David A. Cain, Esq.
What place do unmanned aircraft systems (UAS, or commonly — if imprecisely — drones) have in our American skies? If you own or operate a small UAS, do you know where you can legally fly it and how you can use it? If you are sipping iced tea in your backyard when a small drone with a video camera flies over your property at eye level, what would be the legal repercussions if you, say, whacked it to the ground with a tennis racket?
While the Federal Aviation Administration recently released draft rules — a well-reasoned step toward safe UAS integration — the answers to these questions are not yet clear. They are precisely the types of questions considered by the world-class legal minds and aviation experts who founded the Air Law Institute Collaborative Center at California Western School of Law here in San Diego.
The apparent delay by the FAA in creating clear regulations concerning the integration of UAS into the national airspace system has resulted in a great deal of harsh criticism in the general press. This criticism is unfair, unfounded, and championed not by the leaders of the aerospace industry, but by those who would move quickly into a vacuum of economic opportunity, perhaps even at the cost of safety. As David Bannard, a partner at Foley & Lardner LLP who represents one of six FAA UAS test sites, puts it, “We are at the point of being able to develop all of the standards for an absolutely brand new industry.” That takes time. Those who know aviation understand this fact.
While many opportunistic high-tech UAS startups and delivery companies are clamoring to see regulatory lines drawn hastily in the air, the large established companies that have been building safe and stable aviation systems for generations are not. Those institutions understand that the space between inspiration and regulation is where innovation happens. They also recognize that it takes time to get it right; it takes time for regulation to catch up to innovation. Historically, and appropriately, we innovate, and then we regulate.
“The industry really can’t wait for the government to get around to coming up with the rules,” says Brandon Suarez, an engineer at General Atomics Aeronautical Systems who is an industry-recognized point man for large UAS integration. “Industry is coming forward with technology, with an answer, with a solution, and the regulations catch up.” The innovators are innovating. The regulators are regulating. So who is clamoring? Not the stable aviation institutions.
The stable players that make up the aerospace economic engine that helps drive the regional economy in Southern California and Northern Mexico are working hand-in-hand with regulatory agencies, and will not be heard lambasting our government in the press. According to James Zortman, Sector Vice President for Northrop Grumman Corp., “The technology is here today… and unless [the social and regulatory pieces] are addressed, they threaten to derail an industry that one day could probably rival—if not surpass—manned aviation.” Companies like General Atomics and Northrop Grumman are working the problem. Carefully. Methodically. Just like they build aircraft and stable companies. They are working the problem with the kind of focus that puts a man on the moon by the end of the decade. And they are addressing unanticipated hurdles with the same kind of creative passion that brings three men safely home from space in a makeshift life raft.
While working the problem, the UAS sector is looking to commercial aviation for precedence and guidance. Todd Emerson, General Counsel for SkyWest Airlines, gave this clear counsel to the aerospace sector gathered for the 2014 Air & Space Law Symposium at California Western School of Law: “When [UAS] rules are being written, make sure they are written right the first time, because they don’t tend to change. The rules [commercial aviation has been] living under today are 50 years old, and they do not reflect the current status of the commercial aviation industry.”
For the benefit of the flying and flown-over public, the FAA should not be harangued for being methodical and looking to established aviation companies for precedent. Let us recognize that a huge endeavor like boiling the technology ocean might take a bit longer than our Congressional leaders projected in 2012 when they mandated unmanned integration by September 2015. The FAA and stakeholders comprising the special committees at RTCA, the technical advisory group to the FAA, are working the problem. If September 2015 slides right into October 2016, or January 2017, let us see if we can frame safe integration as a win, acknowledging that it took us a little more effort than we had originally estimated. After all, if we had put a man on the moon not by end of the decade but by the first year of the next decade, it still would have been a clear win for the history of flight.
Jim Williams, manager of the FAA’s Office of Unmanned Aerial Systems Integration, has correctly pointed out that while Congress directed the FAA to have safe UAS integration complete by September 2015, they did not exempt the agency from any of the procedures Congress itself put in place that govern the rule-making process. Since being named to this position three years ago, Williams has made UAS integration a top priority for the agency, and the FAA is moving faster on this issue than it ever has before. Certainly we should expect — demand — that the FAA do its due diligence in crafting such monumental regulatory changes.
When the FAA made the giant leap in 2013 of announcing six UAS test sites, Williams’ team received 25 applications from 24 states, even though no federal money was designated for the sites. California Governor Jerry Brown’s GoBiz team and Rep. Scott Peters deserve a great deal of credit for bringing together the leaders of the California aerospace industry to spearhead a late push to win a site for the state. Despite their best efforts, and the state’s long blue aerospace legacy, California did not receive approval for one of the initial six UAS test sites.
But for every cloud…
The lack of heavy federal oversight that came part and parcel with an UAS test site award created a bright opening for those left standing alone at the FAA UAS test site dance. As Dr. Mary Walshok, noted sociologist and Associate Vice Chancellor for Public Programs and Dean of Extension at the University of California San Diego, pointed out recently during an inspiring presentation at the University Club atop Symphony Towers, San Diego attracts bright minds. Some of the brightest in the history of aviation are gathered among the hills from North County to Northern Mexico. While other hills are full of crazies selling $10 certificates to hunt drones (and becoming relatively rich so doing), and commercial exemptions for UAS are flying at the FAA’s Williams from across the nation, the leaders of the aerospace giants are not chastising the FAA. The visionaries of the industry are looking beyond the life-limited economy of the small UAS commercial exemption. Visionaries like Neal Blue and Linden S. Blue can see a world where packages move themselves via cybersecure trucks, trains, ships, and aircraft, and — if Linden Blue’s vision is as clear as it has always been — a free world one day free from poverty and full of light and promise.
Grand visions like these take time and thoughtful attention beyond political motivation; they take pure innovation. Innovation is occurring throughout the world, and our region is a key player in defining this exciting next segment in the arc of aviation history. Advisory groups like RTCA — through their special committee structure — leach out the political motivations as we work through these daunting challenges. Methodically. Patiently. With clear focus on quality over time.
And our region is leading the charge.
While the wheels of American aviation safety may not turn as quickly as sales-hungry giants like Amazon — new to the aviation game — might prefer, the FAA will safely integrate unmanned aircraft into the national airspace system, if not by the end of this figurative decade, then certainly by the first year of the hypothetical next. If this means that our forward-thinking friends at Amazon prove the small UAS delivery concept over relatively sparse population under the watchful eye and more liberal UAS rulemaking of the Australian Civil Aviation Safety Authority before landing on the doorstep of 123 Main Street, Everywhere USA, we as a nation should be grateful for the innovation by Amazon, the value added to this great American business, and the great relations between our great nations.
As we have proven — unfortunate war after unfortunate war — America brings technology home from the battlefield for national economic benefit. This takes time, we need to do it safely, and we need to do it through stable partnerships between industry and government.
This is not political innovation or forced integration for speedy economic benefit, but careful, methodical, innovative problem solving with an eye on system safety and stability. The regulations are catching up.
David A. Cain is a finance and restructuring lawyer at Ballard Spahr LLP with a special emphasis on the aviation and aerospace industries. He is a former airline captain and California National Guard tank platoon leader who lives in National City with his partner, Claudia, and their seven children.
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