maintenance, imagery analysis and operations in this fascinating world of new airborne creatures. Drones are beautiful.
EDITOR’S NOTE: Northland Aerospace is a collaborative partnership between Northland Community and Technical College (NCTC) of Thief River Falls, Minnesota and the Northland Aerospace Foundation (NAF) of East Grand Forks, Minnesota. NCTC is the educator and NAF helps it operate “at the speed of business.”