To Federal Aviation Administration (FAA) officials, aerial videographer Raphael “Trappy” Pirker was a scofflaw with a 2.27kg (5lb) Ritewing Zephyr II glider and a mounted GoPro camera.
He flew his powered glider too close to people and buildings, the FAA charged: he flouted a ban on using drones for commercial activity. But when the FAA fined him $10,000 for an aerial shoot on behalf of the University of Virginia’s medical school in October 2011 (a shoot for which he was compensated), things did not go as expected for the regulatory body.
Pirker’s legal team challenged the penalty. And this March, a National Transportation Safety Board (NTSB) judge dismissed the case against him, challenging the FAA authority’s to restrict the flight of unmanned aerial vehicles (UAVs) in national airspace.
Administrative law judge Patrick Geraghty argued that internal FAA guidelines for UAVs could not count as enforceable regulation. He likewise took issue with the FAA’s expansive use of the word “aircraft.” If any contrivance that flies is an aircraft and subject to regulation, then why not also a paper airplane, Geraghty asked.
Brendan Schulman, the attorney who represents Pirker, believes that, at its core, the case against his client was always about commercial UAV activity, not the air safety of a foam-and-plastic flying wing.
“If it were true that the FAA was pursuing purportedly reckless model aircraft operators,” he says, “not only would they have other people to seek enforcement against but they would be investigating actual model plane mishaps.” Schulman is referring to cases such as the incident last year in Brooklyn, when a 19-year-old was fatally scalped by his R/C model helicopter.
UAV boosters in United States have watched the Pirker case with great interest. Unlike their counterparts in Canada, the United Kingdom, Australia and elsewhere, Americans can only fly drones recreationally. So there are whole markets, such as precision agriculture, infrastructure monitoring, land surveying and filmmaking, which remain untapped until the FAA finally unveils its plan to integrate UAVs into the national airspace. That is supposed to happen only in 2015 and only as part of a slow rollout. But some in the industry believe the Pirker victory might expedite things.
”It’s the first sign of a possible route forward for the industry which has been mired in regulatory delay for a decade,” says Schulman.
The FAA Strikes Back
The NTSB administrative judge who dismissed the FAA case against Pirker did so with “prejudice”. According to Ben Gielow, general counsel and senior government relations manager for the Association for Unmanned Vehicle Systems International (AUVSI), that verbal formulation was meant as a slap on the wrist. Basically, Geraghty told the FAA “you can’t use that policy, that internal policy, to regulate an industry absent going through the formal rule-making process, which is providing public notice, allowing the public to comment on these rules, and then to write the final rule,” Gielow contends.
The FAA is appealing the decision of Geraghty before the full NTSB, which is expected to issue a decision by mid-May at the earliest. In the meantime, current FAA regulations stand. Hobbyists can still operate drones. Companies can obtain experimental airworthiness certificates for research.
Public entities – governments and public universities – may apply for a certificate of waiver or authorisation (COA) to fly UAVs. (As of December, there are only 545 active COAs.) However, commercial unmanned aircraft use is still, for the most part, prohibited.
The FAA has also taken the time to double down on its legal claims. According to a spokeswoman, the federal regulatory body considers small UAVs and model planes as “aircraft” that can be regulated, no matter where they are flying and at what altitude – even if they are hovering only 10 feet off the ground in someone’s backyard. The FAA has even gone after drone operators not engaging in commercial activity. For example, it has ordered another client of Schulman, the non-profit Texas EquuSearch Mounted Search and Recovery Team (TES), to stop its use of rescue drones.
Now, the dismissal of the Pirker case did not create a legal precedent for the drone industry. But, Gielow notes, by appealing the decision before a full NTSB board, the FAA is “rolling the dice". If the board denies the appeal and upholds the ruling in the Pirker case, that would indeed have an impact across the entire drone industry. “And then at that point, the FAA would have no rules to govern the airspace at all. And that would really open things up,” Gielow says.
The FAA could then go to a district court or, as an agency dealing with public safety, issue an emergency rule without providing public notice or comment. That emergency rule could either maintain the status quo or allow for some new commercial activity; it all depends how much the FAA wants to butt heads with industry.
For his part, Mauricio Ortiz, CEO of Canadian drone provider Aeromao, has been following events south of the border. “We are basically waiting until the FAA creates the regulations for users to fly commercially. That’s going to be very, very good for the industry,” he says.
Agriculture, Energy, Filmmaking and More
Gene Robinson knows all about the growth potential of small drones in the USA. The founder and owner of Texas-based RP Flight Systems, Robinson was an early advocate of their use, before the FAA prohibited commercial UAV activity in February 2007. Back then, interest in drones was intense, he says. At a Department of Homeland Security conference in December 2006, he was approached by so many police, federal agency and municipal officials that he came away with a 7.5cm stack of business cards. A few months later, after the new regulations came out, his potential customers backed off.
“Every person that we contacted to the man or woman said, ‘We got to wait until the FAA gets this thing worked out,’” he says.
The same thing happened when RP Flight Systems “did the dance” with agribusiness giant The J.R. Simplot Company. With an eye on the precision agriculture market, Robinson developed an 11.3kg drone that could carry hyperspectral sensors, allowing farmers to scan their crops for signs of disease and fertiliser runoff and hydration issues. Talks were going well with Simplot until its legal department nixed any chance of a deal. Since then, times have been tough for RP Flight Systems. “I’ve been in an eight-year holding pattern, spending my money trying to keep this business afloat,” Robinson grumbles.
Last year, the AUVSI released a report estimating that, over the span of 10 years, the unmanned aircraft industry could create 100,000 jobs and have a more than an $80 billion impact on the American economy – provided the FAA actually opens up the national airspace to UAVs.
Many of those jobs would obviously go to drone makers, component providers, and software engineers. But the markets in which drones could be used are very diverse. Besides the public safety, there is agriculture, electricity, oil and gas, mining, media and many other fields that could benefit from UAVs.
“For every day the FAA delays integrating unmanned aircraft, it’s going to cost the US economy over $27 million,” Geilow insists.
AUVSI predicts that the biggest domestic market for drones will be precision agriculture. Perhaps recognising this reality, and the fact that some farmers already have been violating drone regulations for some time now, the FAA loosened its rules in November and now allows farmers to use UAVs – but only on their own land.
Moving into this still inchoate field, Kevin Price, vice-president of RoboFlight, teaches farmers how to use drones and make sense of the data they collect. “We’re working with agronomists… We train them on how to interpret the imagery. And then they work with the farmer and say, these are areas where we’ve spotted some issues in the fields,” he explains.
Besides farming, the utilities could also benefit from small drones. Ian McDonald, vice-president of product and marketing for Canadian company Aeryon Labs, which sells quadcopters, says that UAVs could, for example, survey power lines after a storm or make sure that trees growing nearby do not pose a problem. Drones could even be used as a day-to-day maintenance tool. “It could be part of a repairman’s process in doing an actual repair, so before you climb up a tower, use a system like ours to look and see what components will need to be replaced when you get up there,” McDonald says.
Then there is the oil and gas industry. UAVs are a cheap and safe way to perform aerial observation of pipelines – or ice floes in the Arctic. Last June, AeroVironment, a California-based company that supplies most of the small drones to the US military, won a rare FAA exception to engage in commercial drone activity in Alaska, says vice-president of marketing strategy and communications Steve Gitlin. He declined to say specifically what AeroVironment’s Puma AE fixed-wing drone is doing there, although a company press release did talk about “oil spill monitoring and wildlife observation". Likewise, Gitlin said that UAVs could help direct transport ships through passages in the ice that have recently formed due to “changes in the atmosphere, changes in weather patterns".
Companies in Canada and the UK have been employing small unmanned aircraft to do everything from surveying construction sites to creating independent and promotional films. One non-American municipality approached Aeryon Labs for a drone to combat summertime fires breaking out in overheated garbage heaps. “They wanted to use the system to provide thermal imaging so they could get advance notice of where there may be hotspots, and then move the piles around and provide water [or] whatever kind of action they needed to take,” says McDonald.
The true scope of the UAV market has yet to manifest, says Nelson Paez, CEO of Dreamhammer, an operating systems provider for UAV controllers. Trying to anticipate everything now would be akin to asking Apple to predict “what kind of apps… would be on the iPhone once they put the platform out there,” he insists.
Waiting for America
In Canada, the UK, Australia and other countries, drones are already being used for commercial purposes. In the UK, pilots can fly small commercial UAVs with a Basic National UAS Certificate – Small Unmanned Systems (for operating drones weighing less than 7kg) from the Civil Aviation Administration (CAA), which requires taking a course, passing an exam, writing a flight operations manual and doing a flight test, says Blake Sporne, director at UK-based Access UAV. Then there is separate CAA flight permission certification, liability insurance and clearing flights with local authorities, a so-called “Met Check”.
In Canada, a commercial drone operator requires a Special Flight Operations Certificate from Transport Canada and needs to follow safety rules, like keeping away from airports.
While Sporne complains about CAA bureaucracy (“it’s hoop after hoop after hoop”), it is exactly this kind of UAV certification that makes the American drone industry jealous. “We’re probably one of the few industries that is begging the federal government to regulate us. We need that regulatory certainty to know what the pilots need to be trained towards and know what the aircraft needs to be designed towards,” says AUVSI’s Gielow.
In December, the FAA set up six research and test drone sites throughout the country, and an FAA spokeswoman says that the gradual integration of drones into US national airspace is on schedule to begin in 2015 – years late, says Gielow.
As to why so many other countries are so far ahead of the US, a “myth busting” document on the FAA website argues that such comparisons aren’t fair. “The United States has the busiest, most complex airspace in the world, including many general aviation aircraft that we must consider when planning UAS integration, because those same airplanes and small UAS may occupy the same airspace,” it reads.
Mike Corcoran, Unmanned Aircraft System course manager at the University of North Dakota’s UAS Center of Excellence, one of the six drone test sites, backs up the FAA’s slow approach as being appropriately conservative. “I will tell you, after having actually flown around the planet, the FAA and the safety record that we have in the United States is unmatched,” Corcoran says.
Dreamhammer's Paez grants that the US has fallen behind countries like Australia and Japan in drone use. But he believes that, once the FAA opens the national airspace to UAV, Americans will catch up. They have a knack for making new technology profitable, he notes. “Really, everyone else is waiting for the US to open its markets because we can make money here,” he says.