Attorney Brown Files Drone Aircraft Comments

Attorney Shannon Brown filed official comments on the FAA’s proposed, drone aircraft (UAS) regulations and explanations. The FAA printed the Interpretation of the Special Rule for
Model Aircraft (79 FR 36172) in the Federal Register on  June 25, 2014. (The FAA extended the comment period until September 23, 2014.)

My comments urge the FAA to uphold Congress’ definition that limits model aircraft use to “visual line of site” according to the FAA Modernization and Reform Act of 2012 § 336. The comments also challenge claims that limiting hobbyist uses of goggles, telescopes, binoculars, spotters, and other artifices somehow “damages” businesses providing these devices.

The full text of the comments is below.

FAA– 2014–0396
79 FR 36172

14 August 2014

Dear the Honorable Michael P. Huerta, FAA Administrator:

I submit the following comments to 79 FR 36172 (FAA– 2014–0396).

Urge FAA to Uphold the Congressional Interpretation of Visual Line of Site

As the FAA recognizes, an administrative explanation of “visual line of site” appears superfluous. Congress plainly specified “visual line of site” as an absolute touchstone for a device falling into the definition of “model aircraft.” See FAA Modernization and Reform Act of 2012 § 336.

While the FAA appears to attempt to be helpful, the explanation may carry no weight according to Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984). Chevron plainly outlined a two-step analysis of deference to an administrative agency’s interpretations of law. Step 1 obligates the administrative agency to give effect to the unambiguous Congressional intent. Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984). Nothing in the statutory definition of “flown within visual line of sight of the person operating the aircraft” (FAA Modernization and Reform Act of 2012 § 336) appears ambiguous. Certainly, vision enhancing goggles, spotters, and other artifices conflict with Congressional definition and Congressional intent to limit model aircraft to those operating within the term-of-art, “visual line of site.”

The distinction appears necessary looking at recent history regarding UASs (more commonly, drone aircraft). In the FAA’s attempts to be helpful, operators continue to ignore or press-the envelope on a potentially dangerous and problematic activity, without accountability, and then use the FAA’s “help” against the FAA and the public—see the recent Pirker, administrative law decision related to the 91-57 where the FAA’s longstanding, helpful guidelines were used to effectively strip the public of protection (albeit a decision stayed on appeal). Goggles are prohibited from model aircraft operation because Congress, not the FAA, deemed them so.

No “Damage” to Business from Explanation

Several outlets maintain that the new “rule” will “damage” UAS-related businesses—especially those businesses associated with video-feed devices for drone aircraft. First, businesses take risks attempting to be early to market. The public, nor the FAA, must “guarantee” against alleged business “losses” from those risks.

Second, such devices, without testing, hardening, and certification, pose obvious risks to the public and add yet another avenue for failure in UASs. Those risks, as Congress determined, are beyond the needs of hobbyist purposes. The added risks arise from an operator who would need to rely on both the radio frequency communications to the drone aircraft and the radio frequency feed from the camera. Either can fail. And radio frequency interference remains an unanswered issue with these types of aircraft.

Third, the prohibition on goggles and other artifices applies only to “model aircraft”—thus aircraft used for hobbyist and recreational purposes. Nothing appears to limit these businesses from developing such devices or artifices for commercial uses. And commercial uses imply a heightened awareness of risks by a business and then adequate accountability measures (insurance, certifications, testing, etc.) to limit the risks. Thus, Congress’ intent appears to logically address the safety issues associated with such devices by limiting the devices to accountable situations via the indirect pressure of business accountability.

The point here is that businesses cannot seriously argue “damages.” Congress plainly defined the law on model aircraft and that Congressional definition, not FAA explanation, obviates visual artifices in model aircraft.

Shannon Brown Esq.