Drone Drain: How the Faa Can Avoid Draining (and Instead Spur) the American Drone Industry by Adding Nuance to Its Draft Small Uas Rules

• Citation: Vol. 10 No. 4
• Publication year: 2015

Washington Journal of Law, Technology and Arts Volume 10, Issue 4 Spring 2015

Drone Drain: How the FAA Can Avoid Draining (and Instead Spur) the American Drone Industry by Adding Nuance to Its Draft Small UAS Rules

Brooks Lindsay (fn*)

Abstract

The Federal Aviation Administration has done much right in the past few months with its draft small UAS rules, but should add nuance to the draft to avoid draining America's nascent drone industry. This Article, which was submitted as an official comment to the FAA by the University of Washington's world-renowned College of Engineering, recommends five essential modifications to enable American competitiveness in this field. First, the FAA should maintain the line-of-sight requirement as a baseline, but allow uses beyond line-of-sight for pilots and aircraft certified to fly with First-Person View or autonomous technology. Second, the FAA should create exceptions to the largely sensible 500-feet ceiling for Small UAS flight, particularly in areas with few low-flying passenger aircraft, and adopt a licensing and certification process for advanced pilots and drones to fly above 500 feet. Third, the FAA should adopt proposed, more relaxed rules for Micro UAS weighing less than 4.4 pounds because different drones present different risks and so should be regulated differently. Fourth, the FAA should adopt an enabling philosophy toward drones, acknowledging that their immense economic potential justifies taking manageable safety risks. Fifth, the FAA should actively grant exemptions to the civil ban in the interim of permanent rules, testing drones in society and allowing the FAA to hone the draft rules before they are made permanent in 2017. If the FAA implements these recommendations, it will provide America's emerging drone industry the breathing room to innovative, grow, and compete on the global stage.

TABLE OF CONTENTS

Introduction .................................................................................. 344

I. Keep the Line-of-Sight Requirement as a Baseline, but Allow Certified Drones and Pilots to Fly Beyond ........................... 346

A. Commercial Benefits and Emerging Technology ............ 346

B. Field-of-View Concerns and Solutions ............................ 347

II. Keep the 500-Feet Limit as a Baseline but Allow Certified Drones and Pilots to Fly Above It ........................................ 349

A. 500-Feet Limit on Drone Flight ....................................... 349

B. Proposed Exceptions to the 500-Feet Limit ..................... 351

III. Adopt the Proposed Micro UAS Category-Regulate Different Drones and Risks Differently ................................ 352

A. Micro UAS Copter Classification .................................... 352

B. Small UAS Copter Classification .................................... 354

C. Fixed-Wing Drone Classification .................................... 355

IV. Adopt an Enabling Philosophy Toward Drones Based on Their Great Economic Promise and Tolerable Risks ..................... 356

V. Actively Grant Exemptions to the Interim Ban in Order to Inform and Improve the Draft Rules .................................... 357

Conclusion ................................................................................... 358

INTRODUCTION

Facing the fast-paced development of unmanned aerial systems (UAS) technology, Congress passed the Federal Aviation Administration Modernization and Reform Act of 2012 (FMRA) to require the FAA to integrate UAS into domestic airspace by September 30, 2015.(fn1) The FAA has been slow to act though; it appears that permanent rules will not be forthcoming until 2017, at the earliest.(fn2) Meanwhile, the interim ban on non-recreational, civil drone flights will remain in effect, disadvantaging the United States' drone industry against global competition.(fn3) While the FAA submitted more moderate draft rules than many feared, it has a responsibility to listen to the voices of its constituents, improve its draft, and fully enable research and commercial applications in this field.(fn4)

The current draft small UAS rules do not fully enable American drone research and commercialization. To summarize, the draft rules require that non-recreational, civil Small UAS must stay within "line of sight" of the operator; remain under 500 feet; weigh less than 55 pounds, inclusive of any payload; not exceed 100 miles per hour; not fly over people or populated areas, unless a Micro UAS (under 4.4 pounds); only fly in daylight and conditions with 3-mile visibility; and not fly in class A airspace and get permission for class B, C, D, and E airspace. In addition, operators must pass a knowledge test at an FAA-approved center; obtain a UAS operator certificate; make drones available for testing upon request; report accidents causing injury or damage within ten days; keep their UAS in safe condition and inspect pre-flight; register their UAS with the FAA; and mark their UAS for identification.(fn5)

Most of these draft rules are sensible and encouraging, which is why the public reaction has generally been welcoming (the Association for Unmanned Vehicle Systems even called them a "good first step"(fn6)). Yet, these rules will still prove over-burdensome in relation to the risks. They will needlessly constrain many of the operations of researchers like those at University of Washington and at companies like Amazon. The FAA should, therefore, soften its draft Small UAS Rules in the five ways discussed below.

I. KEEP THE LINE-OF-SIGHT REQUIREMENT AS A BASELINE, BUT ALLOW CERTIFIED DRONES AND PILOTS TO FLY BEYOND

The FAA should not require that all civil drone operators keep their drones within line of sight while flying. While this may be a sensible baseline requirement, the FAA should allow drones to fly outside of line of sight if pilots and drones are certified to operate with First-Person View (FPV) technology or autonomous onboard Visual and Inertial (VI) sensing technology. These technologies can provide a level of situational awareness similar to that of a manned aircraft operating in similar conditions.

A. Commercial Benefits and Emerging Technology

The FAA must understand that many (if not most) of the commercial and scientific benefits of drone flight will be achieved outside of the operator's direct line of sight. Such uses include surveying crops, pipelines, oceans, and forests, as well as delivering products and medical supplies, performing dangerous jobs, and providing emergency services like search and rescue. The benefits to farming, in particular, are immense. The Association for Unmanned Vehicle Systems International estimates drones will contribute more than $75 billion to the U.S. agriculture industry in the first decade of its commercial use.(fn7) The line-of-sight requirement would cut off a substantial portion of these benefits. To do so without a compelling safety rationale would be an overstep, particularly when existing and emerging technologies are capable of adequately minimizing the risks.

FPV goggles are highly advanced today. The best versions can give an operator a high-definition, 140-degree, real-time view from a drone.(fn8) This technology can enable exceptionally accurate flying with both copters and fixed-wing UAS.(fn9) Companies such as FatShark and SkyZone sell high-quality FPV goggles and drone camera systems around the world at a relatively low cost of $300- $500.(fn10) This already advanced technology is evolving rapidly. The technology behind immersive virtual reality headsets such as Facebook's Oculus and Microsoft's HoloLens will converge with drone FPV technology to greatly improve the safety of navigation.(fn11)

B. Field-of-View Concerns and Solutions

One of the FAA's concerns with FPV...