FAA Grants Additional Waivers for Commercial UAS Operations

Unmanned Aerial Systems ("UAS") colloquially referred to as “drones” continue to be a hot topic in commercial aviation.  This year the NTSB upheld the FAA’s right to regulate UAS for commercial purposes as aircraft in the National Airspace System.  Today, the industry learned that the FAA issued waivers of operation of UAS for commercial purposes to seven new companies.  That brings the total to 11 companies properly authorized to conduct commercial UAS operations. 

There are currently 167 applications pending with the FAA to obtain waivers for authorized use of UAS in a multitude of different industries.  The initial approvals were all granted to companies involved in movie production.  The latest round of approvals were granted to commercial operations ranging from aerial surveying, to construction site monitoring, and oil rig flare stack inspections. 

Department of Transportation Secretary Anthony Foxx outlined policy going forward on this quickly developing segment of aviation as follows:  “Unmanned aircraft offer a tremendous opportunity to spur innovation and economic activity by enabling many businesses to develop better products and services for their customers and the American public.  We [the FAA] want to foster commercial uses of this exciting technology while taking a responsible approach to the safety of America’s airspace." 

As different businesses embrace the technology, it is clear that companies who intend to remain competitive are acting now to obtain FAA approval in order to utilize UAS to make their operations more efficient and poised for growth.   If you are interested in submitting an application to the FAA for commercial UAS approval, then contact Aviation Attorney Ronnie Gipson at 415.692.6523 or by email at Gipson@higagipson.com.   

The FAA Takes the First Step in Integrating Unmanned Aircraft Systems Into the National Airspace Plan

The integration of Unmanned Aircraft Systems (UAS), commonly referred to as "drones", into the National Airspace System (NAS) is currently the hottest topic in domestic aviation.  The proponents and opponents each have well reasoned arguments supporting their respective positions. One side touting the economic benefit and the other side citing very real safety concerns.  This week, integration of UAS into the NAS took a giant step forward. 


On Thursday, September 25, 2014, Transportation Secretary Anthony Foxx announced that the Federal Aviation Administration granted regulatory exemptions to six aerial photo and video production companies allowing them to operate UAS in the NAS.   The film industry requested the exemptions from general flight rules, pilot certificate requirements, manuals, maintenance, and equipment mandates.  However, the exemptions that were granted by the FAA require the operators of the UAS to comply with the following:  (i) the operators of the UAS must hold a private pilot certificate; (ii) the UAS must be kept in line of sight of the pilot while operating; (iii) operations are limited to daytime only; and (iv) the UAS is limited to operations that do not go beyond the physical proximity of the set.  In addition, the FAA required that the operators of the UAS perform an inspection of the aircraft before each flight. 

The conditions set forth accompanying the exemptions should come as no surprise to aviation law experts.  The points contained in the exemptions were highlighted in the FAA order signed by NTSB Administrative Law Judge Geraghty in the FAA v. Raphael Pirker decision.  As such, going forward operators of UAS seeking exemptions from the FAA for commercial use can expect to have to employ a licensed private pilot to operate the UAS and to have those flight operations limited to daytime line of sight only.

If your business wants to explore the use of UAS through the grant of an exemption from the FAA, then contact Aviation Attorney Ronnie Gipson at 415.692.6523 or by email at gipson@higagipson.com.   

The California Secretary of State Issued A Notice Regarding Scams Targeting Business Owners by Elisha Yang

Recently, the California Secretary of State issued a "Customer Alert" regarding fraudulent activity targeting registered business entities in California.  A private company identified only as "California State Corporations" is illegally sending misleading solicitation letters to California businesses.  The entity titled, "California State Corporations" has no affiliation with the Secretary of State's office.

The notices being sent look official and appear to originate from a government agency, when in fact the notices do not come from any government agency.  The notice letters instruct business owners to submit a form along with a fee of $49.50 in order to receive a Certificate of Status. 

A Certificate of Status is a document that can only be issued by the California Secretary of State as evidence that a business entity exists, is in good standing, and may conduct business in California.  The official Certificate of Status must bear the seal of the State of California accompanied by the signature of the Secretary of State, Debra Bowen.  A Certificate of Status may be required in order for a business to obtain financing; renew a business license; or enter into a business transaction.  To obtain a genuine Certificate of Status, a business owner should contact the Secretary of State's office directly.

Before you fill out any form regarding the registration of your business, especially one purporting to provide an unsolicited status, review the document carefully to ascertain that it originates from a legitimate government agency.  If you receive a notice and are unsure about its propriety, then contact attorney Ronnie Gipson by telephone at 415.692.6523 or by email at gipson@higagipson.com.   

FAA Announces Hefty Fines For Multiple Hazardous Materials Shipping Violations- by Elisha Yang

     In press releases issued today, the FAA announced a number of proposed civil penalties directed towards certificated operators and non-aviation companies ranging from $54,000 up to $195,000.  The penalties all pertain to the improper presentation for shipment of hazardous materials and the failure of the companies to provide hazardous materials training.

     British Airways, in particular, is facing a sizeable penalty of $195,000 as a result of shipping a chemical oxygen generator via a passenger aircraft from London Heathrow Airport to Dallas/Fort Worth International Airport for repair.  Due to its extremely flammable nature, oxygen generators are prohibited as cargo aboard passenger aircraft.  Improper labelling of oxygen generators caused the crash of Value Jet Airlines Flight 592 on May 11, 1996.   

     Companies involved in the shipping of hazardous materials must be cautious of potential FAA violations due to the life threatening outcomes possible from shipping dangerous materials on passenger flights.   Penalties imposed by the FAA for violations of any Hazardous Materials Regulation can be avoided by taking appropriate measures within a company to ensure compliance with the applicable regulations.  

     Companies who are subjected to proposed civil penalties are entitled to challenge the sufficiency of those penalties in an administrative hearing before the National Transportation Safety Board.  As part of the FAA’s enforcement process, the FAA will routinely offer to meet with the infringing company to discuss the pending case and attempt to reach a resolution in lieu of proceeding with a hearing.   

 
     If your company receives a notice of Proposed Civil Penalties from the FAA for violation of the Hazardous Materials Regulations, then contact Aviation Attorney Ronnie Gipson by email at Gipson@higagipson.com or by telephone at (415) 692-6523.

Clearing Up the Confusion With Aircraft Accident Reporting

            There continues to exist a great deal of confusion in the general aviation community about the reporting requirements after an aircraft accident or incident.  There is a huge difference between an accident and incident, especially with respect to the reporting requirements.  An airman or operator who gets the reporting requirements wrong could become subject to a revocation or suspension action by the FAA unnecessarily. 

            Code of Federal Regulations Part 49 section 830.5 mandates that a report of an aircraft accident shall be filed with the National Transportation Safety Board (NTSB) immediately or no later than within 10 days after the accident.  In comparison, a report is not required if the aircraft is involved in an incident, unless the pilot in command or operator is specifically directed to file a report by the NTSB.

            An accident, as defined in 49 CFR §830.2 means, “an occurrence associated with the operation of an aircraft that takes place between the time any person boards the aircraft with the intention of flight and all such persons have disembarked, and in which any person suffers death, or serious injury, or in which the aircraft receives substantial damage.”  The regulations then go on to define “substantial damage”.  It is important to note that in the definition, the regulations specifically exclude certain types of damage to the aircraft from qualifying as “substantial damage”.  For example, damage sustained to the landing gear, wheels, tires, flaps, engine accessories, brakes, or wing tips of an aircraft are not considered “substantial damage” for reporting purposes. To make the point clearer, if a pilot damages the landing gear during the flight, then absent other more serious factors such as serious injury or death, then an accident has NOT occurred and the pilot/operator is NOT required to file a report.

            Another complicating factor that is prevalent in the reporting process is that pilots/operators for some reason instinctively contact the FAA to report an accident.  The NTSB is the Federal agency charged with conducting aircraft accident investigations in the United States.  It is the practice of the NTSB to delegate the investigative function for less serious accidents within the general aviation segment of the industry to the FAA.  However, the NTSB is still responsible for identifying the probable cause for any aircraft accident regardless of who conducts the investigation.  For a pilot/operator to initially contact the FAA instead of the NTSB opens a confusing can of proverbial worms because the FAA has the power to pursue enforcement actions against pilots/operators for alleged infractions of the Federal Aviation Regulations that they may discover while conducting an investigation.  Pilots and aircraft operators take heed, if the regulations require the filing of a report due to an aircraft accident, then that report must go to the NTSB and not the FAA.

            Should you have any questions about “substantial damage” to an aircraft or the filing requirements after an aircraft incident or accident, then contact Aviation Attorney Ronnie Gipson at 415.692.6523 or by email at Gipson@higagipson.com.

The FAA Clarifies the Rules on Model Aircraft

On July 18, 2014, the Federal Aviation Administration (FAA) published a notice of interpretation for the special rules applicable to model aircraft under the FAA Modernization and Reform Act of 2012 (the Act). 

The Act authorizes the FAA to integrate unmanned aircraft systems (UAS) into the National Airspace System (NAS). A model aircraft qualifies as a type of UAS and the FAA established special rules for this type of aircraft.  Due to public confusion regarding the rules, the FAA provided this recent interpretation to help clarify what constitutes a model aircraft and what qualifies model aircraft for exemption from future rulemaking.  Additionally, the FAA elaborated on the scope of its authority to take enforcement action against those operators who commit safety violations.

The definition of a model aircraft that Congress provides is consistent with the FAA’s long-standing position that it is one that is operated without the possibility of direct human intervention from within or on the aircraft.  As such, the FAA interpreted this portion of the Act in such a way that visual line of sight would mean that the operator has an unobstructed view of the model aircraft.  If the UAS qualifies as a model aircraft, then the next question should be is it exempt from future rulemaking. 

Congress restricted the FAA from establishing regulations regarding a model aircraft that meets certain exemption terms.  These operational requirements are the source of confusion for those who operate model aircraft due to the uncertainty as to whether future rulemaking applies to them or not. A model aircraft that does not meet these statutory requirements is nonetheless an unmanned aircraft and as such is subject to all existing FAA regulations, as well as future rulemaking action.

The FAA concluded that it was the intent of Congress for the FAA to be able to rely on a range of existing regulations to protect users of the national airspace system, people, and property on the ground.  As a result, regardless of whether a model aircraft satisfies the statutory and operation requirements mentioned above, if the model aircraft is operated in such a manner that endangers the safety of the NAS, the FAA may take enforcement action.  

If you are uncertain as to whether or not your UAS qualifies as a model aircraft or for future rulemaking exemptions, then contact Aviation Attorney Ronnie Gipson at (415)692-6523 or gipson@higagipson.com.

The FAA Considers Integrating Commercial Unmanned Aircraft Systems For the First Time into the National Airspace System

           The FAA Modernization and Reform Act of 2012 (the Act) tasks the Federal Aviation Administration (FAA) with integrating unmanned aircraft systems (UAS) into the National Airspace System (NAS).  The Act legislates under the premise that UAS activity and accompanying regulations will develop from research and test flights and then go on to cover commercial operations.  Currently, public agencies have access to the NAS in order to facilitate testing and operations of UAS.  Certificates of Waiver or Authorization are available to public entities that want to fly UAS in civil airspace and have been issued for the following flight operations:  law enforcement, firefighting, border patrol, disaster relief, search and rescue, and military training. 

 

            In contrast, commercial operators, i.e. companies who propose to use UAS to earn a profit, have not been granted access to the NAS for testing purposes or otherwise by the Act.  The Act gives the FAA the authority to grant an exemption to commercial operators to operate UAS in the NAS on a case-by-case basis.  The policy of the legislature and the FAA is that for UAS to operate safely in the NAS, the UAS must meet the same certification criteria for aircraft airworthiness and pilot certification as manned aircraft.  In other words, at this stage for the FAA to grant approval of a UAS in the NAS, there must either be a certificated pilot at the controls or the operator must demonstrate that the operator of the UAS can safely perform operations without an airman certificate as well as comply with all of the other pertinent Federal Aviation Regulations. 

 

            Recently, the Motion Picture Association of America facilitated an exemption requests on behalf of seven of its aerial photo and video production company members to the FAA asking the agency to grant an exemption from the Federal Aviation Regulations that govern general flight rules, pilot certification requirements, manual requirements, maintenance and equipment mandates.  The exemption request, if approved, would represent the first time that the FAA allows use of UAS for commercial operations.  The aviation industry as a whole will be closely watching the MPAA’s exemption request for indicia of the precedential steps that other commercial operators will have to follow in the future to achieve authorization for UAS to operate in the NAS.  If you intend to integrate UAS into your business’s operations, then contact Aviation Attorney Ronnie Gipson for assistance with the project at (415) 692-6523 or gipson@higagipson.com.

Recap to An Active Week in US Aviation Law

          This week the aviation industry saw a lot of activity in the legal arena that could have a significant impact on general and commercial aviation.   

          First, President Obama sent his budget proposal to Congress for 2015.  In the proposed budget, the President is again seeking a $100 user fee for both commercial and general aviation flights in the National Airspace System.  The congressional leadership kicked into gear immediately sending a strongly worded letter to the President indicating that this aspect of the budget proposal would not pass.  Aviation advocacy groups such as EAA and AOPA issued statements condemning the proposal as the wrong way to fund the services provided by Air Traffic Control.  Advocacy groups reiterated that the current system of collecting excise taxes on fuel purchases is an equitable way to extract proportionate tax revenue from users of the system based on demand.  While Higa & Gipson will continue to monitor the user fee proposal, we encourage airmen and aviation business owners to reach out to their congressional representatives and unequivocally let them know that user fees are not the way to fund ATC services.   

            The second major development this week in aviation law pertains to the nascent commercial drone industry.  The FAA has banned the operation of commercial drones in US airspace until it has time to implement rules for the safe integration of commercial drones into the National Airspace System.  National Transportation Safety Board Administrative Law Judge Geraghty handed down a ruling that overturned a civil penalty imposed by the FAA against the operator of a drone on the basis that the FAA lacked the statutory mandate to impose the penalty for violation of policy guidance disseminated from the FAA and not from an official rule.  While the technology industry lauds the ruling as a step towards advancing the cause of integrating drones into the NAS, it may be too early to open the celebratory champagne.  Almost immediately, the FAA announced that it is appealing the decision to the full NTSB Board.  If the result of this appeal is still considered to be unfavorable by the FAA, then the FAA can launch another appeal to the US Court of Appeals.  Pending the appeals, Judge Geraghty’s ruling is stayed.  Thus, the ban on commercial drone use in the US airspace will continue until the issue is resolved by the appellate process. 

            There are serious ramifications for the introduction of commercial drones into the NAS without thoughtful and measured scrutiny.  For example, the appearance of a commercial drone into the flight path of a commercial jet while landing could cause the airliner to execute a missed approach, which would cost thousands of dollars in fuel costs for the extended flight time.  Then there is the obvious danger in allowing commercial drones too much leeway for operations in the NAS due to the prospect of a mid-air collision with a general aviation or commercial airliner due to an absence of certified technology that can detect the other aircraft’s presence and provide collision avoidance guidance.  These concerns all relate to the potential for significant loss of life and property damage and as such require that the FAA move forward with caution. 

            Should you have questions about the user fees proposal or the National Airspace System, then contact Aviation Attorney Ronnie Gipson at gipson@higagipson.com or by telephone at (415) 692-6520.

Airmen Can Minimize Exposure to a FAA Enforcement Action

Several times throughout the year I present a seminar to pilots titled, "Understanding the FAA Enforcement Process".  The purpose of the seminar is to educate pilots about their rights and obligations if they become involved in an enforcement action pursued by the FAA to either suspend or revoke their certificate.  In short, if an airman commits a violation of a Federal Aviation Regulation (FAR), then the FAA has the authority to revoke or suspend an airmen's certificate for that violation. There exists an administrative legal process whereby the airmen forces the FAA to prove that the violation occurred and that the sanction sought is warranted.  These administrative trials are heard by National Transportation Safety Board (NTSB) Administrative Law Judges.  Not surprisingly the process of going to trial on a revocation or suspension action is expensive and time consuming. 

Most general aviation pilots have little to no knowledge of the enforcement process.  Private Pilot & Sport Pilot training do not cover this topic.  In the absence of training, most pilots are unaware of a very useful resource that can assist them in avoiding an enforcement action altogether.  In an effort to improve safety in the National Airspace System, the federal government created the Aviation Safety Reporting System (ASRS).  Through the ASRS, an airman can submit a report, without giving identifying information, that describes an incident, operation, or procedure that could create a hazard to aviation safety.  The ASRS report is submitted to NASA, which has no enforcement authority.  NASA then redacts any identifying information and compiles the safety information for action within the National Airspace System. 

Why does this matter to GA pilots?  The answer is simple and straightforward-- if an airmen submits an ASRS form in relation to an incident that is directly related to an FAA enforcement action, then the airmen is immune to disciplinary action by the FAA.  See 14 C.F.R. section 91.25.  However, there is an exception, if the ASRS pertains to an accident or criminal activity, then the immunity does not apply. 

Allow me to demonstrate with two examples.  Recently I was flying  through Class C airspace with a VFR clearance.  I received an instruction from ATC that I did not understand.  I asked the controller to repeat the instruction twice.  The controller repeated the instruction twice, but I did not understand what she wanted me to do.  I then explained that I did not understand and the controller amended her instruction and told me to fly a heading.  During the time that our communication exchange occurred it is possible that I may have flown too close to aircraft being sequenced for landing at the Class C airport.  I don't know.  To protect myself, I filed an ASRS to identify the problem...namely the use of language and phrasing by ATC with a VFR pilot that was confusing.  Should the FAA seek to pursue any type of enforcement action against me, I am immune from any sanction because I voluntarily reported the incident to NASA. 

Now consider an instance where the airmen would not get the benefit of the ASRS immunity.  Earlier this month a private jet crashed while attempting to land in Aspen, Colorado.  If the surviving first officer were to file an ASRS form pertaining to the accident, then NASA would be obligated by law to share the identifying information with the FAA and the airmen would not get the benefit of the immunity policy.  Remember, criminal activity and the occurrence of an accident will prohibit the airman from being eligible to claim the protection of the immunity policy.

There exists more information about the ASRS form and the immunity policy.  If you are contacted by the FAA in relation to an enforcement action, then call Ronnie Gipson at (415) 692-6523 or email him at Gipson@higagipson.com to discuss whether or not you can utilize the ASRS form to avoid suspension or revocation of your certificate.