The Federal Aviation Administration (FAA) is doing its best to meet the legislative mandate to integrate unmanned aircraft systems (UAS) into the national airspace system (NAS) roughly within the 2015 deadline imposed by the FAA Modernization and Reform Act of 2012. At this point, it is anticipated that proposed rules governing small UAS (sUAS) will not be released for notice and comment until late 2014 or early 2015.
1. Your 14-year-old child can use his or her small Sharper Image quadcopter ‘toy’ around your yard and neighborhood to record aerial video and photos.
2. Your engineer neighbor can build a scaled-down model of a B-52 bomber and fly it around a neighborhood park.
3. Your local police and fire department can use an unmanned aircraft over public lands to survey crowds or to spot forest fires.
4. Your alma mater can operate an unmanned aircraft to research animal migrations or tidal activity.
5. A real estate agent cannot use an unmanned aircraft (the same quadcopter from Sharper Image) to capture images to support the listing and sale of a large property.
6. A movie crew cannot use an unmanned aircraft to film aerial action scenes.
7. A farmer cannot use an unmanned aircraft to survey crop conditions on his own farm.
The distinction between permitted uses (examples 1 through 4) and prohibited uses (5 through 7) is that, by virtue of their usage and not their size or configuration, unmanned aircraft used as described in items 5, 6, and 7 are ‘civil aircraft’ and fully subject to FAA oversight. Items 1 and 2 fall under a long-standing hobbyist exception that was affirmed by the FAA Modernization and Reform Act. And items 3 and 4 are, by virtue of their usage, ‘public aircraft’ (defined below) that fall outside the FAA's technical oversight.
While we wait (possibly two years) for the FAA sUAS rulemaking to reconcile these inconsistencies, there are several ‘no brainer’ commercial imaging uses of small UAS that are being prevented by existing law. In many cases, the UAS would replace a manned aircraft, greatly increasing public safety and reducing costs and environmental impacts. So, why are these few no-brainer uses so difficult to implement; and is there a path to fast-track implementation?
The starting point is the FAA's view that a device that flies above the ground is an aircraft. The Federal Aviation Regulations define an aircraft as ‘a device that is used or intended to be used for flight in the air.’ Unless exceptions apply, the aircraft needs to be certified by the FAA, the operator needs to satisfy FAA requirements to operate the aircraft and the aircraft needs to obey the ‘rules of the road’ applicable to aircraft in U.S. airspace.
So, unless you establish otherwise, your quadcopter needs to satisfy the same airworthiness standards as an Airbus A380, and the operator needs to be a private pilot.
The FAA's first role is to ensure the safety of operations in the NAS. It fulfills that mission by certifying virtually all of the aircraft over our heads (and those we ride in), and by ensuring that the people who repair, maintain and operate aircraft meet standards of expertise and health.
The FAA's second (but equally important) role is that of service provider – preserving and enhancing the efficiency of the NAS. The NAS is a huge but limited resource, and order is necessary for efficiency and safety. All aircraft, civil or public, utilize the NAS, and the FAA has authority over all such operations.
The deployment of unmanned aircraft reveals the two-pronged role of the FAA. If it is a civil aircraft, the FAA requires that the aircraft itself and the operator satisfy certification and licensing standards applicable to civil aircraft. If it is a public aircraft, then the FAA focuses solely on the interaction of the aircraft (operations) in the NAS.
Federal Aviation Regulations divide all aircraft into two categories: civil and public. A civil aircraft is defined as one that is not public. A public aircraft is defined in the U.S. Code as an aircraft owned and operated by the federal government or the government of a U.S. state, the District of Columbia, or a territory, possession or political subdivision.
The underlying principle is that there is a government authority other than the FAA assuming responsibility for the equipment and operator, so the FAA will stand aside as to that aspect of the aircraft. The FAA retains jurisdiction over that aircraft's use of the NAS. The concept of public aircraft predates UAS by many decades and covers military and governmental missions, as well as certain operations of aircraft by state instrumentalities.
To date, the FAA has approved hundreds of UAS applications by granting certificates of authority (COAs), premised on the ‘public aircraft’ exception. The COAs are issued to state and federal instrumentalities often for testing or public-safety uses. The public aircraft exception has allowed the FAA to focus solely on the usage and disregard the equipment and operations.
The FAA does not, at this point, consider any commercial use of a UAS as eligible to receive a COA. For the reasons stated below, we feel this is an overly restrictive position.
There is nothing in the statute requiring the public aircraft operation to be non-commercial. However, the implementing Federal Aviation Regulations expand the definition of public aircraft to require that the aircraft is ‘not being used for a commercial purpose or to carry persons other than crew or a 'qualified non-crewmember.'’ The public aircraft regulations define ‘commercial purpose’ as ‘the transportation of persons or property for compensation or hire.’
Even if you accept as valid the FAA's addition of a ‘commercial purposes’ disqualifier, an unmanned aircraft's collection of images still appears to be non-commercial under the FAA's regulations. A UAS capturing images is transporting nothing, so by the FAA's own definition, it is not being operated for commercial purposes.
If this is true, then:
- A state police force could use a UAS for event control and surveillance, and sell the data feed to local news stations.
- A county government could employ a UAS in support of real estate sales and allow the local real estate agents to charter it for aerial views of properties for sale or lease.
- A farming town could own and operate a UAS and charter it to farmers to survey crops.
- A state economic development authority could own and operate a UAS fleet and make it available to production companies in order to promote movie and television production in the state and reduce the need for noisy, dangerous manned aircraft.
All of these uses would be subject to FAA operational restraints under a COA, but that operating authority would only apply if the FAA agreed that the use was not a commercial purpose.
Whether by coincidence or regulatory assertiveness, the FAA recently issued an interpretation that questions this public aircraft/commercial use loophole. On Feb. 12, the FAA issued an Advisory Circular (AC 001-01.1A), ‘Public Aircraft Operations,’ that states that for purposes of distinguishing between a civil aircraft operation and a public aircraft operation (PAO):
‘In general, the FAA interprets the commercial purpose prohibition in 49 U.S.C. section 40125(a)(1) to mean that there can be no type of reimbursement to government entities for PAO, except under the one set of specific circumstances described in that section.’
The FAA simply expanded the term ‘commercial’ from ‘transportation of persons or property for compensation or hire’ to cover any situation where there is reimbursement to the government.
This expansion is presented without explanation or justification – you might say this new standard comes out of thin air. Yet, it seems to hit non-transportation commerce (including image collection) head-on.
Why would the FAA expand this definition? How could the collection of funds by the operating government degrade the safety of the operation?
An FAA Advisory Circular is an interpretation by the FAA, and it is not a statute or a regulation. As such, it is certainly open to FAA reconsideration or challenge. In fact, the language following the above quote states that:
‘Specific instances of whether an operation has a commercial purpose may be submitted for interpretation to the FAA Office of the Chief Counsel, International Law, Legislation, and Regulations Division.’
The existence of AC 00-1.1A means that the FAA likely would not approve of a federal or state agency owning and operating a UAS for the benefit of a non-transportation business (media, farming or real estate, for example.) It seems beyond coincidence that this interpretation would be issued in the midst of the sUAS rulemaking and the national frenzy over UAS. Media and other industries having immediate needs for lawful UAS usage should, and likely will, seek FAA reconsideration of this interpretation.
Gregory P. Cirillo is a partner at law firm Wiley Rein LLP. He has a multinational practice in aviation transactions, including aircraft acquisitions and related contracts, equipment finance, and Federal Aviation Administration/Department of Transportation regulatory compliance. Cirillo can be reached at email@example.com.