Which is a greater infringement, commercial use of drones or the FAA's overreach?

Which is a greater infringement, commercial use of Drones or the FAA’s overreach?

Right here from the start, I am not an attorney so consult with an attorney if you plan on taking any action on what I am writing about in this blog. Three years ago I had a couple of conversations with Jim Williams from the FAA Unmanned Division. At the time it was put out that commercial operations of unmanned aerial systems would be authorized as long as the business owner himself were operating the device. As a California licensed Real-Estate/mortgage Broker, insurance and securities licensed agent I knew a little bit about property and business ownership and I called Mr. Williams and let him know that under the law a business owner doesn’t have to drive or even own trucks to run a trucking company or a charter airline company either so I asked “Where is the law that requires a business owner to operate the equipment used for his business? Can’t he contract operators to do that?” He got stymied and asked me to call him back and I did and he then agreed that lease ownership would in fact be considered ownership and he informed me that the UAV pilot would have to be an employee of the company and I asked “Can they be a contract employee?” He again became flustered and I could never get him on the phone again after that. Then is came out the FAA would suspend all commercial use of Unmanned operations.

At the time I was trying to sell a system, I worked for that company for a year and a half and then I became an independent contractor, lining up contracts for Unmanned Aerial Systems (UAS). I talked with all kinds of people in Ag consultants and crop scientist, surveyors and stumbled unto applications for oil and gas exploration and food safety that I never knew about. Then after a year I lost the consulting contract for the major reason, the FAA still wasn’t allowing for commercial UAS operations.

I’m not alone but there are still commercial UAS operations going on. How are they doing it? I had a conversation with an industry professional who was also a Police helicopter pilot. He told me “They FAA came to my house to shut me down, they were wearing suits, they looked like the ‘Men in Black’. They told me that they were shutting me down. I asked them if I could talk with them with my attorney present and they agreed. Then we sat down with them and discussed how there is no law banning the commercial use of UAS and if the government were going to shut me down then they needed to pay me at years lost wages which I figure amounts to $250,000. They sat there silent. I’ve got the best law firm in the country. If you need any help, let me know.”

There have been two rulings early this year one judge hearing a case in Georgia dealing with a tethered quad-rotor where the local FAA gave authorization and the Federal FAA tried to get them to resend it but they wouldn’t do it in writing so they went to court and the judge ruled that the FAA doesn’t have the authority to recant their own authorization. Now there is the 1981 guidelines for hobby craft but that wasn’t a law either, just a guideline and it does say “Commercial use is unauthorized”. The second ruling was for the foreign UAS pilot filming in North Carolina where the judge ruled that “The FAA cannot enforce laws that haven’t been written yet”.

Since then a UAS pilot who has been doing search and rescue missions for ten years has taken the FAA to court with same attorney who received the favorable ruling in the North Carolina case, which is in appeal. The attorney Brendan Schulman is no dummy, the FAA is trying claim precedent “Chevron deference” where the EPA claimed authority to fine Chevron in the name of public safety where congress hadn’t passed legislation one way or the other because they don’t have the scientific understanding enough to determine if there is a danger to the public so they defer to the government agency that oversees that industry. Well neither the EPA nor the FAA has the right to regulate commerce. By FAA publishing their guidelines for RC use of unmanned hobby flight they have basically established the commercial rule for UAS. Chevron deference or not, if it is safe enough to do as a hobby or recreation it is safe enough to do commercially.

I do like the pilot in charge where a licensed pilot is accountable for commercial operations, so if someone is flying over private property without authorization, someone has their license on the line. The pilot in charge doesn’t have to be the pilot but they are accountable for their UAS pilots’ actions and training. I think it would be an awesome business for some of these airline pilots to make extra money. They could hire out a bunch of military UAV pilots, train them and establish operational procedures, emergency protocols and operational responsibilities to be briefed before every mission, just like they do in the military, for everything.

All of this ado about sense and avoid technology, isn’t necessary as long as the mission is planned and the plan and procedures are adhered to. No as someone pointed out in a blog “If commercial airliners are flying below 400 feet, it’s not the UAS pilots fault if they collide.” If in the event that they start automating commercial airlines like they do the military’s Osprey, then I think sense and avoid should be required.

This is just common sense.