It has been reported today that Raphael Pirker, who fought the FAA’s $10,000 fine alleging he flew his styrofoam “drone” in a careless and reckless manner, has settled with the FAA by paying a $1,100 fine.
Finding all the Section 333 petitions on the Regulations.gov website is too hard, so we wanted to make it easy for you.
Pasted below are the 333 petitions filed to-date. Please note that the 333 petition we filed today on behalf of a client isn’t viewable yet until it has been assigned the official docket number. We will update as soon as it becomes available. No warranties are made to the accuracy or completeness of these petitions. For the official versions go to Regulations.gov.
- AeroVironment,_Inc_-_Exemption_Rulemaking (1)
- Arctic Implementation Plan
- Douglas_Trudeau_-_Exemption_Rulemaking Petition
- Exemptions in Petitions Chart
- HeliVideo Productions- Exemption Application
- Likeonatree_Aerial_-_Exemption_Rulemaking (2)
- Newmont Mining Corp. Comment in Support of Trimble
- Ryan Eisenman- Exemption Rulemaking
- SenseFly_Ltd_Exemption Rulemaking Steven_Zeets_-_Exemption_Rulemaking
- VDOS_Global_LLC_-_Exemption_Rulemaking (3) VDOS_Global_LLC_-_Exemption_Rulemaking_-
- VDOS_Operations_Guide_-_GOM_Aeryon_Sky_Ranger (3) Vision_Services_Group,_LLC_-_Exemption_Rulemaking
- _VSG-Unmanned-SMS Wilbur-Ellis_Co_-_Exemption_Rulemaking
- Woolpert Exemption-Rulemaking 7-24-14
- Yamaha_Motor_Corporation_-_Exemption_Rulemaking (2)
If your company would like assistance filing its own Section 333 petition to the FAA to fly UAS commercially, contact firm principal Jeffrey Antonelli at 312-201-8310 or fill out the contact form below and we will contact you.
The Drone/UAS Practice Group at Antonelli Law exhibited last week at the Ohio UAS Conference held in Dayton, Ohio. I was personally impressed with the number of very interesting people who attended and exhibited there.
For example, one terrific conversation I had was with a gentleman who had worked on the Global Hawk, and who also reacquainted me with the work scientists were doing on dark matter and string theory. I was also impressed with the large number of active and retired military personnel who attended, which is fitting given that Dayton is a true center of aerospace industry and research, and a prime location given that Wright-Patterson Air Force Base is located there.
But I also met people who were on the leading edge of the civilian development of commercial drones (sUAS), like Dr. Andrew Shepherd, Director of the Unmanned Aerial Systems program at Sinclair Community College, which recently announced an affiliation with Ohio State for UAS data analytics and geospatial precision agriculture programs. The companies that are now broadening from purely Department of Defense contracting into the commercial market, and the startups that are beginning as commercial UAS providers from the outset, will both need workers with specialized training.
Excellent academic foundations with true partnerships and a path to industry jobs should benefit American workers. As was made abundantly clear at the Illinois Aerial Precision Ag Show this summer, big data is expected to overshadow the aircraft production in UAS. Programs tailored to educate American students now will help employers fill those data analyst jobs without having to resort to offshoring or expensive and unpatriotic over-reliance (my opinion) on HB-1 and other visa hiring programs.
Folks from the insurance world were present too, and assured me that numerous carriers were willing to underwrite UAS operators. That’s a crucial piece of the business case puzzle, because for all the media talk of Amazon and Google getting into the UAS game, it will more likely be the thousands of small and mid size players and wanna be players that will actually make this thing an industry. Getting into the high risk high reward UAS market without adequate insurance coverage is a non-starter.
As for the Drone/UAS Practice Group at Antonelli Law, we are looking forward to helping more clients with their FAA Section 333 petitions for exemption to fly commercial UAS. We published a newsletter recently about Section 333 which is available here, and are looking forward to helping shape the UAS industry response to the forthcoming FAA sUAS NPRM.
If you would like to contact the Drone/UAS Practice Group please call Jeffrey Antonelli at 312-201-8310 or fill out the following contact form and we will contact you promptly.
Would-be entrepreneurs and investors in small UAS (“drones”) were made more frustrated recently by two reports from the federal government involving FAA. Both relate to commercial use of airborne technologies. The first is an “interpretive rule” from FAA regarding model airplanes, and the second is a federal OIG report on FAA’s lack of progress integrating UAS into the national airspace (NAS).
The commercial drone community is rightly upset. A “green light” for light UAS with reasonable expedited rules now would release creative energy and entrepreneurship for a nation that is still struggling in a largely jobless recovery. Moreover, national privacy regulations on the use of drones both large and small may alleviate fears of drones obtaining personal data that many operators and the public at large alike have concerns about. We need guidance for safe operations and safe harbors, not what many see as administrative turf-building.
I. FAA Interpretive Rule addressing Special Rule for Model Aircraft
On June 18, 2014, FAA Administrator Michael Huerta released FAA’s Interpretive Rule regarding Section 336’s admonition that “the Administrator of the Federal Aviation Administration
may not promulgate any rule or regulation regarding a model
aircraft, or an aircraft being developed as a model aircraft” as long as several rules are followed.
This has caused quite a stir, including from the Academy of Model Aeronautics (AMA), the 77 year old nationwide community-based membership association which manages and oversees model aircraft activity in the United States. In a press release, AMA President Bob Brown stated: “The FAA interpretive rule effectively negates Congress’ intentions, and is contrary to the law. Section 336(a) of the Public Law states that, ‘the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft…’, this interpretive rule specifically addresses model aircraft, effectively establishes rules that model aircraft were not previously subject to and is in direct violation of the congressional mandate in the 2012 FAA reauthorization bill.”
While a plain reading of Section 336 would seem to make clear Congress’ intention that FAA keep a hands-off approach as to model airplanes – unless a model airplane is used in a manner to interfere with manned aircraft operations – this new FAA Interpretive Rule performs mental gymnastics to divine new authority to regulate model airplane activity anyway, as long as the regulation affects all aircraft in general and is not regulating model airplane activity only.
In a document stating AMA’s objections, AMA states “we believe the Interpretive Rule as a whole is in essence a backdoor approach to enacting new regulatory requirements without complying with the congressionally mandated Administrative Procedures Act.”
Instead of issuing clear rules or better yet exemptions, especially for very small unmanned aerial vehicles, the FAA has issued more confusing guidance that is likely to be ignored by many hobbyists and commercial operators. What the FAA needs to do is stop issuing confusing guidance and start issuing rules or exemptions .
What Can I Do?
The public is Invited to File Their Comments to FAA’s “Interpretive Rule. ” From the AMA:
There are four methods to submit a comment. Emailing your comment is the fastest and most convenient method. All comments must include the docket number FAA-2014-0396. Tips for submitting your comments.
1) Email: Go to http://www.regulations.gov. Follow the online instructions for sending your comments electronically.
2) Mail: Send Comments to Docket Operations, M-30; US Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.
3) Hand Delivery: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
4) Fax: (202) 493-2251.
DEADLINE TO COMMENT: On or before July 25, 2014
II. Federal OIG Finds FAA Far Behind UAS Integration
About a week after the FAA announced its new “interpretation” of the Special Rule for Model Aircraft, the Office of Inspector General released a report stating the FAA “is significantly behind schedule in meeting most of the UAS-related provisions of the FAA Modernization and Reform Act, including the August 2014 milestone for issuing a final rule on small UAS operations.”
For example, the OIG report states :
Although FAA established a UAS Integration Office, it has not clarified lines of reporting or established clear guidance for UAS regional inspectors on authorizing and overseeing UAS operations. Until FAA addresses these barriers, UAS integration will continue to move at a slow pace, and safety risks will remain.
III. One Unexpected Example of Creative Use of Drone Technology
An internet blogger, @fightcopyrightrolls alerted me to an amazing video of a drone being used for a “best seat in the house” view of fireworks – from the sky itself. Just as I did not fathom this use, there are many others whose work with drones and other robotics will bring enjoyment and commerce to a nation that can use more of both.
Recent news demonstrates Amazon CEO Jeff Bezos’ continued pursuit of using drones (UAS ) for package delivery. Today Politico ran a story that Amazon had hired DC firm Akin Gump to work on federal advocacy with regard to testing and operation of UAS. Amazon, with annual revenues in excess of 75 billion dollars, can afford to pay Akin Gump which charges up to more than $1,200 per billable hour for its top partners.
What can more modest companies and entrepreneurial individuals do for legal advice, whether they are a start-up or a commercial firm looking to enter the UAS market? Antonelli Law, with attorneys in DC, Virginia, New Jersey, and Chicago offers affordable legal advice and friendly, knowledgeable client relations.
The attorneys at Antonelli Law are genuinely interested in your work. Two of our attorneys fly themselves: Kate Fletcher is an active 737 pilot with the world’s largest airline, and Jeffrey Antonelli flies his DJI Phantom 2 Vision + drone as well as what used to be called radio control airplanes. Mark Del Bianco is CIPP/US-certified for privacy matters, and has the substantial experience of a big DC firm representing clients in federal administrative rulemaking and enforcement proceedings (or court reviews) at the DOJ, ITC, FCC, FDA, CPSC, and NHTSA. Mark has litigation experience ranging from state trial courts to case briefs in the U.S. Supreme Court, and in recent years has litigated the constitutionality of state laws at the intersection of technology and privacy.
We know early movers put in valuable hours into researching their products, building up a client base, and developing new commercial applications. We all will be dealing with legal uncertainties from the FAA for a long time to come, why not get to know an established law firm now that shares your interests and entrepreneurial drive?
Whether it is corporate work, privacy concerns, or you just want to get a handle on what the FAA is doing and what your company is allowed to do, you will feel comfortable calling a lawyer at Antonelli Law – and won’t fear a sky-high DC firm legal bill. Our billable rates don’t go higher than $350 per hour for our work and many services are far more affordable than that.
Contact Principal Jeffrey Antonelli for a free consultation at Jeffrey@Antonelli-Law.com or call 312-201-8310 to chat and get to know us. Our passion for leading and learning about UAS is second to none.[contact-form-7 404 "Not Found"]
Our law firm’s experience exhibiting at the 2014 AUVSI conference last week was a very positive one. As we had hoped, our attendance and personal meetings with folks from the insurance industry and FAA proved invaluable. Here are some of the take-home lessons for those wishing to profitably enter the commercial drone space.
Insurance Companies Want to See Your Safety Plan
The ability to demonstrate that you have your “stuff” together and are safety-minded will go a long way in getting insurance in the first place, and getting insurance at a price that will seem to be reasonable.
I was told first-hand what the insurance companies want to see (at least the major insurer I spoke with). The following are my impressions as to what you should consider showing when you apply for insurance for your drone/UAS operation. Note: this is not a fully comprehensive list. You should demonstrate that you:
- Personally walk the site before your time to fly and shoot.
- Plan a flight path away from large crowds and not directly above people and property that can be damaged by your drone.
- Ensure that neighboring property is not going to be an issue (in terms of risk to persons and property) if wind or equipment malfunction causes the drone to down off your intended flight path.
- Explain your pre-flight checks. This likely includes far more than just checking your battery leads are snug and Lipos are fully charged.
- Provide quality/historical information as to the manufacturer and model of the drone you are flying. If you made it yourself, your experience as a builder may be helpful if it is extensive and the known quality of the components may be helpful to note as well.
FAA May Allow Limited Small Drones/UAS in Industry Soon
The FAA had both a staffed exhibition booth and spoke at several of the panel discussions. One important announcement was an indication of the FAA’s willingness to expedite small drones (“UAS”) in several industries through Section 333 of the FAA Modernization and Reform Act of 2012. These industries were movie making, precision agriculture, oil and gas flare stack monitoring, and powerline inspections.
While we still await specific procedures, a notecard (embedded below) the FAA handed out stated that “UAS that can safely operate in a controlled, low-risk environment may be able to obtain authorization under Section 333.” This would allow some commercial use on a case-by-case basis before the awaited sUAS rules come out, which seems frustratingly behind schedule.
FAA Small UAS Proposed Rules Out in Late 2014 and Final Rules May Not Be in Place Before 2016
The presentation by Jim Williams of FAA indicated that the proposed rules for commercial small drone “Small UAS or sUAS” use will be published in late 2014, and the expected comment and final rule-making process would be 18 months long. In my personal opinion, this is far too long and must be expedited for safety and economic reasons.
Many operators have expressed their view that they believe it is legal to fly drones for commercial purposes, especially after the NTSB decision of FAA v. Pirker. FAA’s position is that since an appeal in Pirker has been filed, “nothing has changed.” While an appeal may clarify whether or not the FAA has had the authority it has claimed over small drones for a number of years, in my personal opinion what really matters is that we have new rules for small drone commercial use MUCH sooner than 18 to 22 months from now.
Publishing proposed rules may inform those operating commercially now of safety standards they may not have thought about, and money is currently on the sidelines awaiting “the green light.” AUVSI had a number of investors present, including institutional investors looking for the right opportunity. Our economy needs the small drone industry to take off with all the current potential it now has. Dithering (real or imagined) may cement the US in the non-leading position it is in now. Investment in US firms producing and operating small drones, in a responsible manner, will produce good jobs and entrepreneurial companies.
Antonelli Law will be exhibiting next week at the 2014 AUVSI Unmanned Systems Conference and Exhibition in Orlando, Florida. Our attorneys will be present at Booth 151 as we learn about the newest drone/UAS systems in the world, attend technical sessions, and hear featured speakers. With a commercial airline pilot and unmanned aircraft pilot as just two of the attorneys in our Drone/UAS Practice Group, we really are Lawyers Who Fly.
One of our most anticipated sessions will be featuring Jim Williams, manager of FAA’s UAS Integration Office. We know there are many companies and individuals who are waiting on the sidelines of commerce to launch drone-based services – a number of whom have already contacted our Drone/UAS Practice Group for guidance. We eagerly await word when FAA proposed regulations will come out, especially for “small” drones under 55 pounds, sometimes referred to as “sUAS.”
While we cannot possibly list all the technical and other sessions we will be attending, two are worth mentioning here: Drone Insurance and Sense and Avoid technology.
Companies cannot rationally operate without insuring against risk of liability, so Insurance: Supporting the Pathway to Commercialization is on the top of our list. In addition, GA-ASI Sense and Avoid System: Facilitating the Integration of UAS Into Civilian, Domestic and International Airspace looks promising as well.
Why Sense and Avoid? While trying to maintain control of your craft through line of sight is helped by experience, caution, and features like return-to-home guided by GPS, accidents do happen. I took out my new DJI Phantom Vision 2+ just last night, and to my surprise while hovering over a grove of trees (to locate a lost r/c airplane from last season) one of the props hit a treetop branch and down the Phantom went! Thankfully, all seems well including the wonderful new 3-axis gimbal. Sense and Avoid is a practical necessity, indeed.
If you are attending AUVSI this year, please stop by Booth 151, meet us, and learn about the Drone/UAS Practice Group at Antonelli Law. We represent clients across the country and are deeply experienced in aviation, federal administrative law, litigation, and technology law.
We are Lawyers Who Fly.
Yesterday, March 6 2014, the National Transportation Safety Board (NTSB) granted respondent Raphael Pirker’s motion to dismiss the FAA’s civil fine against him, stating the FAA policy since 2007 banning commercial use of drones in the U.S. has not had the force of law. Pirker had been fined $10,000 for using his 56 inch foam model airplane on the University of Virginia campus to obtain aerial video footage in exchange for compensation.
In the FAA Complaint, FAA alleged Respondent Pirker’s model aircraft was an Umanned Aircraft System and an “aircraft.” Thus, FAA argued, Pirker was subject to FAA Part 91 Section 91.13 (a)’s prohibition: “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another”; FAA Part 21.171 et seq requiring airworthiness certificates; and FAA Part 47 Section 47.3 requiring registration with FAA before flying.
However, the NTSB administrative law judge looked at several of FAA’s previous writings, the statutory regulation of Ultralights, and the language of the FAA Modernization Re-authorization and Reform Act of 2012 to come to the conclusion that FAA did not have the legal authority it asserted it had against Pirker. These writings undercut FAA’s arguments that Pirker’s model airplane could be considered an “aircraft” and thus be subject to the regulations it had alleged Pirker violated.
First, the judge cited FAA’s 1981 Advisory Circular 91-57 (“AC 91-57”) which addresses model aircraft. AC 91-57 requests voluntary compliance stating: “Do not fly model aircraft higher than 400 feet above the surface” and advises against flying at sites near “noise sensitive areas such as parks, schools, hospitals, churches, etc.”; and advises staying away from spectators until the aircraft has been proven airworthy.
Second, the judge looked to FAA Part 103 which addresses ultralight flying vehicles. The judge found here that ultralights are not designated “aircraft” and subject to FAA Part 91. Part 103 defines an ultralight vehicle as “a vehicle that: (a) Is used or intended to be used for manned operation in the air by a single occupant; (b) Is used or intended to be used for recreation or sport purposes only;(c) Does not have any U.S. or foreign airworthiness certificate” and if powered, is less than 254 pounds empty weight, or if unpowered, is less than 155 pounds. Since an ultralight is not considered an “aircraft” then maybe a model airplane (small drone) is not one, either.
Third, the judge looked at FAA’s 2007 Notice 07-01 which specifies that a UAS (Unmanned Aircraft System) must have an airworthiness certificate. The judge found this was a policy statement without the force of law. Notice 07-01 failed to be issued “as a Notice of Proposed Rulemaking (NPRM) and if intended to establish a substantive rule, it did not satisfy the requirements of 5 U.S.C. Section 553 (d), which requires publication of notice not less than 30 days before the effective date.”
Finally, the judge cited the FAA Modernization Re-authorization and Reform Act of 2012 as instructive as well. It believed that because the Act called for the issuance of a rule to be issued regarding regulating model aircraft, Congress did not believe any rule existed regulating model aircraft.
This NTSB opinion may be somewhat embarrassing for the FAA, coming on the heels of FAA’s February 26th publication Busting Myths about the FAA and Unmanned Aircraft wherein it states: “Anyone who wants to fly an aircraft—manned or unmanned—in U.S. airspace needs some level of FAA approval.” The Pirker opinion clearly states that the definitions of “aircraft” found in either Part 1, Section 1.1 or 49 U.S.C. Section 40102 (a)(6)’s definitions of aircraft do not apply to model airplanes like Pirker’s 56 inch wingspan RiteWing Zephyr (presumably a “small drone”). And, model aircraft are only subject to the voluntary compliance of the FAA’s 1981 safety guidelines found in AC 91-57.
The Pirker opinion is an excellent example of how legal advocacy can successfully challenge even a behemoth like FAA. Lawyers like Raphael Pirkman’s Brendan Schulman may uncover mistakes in an aggressive party’s legal position, sometimes revealing that the emperor has no clothes.
The FAA’s next move may be an appeal of this NTSB decision. While some commentators have begun rejoicing that the skies are now open for business for commercial drone use (for profit) as a result of this opinion, it would be wise for operators to act with caution. Even United States Supreme Court justices disagree with each other, and it is possible that the Pirker decision is not the last word on the ability of FAA to issue fines.
Hopefully, we will see relatively soon the new regulations for “small drones” in the under 55 pound category in 2014. This will finally give much needed clarity for when, and how, small drone operators may conduct business in the United States. Until then, tread lightly and responsibly.
Disclaimer: As always, the writings in DroneLawsBlog.com are not legal advice, and you should seek competent legal advice specific to your particular facts. No attorney-client relationship is formed between readers of DroneLawsBlog.com and Antonelli Law unless you and the firm agree upon and sign an attorney agreement or similar letter agreement.
I recently asked my research assistant David Heath to help get me up to speed on the various Sense and Avoid (SAA) technologies available for drone/UAV use (I’m still working on whether to just use the word “drone” from now on). David gave me some information on the BAE Systems’ AD/DPX-7 Identification Friend-or-Foe (IFF) transponder with Automatic Dependent Surveillance – Broadcast (ADS-B) receiver; the GA-ASI-developed Due Regard Radar (DRR); and Honeywell’s TPA-100 Traffic Collision Avoidance System or TCAS.
A few days later, I was discussing with attorney and pilot Kate Fletcher about an article we recently read about drones getting too close to commercial aircraft’s airspace. Clearly, nobody wants drones to interfere with the safe operation of full scale aircraft! We discussed a bit about the systems in place for aircraft to aircraft avoidance. It then occurred to me that what is needed is a technology that prevents a drone from being operated into the path of an airplane. In other words, no matter what the input of the drone operator, even if they tried to get a drone into prohibited airspace, it just would not work. Likewise, no autonomous drones would be permitted into the impending path, no matter the GPS way points inputted.
I have no idea if this is already being worked on, and it does make me recall the criticisms of President Clinton calling for a “V chip” in televisions to restrict children from viewing inappropriate programming -the technology apparently did not exist at the time it was required by law to be put in place in the future. However, if the drone/UAV industry were to soon demonstrate this technology is bulletproof, just maybe it will help speed up FAA regulations permitting commercial use of drones.
What do you think? Is this already being worked on? Please let us know in the comments.
Antonelli Law focuses on business and individual intellectual property technology issues, including internet copyright infringement, and the use and manufacturing of civilian drones. The firm’s Principal, Jeffrey Antonelli, began flying radio controlled airplanes several years ago which lead him to research new technologies including first person viewing (FPV) and drones. Drones are also called unmanned aerial vehicles (UAVs) or unmanned aircraft systems (UASs).
Our Drone Law legal practice began in January 2014. We began by researching the current state of both FAA and state laws. We then hired an engineering student as a research assistant to help us genuinely understand the technological challenges facing our future clients.
In February 2014 we added attorney Kate Fletcher as Of Counsel to the firm. In addition to her law practice, Kate is a 737 pilot with American Airlines. Kate has over 10,000 hours of flight experience and is Type-Rated in the Saab 340, Citation CE-500, DC-9, Boeing 737, 757, and 767. Kate’s flying experience is varied and includes traffic watch in the San Francisco Bay Area, Air Ambulance, Flight Instructing and Communter and Major Airline Domestic and International flying. Kate brings a wealth of knowledge in aviation to the practice of law.
We look forward to serving future clients involved in the manufacture and use of drones at Antonelli Law, and will use this DroneLawsBlog.com to share news, insights, and updates to the swiftly changing state of the law and the Drone Law practice of the firm.
This video clearly shows the ability to provide a true bird’s eye view of an entire operation. With a drone/UAV, the operator can obtain updated data of a constantly changing site, such as this mining operation.