United States: Update On FAA UAS Integration Efforts

Jennifer M. "Jenn" Nowak is an Associate in our Washington DC office.

Over the past few weeks, there have been several meaningful developments in the Federal Aviation Administration's (FAA) regulation of unmanned aerial system (UAS) activity in the national airspace.

House Hearing on UAS Airspace Safety

On October 7, the U.S. House of Representatives Committee on Transportation and Infrastructure, Subcommittee on Aviation held a hearing to address aviation safety issues in the face of increased UAS use in U.S. airspace. The purpose of the hearing was to address challenges posed by the presence of an increasing number of UAS in the U.S. airspace, including an increased number of sightings of drones near airports – 600 so far in 2015, up from 238 in 2014 – and UAS incursions in the airspace around and over wildfires that interfere with firefighting efforts.

Michael Whitaker, FAA's Deputy Administrator, stressed the difficulties resulting from its lack of authority to regulate recreational UAS users, but indicated efforts are underway to address these challenges, including public education campaigns, penalties against commercial users and research efforts to develop technology to detect UAS operating within five miles of an airport.

In response to members' criticism over the delay of the small UAS final rule, Mr. Whitaker announced that the FAA expects to pass a final version of the small UAS rule to the Department of Transportation and the Office of Management and Budget by the end of 2015, and publish a final rule in the first half of 2016.

Expanded Pathfinder Efforts

As mentioned in the Aviation Subcommittee Hearing, the FAA announced the same day that it had entered into a Pathfinder Agreement with CACI International, Inc. to assess the safety and security of CACI's UAS detection technology to identify UAS and their ground-based operators  flying within a five-mile radius of airports. CACI's prototype UAS sensor detection system will be evaluated for effectiveness at airports selected by the FAA.

This effort is part of the UAS Pathfinder Program, which the FAA created in May 2015 in order to work with industry to research the expanded use of UAS beyond the operations addressed in the small UAS proposed rule, specifically focusing on visual line-of-sight operations in urban areas, extended visual line-of-sight operations in rural areas, and beyond visual line-of-sight operations in rural/isolated areas.  

For more information, see FAA Press Release.

$1.9 Million Penalty for Unauthorized UAS Operations

The FAA also recently ramped up enforcement efforts against UAS operators, announcing the largest civil penalty the FAA has proposed to assess against a UAS operator. The FAA proposes to assess a $1.9 million penalty against SkyPan International, Inc., a Chicago company that the FAA accuses of endangering the safety of U.S. airspace. The FAA indicates that SkyPan operated 65 unauthorized commercial UAS flights between 2012 and 2014, including operations in congested airspace and over heavily populated cities. The FAA alleges that 43 of these flights, which were conducted to collect aerial photography, flew in highly restricted Class B New York airspace without receiving air traffic control clearance.  

For more information, see FAA Press Release.

FAA UAS Registration Initiative

As a condition of receiving a Section 333 exemption from the FAA to conduct commercial UAS operations, companies must register their UAS with the FAA. Currently, these UAS and others operated with FAA permission, such as UAS used at FAA test sites and as part of the Pathfinder Program, are registered through the same registration system as manned aircraft. This week, the FAA announced the creation of a task force to develop recommendations for a registration process specific to UAS, which would also apply to recreational UAS operators. 

The FAA states that historically, it has exercised enforcement discretion by not requiring model aircraft to be registered under the aircraft registration system. However, given the increased sightings of unsafe and illegal UAS operations, such as those within 5 miles of an airport, the FAA has decided to bolster its efforts to identify individuals or entities responsible for unsafe UAS use. As the current, paper-based aircraft registration system was not designed for registering UAS, the FAA is evaluating options for developing a streamlined electronic registration system for small UAS that would be less burdensome for small UAS operators.

The task force is to meet with the FAA and provide recommendations regarding whether FAA should continue its enforcement discretion for recreational small UAS, or require users of small UAS to register, as well as recommendations for implementation of a registration system for UAS. 

The FAA has published a request for information to assist the task force with addressing key issues. Comments must be submitted by November 6, 2015. Topics the FAA requests commenters to address include:

  • When should registration occur (e.g., point-of-sale or prior to operation)?
  • Who should be responsible for registration? How should change of ownership be addressed?
  • Should certain UAS be excluded from registration requirements based on characteristics that make them less risky to the national airspace, such as weight, speed and operating limitations?
  • Should a registration fee be collected?
  • Are there alternatives to registration that would accomplish the same goal of accountability and responsible use of small UAS?

The FAA's request for information can be found here.

On a Side Note: Back to the Future II Predicted Newsgathering by UAS

As part of its special "Back to the Future" edition published October 22, USA Today included an article on the 1989 movie's prediction that newsgathering would be conducted by drone by October 2015. USA Today interviewed Holland & Knight drone team attorney, Joel Roberson, about the current use of media drones and what to expect over the next year given the firm's efforts to assist media clients in operating small UAS exactly for such purposes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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