Wiley Rein Point Man ‘Skeptical’ FAA Drones NPRM Will Come Out September
The Federal Aviation Administration has indicated in recent weeks it expects by September to publish its long-awaiting NPRM on commercial operation of small drones, and that it will be “a multiyear process from beginning to end,” Mike Senkowski, who heads the new unmanned aircraft systems (UAS) practice at the Wiley Rein law firm in Washington, told a Law Seminars International tele-briefing Monday. However, Senkowski personally is “skeptical” that the FAA’s September time frame is “realistic,” he told us in a Tuesday email.
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The NPRM has remained on the shelf for five years after a UAS aviation rulemaking committee (ARC) report that gave the FAA a “comprehensive set of recommendations” for the “regulatory development” of small drones. CEA recently has joined with the aerospace industry in urging the FAA to speed the NPRM along on the grounds that “American entrepreneurs and businesses cannot realize the tremendous benefits and efficiencies” of small UAS until proposed rules move forward (CD March 28 p16).
But Senkowski has his doubts the FAA will be able to pull off issuing the NPRM by September, “given the realities of the process for getting an NPRM out of the FAA,” he told us. Not only does the FAA need to finalize the item and then circulate it to the Department of Transportation and the Office of Management and Budget for approval, but “consequently, the NPRM could get blocked or delayed for reasons outside of the FAA’s own control,” Senkowski said. “In fact, our understanding is that this happened in the past to the 2009 ARC recommendations. Hence the lengthy delay from recommendations to the present.” FAA representatives didn’t immediately comment.
Senkowski thinks the NPRM will need to address the spectrum requirements for next-gen small commercial UAS, he told the tele-briefing. Today’s recreational model aircraft use unlicensed spectrum, he said. “That’s good as long as you have line of sight and short range,” up to 700 meters, he said. “Going beyond that, however, will require additional spectrum for command and control. Spectrum allocated globally for UAS deployment at the last ITU World Radiocommunication Conference in 2012 likely won’t be enough, he said, so the push will be on for more spectrum at the next WRC, which is scheduled for November 2015 in Geneva.
It used to be thought that the privacy issues of commercial deployment of small drones would fall under the FAA’s jurisdiction, Senkowski said. “But our understanding is that the NPRM will not undertake privacy, and that privacy instead will be looked at” by the NTIA “as part of a multi-stakeholder process,” he said. “That’s not yet been announced, but that’s the idea.” NTIA is the “spectrum manager” for the U.S. government and telecom “policy adviser” for President Barack Obama, he said. “But NTIA has had in the past privacy multi-stakeholder events, developing best practices and codes of conduct. It’s envisioned that will be a starting point for looking at the privacy issues associated with small UAS.” NTIA representatives didn’t immediately comment. NTIA currently is running a privacy multi-stakeholder process for the commercial use of facial recognition technology. Its goal is to develop “a voluntary, enforceable code of conduct that specifies how the Consumer Privacy Bill of Rights applies to facial recognition technology in the commercial context,” says NTIA’s website (http://1.usa.gov/1ev31lr).
Amazon’s recent petition to test commercial drones on its Seattle property (CD July 15 p8)typifies some recent requests seeking Section 333 exemptions under the FAA Modernization and Reform Act of 2012, Senkowski said. Under Section 333, Amazon’s petition said, Congress directed the FAA “to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system” and gave the FAA power to grant innovators “expedited operational authorization” to do so. Senkowski declined comment when we asked about Amazon’s chances of winning an exemption amid public comments from FAA officials in May that the agency would give preferential treatment to waiver requests in the fields of agriculture, flare stack inspections and filmmaking. Amazon is a Wiley Rein client and has “a strict rule barring their counsel from providing any comments on Amazon filings,” Senkowski told us in an email.
However, another attorney on the tele-briefing, Brendan Schulman, of the New York law firm Kramer Levin, without mentioning Amazon’s petition by name, said the FAA has no clear track record on its process for granting Section 333 exemptions. “The FAA has always been receptive to exemption applications,” he said. “People have tried to do it. There was a company two years ago that filed an exemption application for filmmaking and aerial photography, and never heard back from the FAA. So it’s really hard to tell with that process because there’s no specific list of criteria. What criteria are you supposed to meet when there isn’t a set list of parameters?” Schulman said he hopes Section 333 exemptions are “a path forward for the various industries that you've heard about. I know there have been a number of applications. To me that would that would mark progress if we can get some of these commercial applications and use opened up. It would be a great benefit to the country.”