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  • Problems with Mandatory Drone Registration

    November 23, 2015 12:59 PM

    On Saturday, the Unmanned Aircraft System (UAS) Registration Task Force issued its recommendations on a mandatory UAS registration proposal. The report is available here. On October 19, the task force was announced by Transportation Secretary Anthony Foxx and Federal Aviation Administrator (FAA) Michael Huerta. A Federal Register notice followed on October 22. The Competitive Enterprise Institute (CEI) filed comments on November 6.

    The recommendations aren’t particularly surprising, as many of the details had been leaked in prior weeks. The main recommendations from the task force are:

    • All UAS with a maximum takeoff weight of less than 55 pounds and more than 250 grams (8.8 ounces) that are operated outdoors in the National Airspace System (NAS) must be registered.
    • Registration is owner-based and each owner will have a single number, allowing the owner to register any and all UAS that he or she owns.
    • Registration will be required prior to operation, not at point-of-sale.
    • Registration must include the owner’s name and street address. Mailing address, email address, telephone number, and serial number of the UAS are optional.
    • There is no citizenship requirement.
    • The registrant must by at least 13 years of age.
    • There is no registration fee.
    • Registration will be Web-based, with an API that will allow for the development of third-party apps to be used by registrants.
    • Registrants will receive a certificate of registration electronically or through the mail if a paper copy is requested. The certificate will contain the registrant’s name, identification number, serial number if provided by the registrant, and a link to an FAA website for authorized users to verify registration. Operators must be able to produce their certificate to authorities whenever their UAS is in operation.
    • Registrants must affix their registration number to the UAS, unless they provided the FAA with their UAS serial number(s). Markings must be accessible without the use of tools and be legible upon close visual inspections.
  • Government Submits TSA Body Scanner Final Rule Schedule to Court

    November 23, 2015 11:46 AM

    On October 23, 2015, the U.S. Court of Appeals for the D.C. Circuit ordered the Department of Homeland Security to produce a schedule for final rule publication on the Transportation Security Administration’s (TSA) use of body scanners in airports. This order was in response to a lawsuit filed in July 2015 by the Competitive Enterprise Institute (CEI)—along with the National Center for Transgender Equality, The Rutherford Institute, and two CEI employees (former President Lawson Bader and me, Marc Scribner)—asking the court to compel the TSA to produce its final rule on body scanners. For years, the TSA had been flouting the federal Administrative Procedure Act and a court order requiring it to complete a notice-and-comment rulemaking process. On the morning of November 23, the government submitted its court-ordered final rule schedule.

    According to the government’s court filing, here is the body scanner final rule timeline:

    • November 9, 2015—TSA submitted the draft final rule to the Secretary of Transportation.
    • November 19, 2015—The Secretary of Transportation completed his review and transmitted the draft final rule to the White House’s Office of Management and Budget (OMB).
    • February 18, 2016—The deadline under Executive Order 12866 for OMB to complete its review of the draft final rule and return to the TSA for publication planning.
    • March 3, 2016—The date the government expects to publish the final rule in the Federal Register.
  • Court Rules against Government in TSA Body Scanner Case

    October 23, 2015 2:05 PM

    Earlier today, the U.S. Court of Appeals for the D.C. Circuit ruled against the government in CEI’s challenge to the Transportation Security Administration’s (TSA) illegal body scanner policy. CEI, joined by the National Center for Transgender Equality and the Rutherford Institute, filed a mandamus petition in July asking the court to compel the TSA to produce its final rule on body scanners within 90 days.

    When the TSA began deploying body scanners as the primary screening method back in 2009, it failed to conduct a notice-and-comment rulemaking as required by the Administrative Procedure Act (APA). In 2010, the Electronic Privacy Information Center (EPIC) filed a lawsuit alleging, among other things, that the TSA was in violation of the APA. In July 2011, this same panel on the D.C. Circuit ruled in favor of EPIC and ordered the TSA to “promptly” complete the required rulemaking it should have completed before deploying the machines. Unfortunately, the TSA has still yet to produce the required final rule, which is what motivated this latest legal action.

    After years of TSA thumbing its collective nose at the court order, the D.C. Circuit today ordered the TSA to produce a final rule schedule within 30 days. We believe that the agency has finally been brought to heel and greatly appreciate the court’s decision.

  • Is a Drone Registration Mandate Illegal?

    October 19, 2015 2:22 PM

    Today, the Department of Transportation announced the creation of a task force to develop recommendations for a national drone registration mandate. Transportation Secretary Anthony Foxx stated that he wants the task force to develop their recommendations by mid-November, with the mandate coming into force sometime in mid-December. Secretary Foxx also said that the mandate will apply to all unmanned aircraft systems. Drone lawyer Jonathan Rupprecht has a post on the practical and legal issues of creating and enforcing a registration regime. I’d like to highlight two problems raised by Rupprecht.

    If Foxx is accurate, the Federal Aviation Administration will likely be in violation of two different federal laws: the FAA Modernization and Reform Act of 2012 and the Administrative Procedure Act.

    First, in the 2012 FAA reauthorization, Congress included a provision (Section 336) that reads, in part:

    Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft

    Congress clearly intended to protect unmanned aircraft system hobbyists whose model aircraft meet the criteria contained in Section 336, as even the FAA appears to note in its interpretation of Section 336. FAA Administrator Michael Huerta claimed the FAA has existing safety authority to mandate drone registration, but it remains to be seen how the agency can evade Congress’s clear intentions.

  • Drone Policy Update: FAA Proposes $1.9m Fine, 3 More Bills Vetoed in California, and More

    October 6, 2015 2:01 PM

    FAA PROPOSES RECORD FINE FOR UNAUTHORIZED UAS OPERATIONS: On October 6, the Federal Aviation Administration (FAA) announced it was proposing a $1.9 million civil penalty against SkyPan International, a Chicago-based aerial photography company. FAA alleges that SkyPan conducted 65 unauthorized commercial UAS flights over Chicago and New York City between 2012 and 2014.

    Of these, 43 are alleged to have taken place in New York’s Class B airspace. Class B airspace is reserved for the areas around high-traffic airports, and is subject to the most onerous rules among all airspace classes. Basically, flying in Class B airspace without direct authorization from air traffic control is a big no-no.

    The SkyPan case is by far the largest civil penalty proposed by FAA for unauthorized commercial UAS flights, as has been reported. It is also the only civil penalty proposed so far for unauthorized commercial UAS operations. FAA previously proposed a modest $10,000 penalty for reckless operation in the famous Pirker case. FAA eventually settled with Pirker earlier this year for $1,100. Each violation can result in a civil penalty of up to $25,000 under 49 U.S.C. § 46301, but 65 times $25,000 does not add up to $1.9 million.

    FAA also notes that in all 65 cases, SkyPan operated without an airworthiness certificate or Certificate of Waiver or Authorization, so perhaps this explains the discrepancy. Further, as Brendan Shulman (who represented Pirker) has noted, FAA usually can only administratively assess civil penalties up to $50,000, with an enforcement action seeking anything greater needing to be filed in a federal district court (49 U.S.C. § 46301(d)(4)). It will be interesting to read the enforcement letter.

    3 MORE CALIFORNIA UAS BILLS VETOED: On October 3, California Gov. Jerry Brown vetoed three UAS bills, all from Sen. Ted Gaines. SB 168 would have explicitly outlawed UAS interfering with firefighting operations (scare story citation). SB 170 would have explicitly outlawed UAS flying over prisons and jails (scare story citation). SB 271 would have criminalized flying over public schools and taking pictures.

    These bills were all poor solutions in search of problems. But what makes Gov. Brown’s vetoes even stronger is his explanation, which should warm the hearts of opponents of overcriminalization and mass incarceration.

    Here is his full veto statement: “Each of these bills creates a new crime—usually by finding a novel way to characterize and criminalize conduct that is already proscribed. This multiplication and particularization of criminal behavior creates complexity without commensurate benefit. Over the last several decades, California's criminal code has grown to more than 5,000 separate provisions, covering almost every conceivable form of human misbehavior. During the same period, our jail and prison populations have exploded. Before we keep going down this road, I think we should pause and reflect on how our system of criminal justice could be made more human, more just and more cost-effective.”

    Gov. Brown has emerged as a leader on drone policy, rejecting the baseless fearmongering common among some legislators and members of the public. Earlier, Gov. Brown vetoed a deeply flawed bill that would have greatly restricted legitimate and safe UAS operations. Other governors would be wise to follow his lead.

  • Drone Policy Update: California Bill Vetoed, New Model Aircraft Guidance, and More

    September 14, 2015 11:27 AM

    CALIFORNIA UAS BILL VETOED: On September 9, California Gov. Jerry Brown vetoed Senate Bill 142 that would have imposed trespass liability on unmanned aircraft system (UAS) operators who fly less than 350 feet above another’s private property. While aimed at preventing invasions of privacy, such a law would have not only greatly restricted UAS operations (the Federal Aviation Administration (FAA) currently prohibits operators without special permission from flying more than 400 feet above ground level; more on this below), it would have subjected operators and the state to an enormous volume of litigation. The bill was strongly opposed by the UAS industry, hobbyists, press organizations, and others. Kudos to Gov. Brown. To be sure, there are privacy challenges associated with the rise of UAS technology, but ham-fisted approaches such as the one contained in SB 142 risk doing far more harm than good. My forthcoming CEI whitepaper on UAS myths and facts addresses these issues and more.

    MODEL AIRCRAFT GUIDANCE: On September 2, the FAA cancelled Aviation Circular (AC) 91-57, Model Aircraft Operating Standards. AC 91-57 had been voluntary guidance since 1981, and recreational UAS operators had increasingly demanded a badly needed update. In its place, the FAA released AC 91-57A pursuant to the FAA Modernization and Reform Act (FMRA) of 2012 that conformed the new guidance to the evolving hobbyist UAS market. Changes include a weight limit of 55 pounds and an ability to fly as close as five miles from an airport without notifying the tower or airport operator (AC 91-57 imposed a three-mile limit). One major difference in spirit between ACs 91-57 and 91-57A is that the FAA no longer describes its guidance as a set of voluntary best practices. While UAS hobbyists are likely to appreciate the clarity from an AC that isn’t nearly 35 years old, AC 91-57A does impose new restrictions that did not exist in the previous AC.

  • Did North Dakota Just Authorize Pepper-Spraying Police Drones?

    August 27, 2015 1:26 PM

    The Daily Beast’s Justin Glawe has written an article about a North Dakota law aimed at limiting law enforcement use of unmanned aircraft systems (UAS), or drones. He claims that the law was watered down by police interests and corporate lobbyists, and that the weakened protections now authorize law enforcement’s use of non-lethal UAS-mounted weapons:

    With all the concern over the militarization of police in the past year, no one noticed that the state became the first in the union to allow police to equip drones with “less than lethal” weapons. House Bill 1328 wasn’t drafted that way, but then a lobbyist representing law enforcement—tight with a booming drone industry—got his hands on it.

    The bill’s stated intent was to require police to obtain a search warrant from a judge in order to use a drone to search for criminal evidence. In fact, the original draft of Representative Rick Becker’s bill would have banned all weapons on police drones.

    Then Bruce Burkett of the North Dakota Peace Officer’s Association was allowed by the state house committee to amend HB 1328 and limit the prohibition only to lethal weapons. “Less than lethal” weapons like rubber bullets, pepper spray, tear gas, sound cannons, and Tasers are therefore permitted on police drones.

    Scary stuff, right? I certainly don’t want the police to have armed UAS—whether they be deployed with lethal or non-lethal weapons—and requiring warrants is a good first step. But based on a reading of the statute in question, it does not appear to do what Glawe and others claims it does.

  • "Flypocalypse" Shows Air Traffic Control Too Important to Be Left to FAA

    August 18, 2015 8:59 AM

    This past Saturday, hundreds of flights were delayed or canceled due to an air traffic control software glitch in the Washington, D.C. area. Naturally, #flypocalypse began trending on Twitter. Initially, the Federal Aviation Administration denied reports that their brand-new En Route Automation Modernization (ERAM) system was responsible. Yesterday, FAA officials admitted ERAM was the culprit.

    ERAM is a critical component of the FAA’s NextGen air traffic control modernization program. In theory, it offers greatly improved communications, flight tracking, and controller display functionality, replacing a legacy system designed in the 1980s. But the FAA’s deployment of ERAM, like many NextGen components, has been plagued by serious problems.

    Back in May, I noted that the FAA had just completed ERAM deployment—five years late and hundreds of millions of dollars over budget. Around the same time, the National Research Council issued a damning report of the FAA’s ongoing NextGen deployment failures. The Washington Post’s Ashley Halsey highlighted some choice quotes from the NRC report:

    • “The original vision for NextGen is not what is being implemented today.”
    • “This shift in focus has not been clear to all stakeholders.”
    • “Airlines are not motivated to spend money on equipment and training for NextGen.”
    • “Not all parts of the original vision will be achieved in the foreseeable future.”
    • “NextGen, as currently executed, is not broadly transformational.”
    • “‘NextGen’ has become a misnomer.”

    The latest ERAM failure and resulting flight disruptions once again shows that the FAA cannot be trusted to deliver on NextGen. But air traffic modernization problems extend beyond the bungled NextGen rollout.

  • CEI Sues TSA for Violating Federal Law and Court Order on Body Scanners

    July 16, 2015 1:15 PM

    Yesterday, July 15, 2015, CEI filed a petition for writ of mandamus with the D.C. Circuit Court of Appeals. Our suit requests the court enforce its July 15, 2011, decision that found the TSA’s deployment of body scanners in violation of the Administrative Procedure Act. The 2011 court ordered the TSA to “promptly” open a rulemaking proceeding and produce a final rule. Yesterday was the four-year anniversary of the court order and we still do not have a final rule to evaluate and potentially challenge. In fact, given that TSA has been rolling out body scanners since 2007, they have been violating the APA for eight years.

    Other than CEI, petitioners are the National Center for Transgender Equality, The Rutherford Institute, CEI President Lawson Bader, and yours truly, in our capacity as private individuals. CEI’s attorneys are representing the petitioners.

    Our primary interest in this case is ensuring the TSA is forced to follow the law. However, results of a classified Department of Homeland Security Inspector General audit were leaked to and publicized by ABC News on June 1. The failure rate was an astounding 96 percent. So, not only is the TSA violating the law by deploying these machines, the machines likely don’t even work as advertised, as we and others have alleged in the past.

    So far, USA TodayThe Washington ExaminerReason magazine have covered the lawsuit, with a small blurb in The New York Times.

    The summary of our argument can be found here. The full complaint is here. For more from CEI on TSA’s illegal body scanner policy, see our 2013 comments to the agency and a 2012 op-ed by former American Airlines CEO Robert L. Crandall and myself summarizing our amicus brief in EPIC v. DHS.

  • New Tax Foundation Report Endorses PFC Modernization

    May 11, 2015 2:16 PM

    The Tax Foundation today released a new report, “Improving Airport Funding to Meet the Needs of Passengers.” Authored by Tax Foundation economist Alan Cole, the report notes that airport funding and financing in the U.S. is skewed against the users-pay principle and that the passenger facility charge (PFC) represents a welcome alternative to federal airport cross-subsidization schemes.

    The PFC is a local user charge that airports can use to fund or finance a narrow class of improvements, as permitted by the Federal Aviation Administration. The PFC has been capped at a maximum of $4.50 per enplanement since 2000. Inflation has eroded that buying power by about half. CEI, along with airports and other aviation industry stakeholders, supports increasing the cap to $8.50 and then indexing it to inflation. In the report, Cole endorses this position, writing, “The current $4.50 cap should be modernized and indexed to meet the needs of today and future growth.”

    Some have incorrectly labeled the PFC a tax. As I explain in detail here, it is not a tax and raising the federal cap on PFCs certainly cannot constitute a tax increase.

    The report goes on to say that harnessing local user fees such as PFCs can allow airports to eventually wean themselves off federal funding. The major reason CEI supports PFCs, and all transportation system user charges, over taxes is that, as Cole notes in his report, they resemble charges you would see if these were private, market institutions.


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