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Rules would ban nightime flights, would also ban flyovers where the drone can be shown to have gone out of the operator's line of sight

Those cool nighttime drone cam shots from your local news networks?  Illegal.  Those YouTube hobbyist flyovers of Apple, Inc.'s (AAPL) headquarters?  Illegal.  Amazon.com, Inc.'s (AMZN) wild Prime Air delivery drones?  Illegal.  Google Inc.'s (GOOG) internet drones?  Facebook Inc.'s (FB) WiFi-providing fliers?  Likely illegal.  Hobbyist drones, like the Da-Jiang ("Great Territory") Innovations (DJI) Science and Technology Co., Ltd. Phantom?  Like illegal too, unless you have experience aboard a real airplane.

I. Regulation Cometh

These are just a few of potential impacts of a rather severe set of guidelines governing private sector use of unmanned aerial vehicles (UAVs) -- small aircraft commonly referred to as "drones".

The guidelines trickled out this week via comments by officials at America's airspace federal regulatory agency, the U.S. Federal Aviation Administration (FAA) to The Wall Street Journal and other outlets.

Here's the basic rules in their leaked form:
  1. Mid-size automated aircraft >= 55 lb will go unregulated for now for private use
  2. "Drones" for this regulation are < 55 lb.
  3. No private drone flights are allowed at night
  4. Drones are limited to 400 feet or lower during flight
  5. Drones must be within the line of site of the operator
  6. The operator must be have select low level pilot certification
  7. These certification would typically require "dozens of hours flying manned aircraft"
FAA Drone Rules
[Image Source: The WSJ/Bloomberg]

To be clear, at present there's basically no rules on a federal level restricting individual drone use.  Instead, the FAA shelved that discussion.

II. Soaring Complaints, Requests

Commercial use, meanwhile banned wholesale six years ago, around the time drone use really started to take off.  There is a bit of a loophole, however.  Commerical entities can petition for exemptions for research, reporting, and other purposes.  The FAA, however, waited until June of this year to finally issue its first exemption.  Some frustrated news agencies have simply been defying the ban, resigned to live with the possibility of fines.  Currently there's a logjam of about 150 unanswered requests piled up.

FAA logo
The FAA has been under pressure from commercial operators to draft official rules, in light of its poor track record with exemptions. [Image Source: Kezi.com]

The laissez-faire policy towards hobbyist use has led news agencies and would-be drone fleet operators like Amazon to vocally complain to the federal government.  Amazon and Google are both relatively prominent lobbyists, pouring a lot of money towards federal elections, so there was mounting pressure of the FAA to put forth a more unilateral set of restrictions for hobbyist and commercial use.  A federal court recently ruled the FAA could not ban commercial use, particularly in light of its allowances for hobbyist use.

Pressure was also mounting on the other end, from federal agencies and state regulatories who were growing annoyed with the lack of regulation on hobbyist usage.  The National Parks Service, for example, recently banned hobbyist drone use from all national parks, complaining overuse of drones was disrupting wildlife at some busy parks.  Coupled with a conflicted cobweb of state laws, pressure was mounting on the hobbyist end, as well.  Hobbyists were asking the FAA for relief, state and federal regulators were asking the FAA for more restrictions, in many cases.
DJI Phantom quadcopter
The DJI Phantom quadcopter is perhaps the most popular hobbyist drone.  
It weighs roughly 2.8 lb (1.27 kg). [Image Source: Quadcopters.co.uk]

Many had hoped the FAA would weigh these competing interests and come to a solution everyone could live with.  But if there is such a solution, it isn't these guidelines.  They haven't even been released yet, but with this week's revelations tech evangelists, hobbyists, and early adopters are already condemning the guidelines as draconian and luddite.

The FAA insists that it's all about safety.  An official statement from the agency revealed:

[The FAA is tasked to] integrate unmanned aircraft into the busiest, most complex airspace system in the world—and to do so while we maintain our mission—protecting the safety of the American people in the air and on the ground. That is why we are taking a staged approach to the integration of these new airspace users.

Or so it says.  But then comes the catch.

III. The Loophole -- Heavy, Gas-Driven Drones Need Not be Restricted

The expected rules carry a rather confusing and intriguing loophole for hobbyist use and exempted commercial use: drones 55 lb or more may be exempt from regulation.  Hogan Lovells US LLP partner E. Tazewell "Ted" Ellett, a former counsel (lawyer) for the FAA, seemed to defend the policy.  In a comment to The WSJ he remarks:

[The agency must] properly balance regulatory restrictions and the safety risks posed by [various sizes of unmanned aircraft].  A one-size-fits-all [approach] will create yet another unnecessary and costly impediment.

The FAA believes these large drones are safer, as they're less likely to be missed by operators of traditional manned aircraft (manned helicopters and airplanes of various sizes).  There's also less risk of structural damage if the drones crash land, according to agency sources.

The latter conclusion is a bit puzzling, because you would think a large, gasoline equipped drone -- the 10-foot winged multi-use ScanEagle from The Boing Comp. (BA), for example -- would do more damage on impact than a small drone with less mass and no combustible fuel.  But the FAA insists otherwise.

ScanEagle
A Boeing ScanEagle launches from a ground catapault. [Image Source: USAF/Boeing]

The hobbyist crowd hasn't exactly been well represented in the discussion yet.  But given that the thorny restriction would also ban many promising media and hobbyist flyovers for news purposes (e.g. the recent scoping of the Star Wars Ep. VII set in the UK with small drones), tension is building.  It's not an exagerration to suggest that the proposal could kill the American hobbyist drone market for several reasons:
  1. The vast majority of hobbyists lack the pilot licenses necessary to fly drones under the new rules.
     
  2. Manned flight time is expensive, so is larger (>55 lb) drones.  Hence financially, as well, few hobbyists would be able to continue to enjoy drones under the new guidelines.
     
  3. Most hobbyists want to fly drones out of their line of sight.  Many wouldn't be interested in boring hover excursions overhead.  They want to explore.
The small drone distinction could be equally damaging to some commercial operators.  Amazon, for example would have to dramatically redesign its drones to try to exceed the 55 lb limit to avoid the line of site restriction.

Prime Air drone
The Amazon Prime Air drone would have little hope of meeting the exemption weight.

Currently the Prime Air drones are octocopters capable of carrying 5 lb (2.25 kg) of cargo and weigh an estimated 10-15 lb (4.5-6.8 kg) [source].  They would need to more than quadruple in weight to skirt the FAA restricted weight ceiling -- which would surely radically shift their aerodynamics, cargo capacity, and commercial viability.

In general, any copter style drone would have trouble swelling to a heavy enough weight to escape restriction.  This would compel a switch to winged airplane-style drones, which lack the vertical takeoff and landing capability.  In other words, the rules might not kill Amazon Prime Air dead, but they would at least put a nail in its coffin.

IV. Small Drone Makers Call Restrictions Stifling, Unnecessary

Unsurprisingly, the Small UAV Coalition (SUAVC) -- a trade group who both Google and Amazon support -- is vocally against restrictions that single out small drones.  SUAVC director Michael Drobac, also a policy adviser at law firm Akin Gump Strauss Hauer & Feld LLP, warns:

I feel like there’s a colossal mess coming.  [The rumored rules with bias against small drones are] so divorced from the technology and the aspirations of this industry…that we’re going to see a loud rejection.

The largest drone lobbying group -- the Association for Unmanned Vehicle Systems International (AUVSI) -- is also fuming.

Its former executive vice president, Gretchen West complains that large military drone contractors like Lockheed Martin Corp. (LMT), Northrop Grumman Corp. (NOC), and Raytheon Comp. (RTN) sold the government a vision of the merits of large drones, and the FAA drafted its rules on that basis, without considering the merits of small drones, which lacked a large lobbying presence.  She says the expected rules are "going to be very restrictive for small systems."

Northrop Grumman Triton
Northrop Grumman's NQ-4C Triton Broad Area Maritime Surveillance Unmanned Aircraft System (BAMS UAS) is an example of a heavy military drone, weighing in at 32,250 lb (14,630 kg).

From a technical standpoint small drone advocates question if the FAA is out of touch with basic physics.  While its visibility gripes may be a valid and tough concern, even advocates will concede, the FAA's reported belief that collisions and crash landings with small drones would cause less damage is farfetched, some experts believe.

Further, the flight restrictions related to small drones requiring piloting experience are punitive and breed false confidence, small drone experts warn.  After all, learning to fly a large manned plane might seem to ready one for drone use, but in reality it has little to do with the techniques necessary to safetly and efficiently pilot a small drone, they say.

Airware, who makes software to assist pilots of small drones, is among those speaking out.  Its head of regulatory affairs, Jesse Kallman summarize the situation, explaining:

[Manned aircraft training requirements] will end up excluding someone who has hundreds of hours of experience on an unmanned aircraft in favor of a pilot who understands how to operate a Cessna but not an unmanned aircraft.

Other drones -- like the ScanEagle used by ConocoPhillips (COP) and other oil/natural gas companies for prospecting and pipeline inspection -- are already winged designs and could probably add a dozen pounds or so and fly above the weight ceiling.  Agricultural users are exploring both copter and winged drone use for flyovers of large farms to track crops.  The winged versions could survive the new guidelines with redesign.

V. A Potential Framework for Rules Hobbyists, Commercial Users, and Safety Advocates Can All Live With

FAA lawyers, though, may be limited by red tape, though, it turns out, which could explain the baffling nature of some of the restrictions -- including the line of sight and manned flight requirements.  Currently those are almost identical to the restrictions on model aircraft.  Model aircraft use by hobbyists remains relatively low, so those rules are enforced on a voluntary basis.

model aircraft
Current UAV restrictions are extrapolated from model aircraft hobbyist rules. [Image Source: AirfieldModels]

Current hobbyist rules do have similar restrictions, but they're largely ignored, as like model aircraft, compliance is on a voluntary trust basis. But the FAA apparently believes that Congressional rules mandate it to more rigorously document users compliance -- both hobbyist and commercial -- given how widespread some believe drone use may become.

One solution is for Congress to untie the hands of the FAA and legislate new language that would allow for lighter restrictions of modern drone use.  On the other hand if the FAA is not being forthright about its desire to reduce these headaches, such a move could hurt small drone operators even worse.  In a worse case scenario the FAA might have more leeway to draft even messier, more ambiguous red tape, fatally stifling the small drone market.

Assuming it truly wants to help, though, here's where it might start:
  1. Allow drones to fly out of line of sight as long as they obey altitude restrcition and aren't in a restricted zone (a national park, an airport, etc.)
  2. Require reasonable drone-specific training, fullfillable online (a drone provider like DJI could post a course on YouTube and then quiz a user via a web interface for certification).
  3. Require drone models to be certified as night ready (be equipped with night vision, warning lights, etc.) for nightime use, but avoid a complete ban.

With that in mind, for now hobbyists and industry users alike will have to play the waiting game.  An official draft is expected from the FAA by the end of the year. The rules will then go through a one-year public comment window.  Depending on the feedback, more time may be needed to draft revisions.  (This seems likely.)  Thus the whole process could not be complete until two years from now, or so.  For now the current restrictions (for commercial users) or lack thereof (for hobbyists) apply.

A draft of rules for heavier drones (55 lb and up) is expected to be several years away, according to FAA sources.

DHL Delivery Drone
FAA rules governing small delivery drone copters, like Deutsche Post AG (ETR:DPW) subsidiary DHL Express's "Parcelcopter" are still at least a year away from being finalized. [Image Source: The Guardian]

Thus the hammer isn't falling quite yet, and it's important for drone advocates to avoid panicking too early.  But the issues bears careful consideration, as rules are coming, and bad rules could turn America from a world-leading oasis of hobbyist drone purchases into a barren dessert with few individual drone users.

One must also consider equity.  While commercial and hobbyist users warily eye the expected tough restrictions, military drone operators -- both government and private contractors -- face far fewer restrictions.  And military, surveillance, and police drone usage is growing over the U.S. skies.  That has some asking -- is the government praciticising a double standard?

Source: WSJ





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