According to the International Air Transport Association, 2014 was a record year for global air travel.  A record 3.3 billion passengers were carried over the course of the year with passenger demand growing by ten percent.  Every continent saw increases, with Asia and the Middle East seeing the most robust growth.  While African airlines did not have a stellar year, they at least saw some low growth at .9 percent.

There a clearly several reasons why the accidents of 2014 have not had an impact on the public’s willingness to fly.  First, the same unique circumstances surrounding MH 370 and MH 17 that made them such great media circuses also make them less worrisome to the average traveler.  People look at them as “one-off” events that are unlikely to happen again.  Second, since most of them have involved Asian airlines, travelers in the rest of the world are more likely to consider these accidents anomalies, unique to those airlines, that won’t affect them.  Third, although last year was not a very good year, many people still remember the “bad old days” of the mid 1960s to the late 1990s, when fatalities were often two to three times what they were in 2014.  Last year does not seem so bad by comparison.

Finally, and most importantly, if you look just at the number of accidents, 2014 was actually one of the safest years on record.  The number of commercial aviation accidents worldwide has been steadily declining since the mid-1990s, and last year fit squarely into this continuing downward trend.  The traveling public is aware of this overall trend, and for now, is apparently willing to take last year in stride. 

While 2015 is not off to a great start, hopefully the rest of the year will be a safe one, and air commerce will be able to continue to drive growth in the global economy. 

“There are lot complexities here,” Ellman says. “My approach to balancing the opportunities and challenges presented by drones has been to bring innovators and policymakers — communities that have very little in common — together. Policymakers need to learn about the capabilities and risks of the technology and only innovators can provide that knowledge.”

Click here to read the full article.

The only problem with DJI’s good intentions is that the update, which they characterize as “mandatory,” is anything but.  The only one who has authority to make something like this mandatory is the FAA.  Now we concede that DJI may treat it as mandatory, not to mention sensible, but they have no way to insure that the owners of the thousands of DJI aircraft already being flown comply with what they think is either mandatory or even sensible.

Plane-ly Spoken suggests that this is a great example of why the small UAS NPRM, which we all await, should, irrespective of the apparent disagreement between DOT and OIRA,  address “operating standards for model aircraft and low performance (e.g. toy)” such as this operation [Link].  Regulation is the only means to mandate that a software restriction be hard-wired into drones like the DJI aircraft.  ”Recommend” is good. “Mandate” is better.

All of us hope that this quadcopter crashing on the White House grounds was an anomaly.  Unfortunately, the number of reported encounters between aircraft/helicopters and drones suggest this is not the case.

While the outcry from the recreational/hobbyist community is probably going to increase if the NPRM covers either their operations or the aircraft they fly, common sense should tell everyone it’s the only responsible way of proceeding.  The recreational/hobbyist community ought to recognize this and turn its attention to cracking down on members of its own community who have created the need for such a regulatory approach.  This is a classic case of the few ruining it for everyone else.   

The Malaysian Government’s declaration that the loss was the result of an accident has real significance, as it is ”a move that will open the way for the victims’ family members to receive compensation.” [Link] As we have observed previously, the parameters of that compensation are governed by the Montreal Convention [Link] which covers international air transportation and to which Malaysia is a signatory.

Malaysia Airlines, based upon the Malysian Government’s statement, has indicated that it will now proceed to pay compensation “in accordance with applicable laws.”  We would read that as being in accordance with applicable international agreements and, to the extent those agreements mandate the use of local laws, the laws of the various countries of citizenship of the victims, including China.

While all of us hope that ultimately there are some real answers regarding what happened and that we can put the speculation to rest, moving forward with the payment of compensation is reason for some optimism that progress is being made.  It won’t bring closure to the families, but it may, hopefully, assist them, to some degree, in coping with the loss.

It has been reported that some of the families find the determination of an accident unacceptable since it brings a measure of finality to the hope many of them harbour that their loved ones are still alive.   Plane-ly Spoken respectfully disagrees.

Some news, however limited, in the context of MH370, is still good news.

In an interesting turn of events, there is a different summary of the NPRM in the Department of Transportation’s January Report on Significant Rulemaking.  That document contains the following, very brief description of the rule:

 Abstract: This rulemaking would adopt specific rules for the operation of small unmanned aircraft systems (sUAS) in the national airspace system. These changes would address small unmanned aircraft registration and marking, certification of their airmen, and operational requirements and limitations in order to increase the safety and efficiency of the national airspace system.

This description is obviously worded quite differently than the OIRA version, and does not make any reference to model aircraft.

So, now you readers know as much as we do.  The OIRA website’s description of the regulation continues to include model aircraft.  The DOT’s website contains different information that does not include any reference to model aircraft.

Plane-ly Spoken is continuing to investigate, and we will update you as we get more information.

UPDATE – JANUARY 30 AT 7 PM

The FAA has provided Plane-ly Spoken with an official statement making clear that the information on the OIRA website is incorrect, and the Small UAS NPRM will not regulate model aircraft.  The following is the complete text of the statement:

It has come to our attention that in December 2014, the www.reginfo.gov site was updated with incorrect information stemming from the 2014 Fall Unified Agenda and Regulatory Plan regarding the scope of the FAA’s small unmanned aircraft systems rulemaking action. The FAA is working to correct these errors.  For up to date information regarding the scope and timing of this rulemaking, please refer to the DOT Significant Rulemaking Report available at www.dot.gov/regulations/report-on-significant-rulemakings.  All model aircraft operators are required to operate in accordance with the statutory requirements for model aircraft operations set forth in  section 336 of the FAA Modernization and Reform Act of 2012.  For more information on these requirements, please review the do’s and don’ts for model aircraft operations.

We are pleased to have been able to get to the bottom of this issue for our readers.

The FAA is proposing to amend its regulations to adopt specific rules for the operation of small unmanned aircraft systems (sUAS) in the National Airspace System (NAS). These changes would address the classification of sUAS, certification of sUAS pilots and visual observers, registration of sUAS, approval of sUAS operations, and sUAS operational limits. The NPRM also proposes regulations for all sUAS, including operating standards for model aircraft and low performance (e.g., toy) operations, to increase the safety and efficiency of the NAS. The FAA and sUAS community lack sufficient formal safety data regarding unmanned operations to support granting traditional, routine access to the NAS. This proposed rule would result in the regular collection of safety data from the user community and help the FAA develop new regulations and expand sUAS access to the NAS.

Yes, you read that right: the NPRM is going to propose operating standards for model aircraft and toy operations, in addition to commercial use of UAS. It will be interesting to see how the FAA positions these new regulations in light of the Congressional carve-out for hobbyists. In 2012, Congress added the following language to Section 336 of the FAA Modernization and Reform Act:

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 . . . .

That statute also goes on to state that “nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.” It was on this basis that the FAA stated that it will apply the prohibition against “careless or reckless operation of an aircraft under 14 C.F.R. § 91.13 to model aircraft and would bring civil penalty actions against unsafe operators.

It is possible that the reference to “standards for model aircraft” could be a system to create additional voluntary standards and not formal regulatory requirements. On the other hand, the summary also makes ominous reference to a lack of information that would warrant “traditional, routine access to the NAS,” implying that something more drastic is possible. Whichever it is, the new language makes clear that the federal government views this rulemaking as the first step in an iterative UAS policymaking process on model aircraft. A key goal is the regular collection of safety data from the user community so that the FAA can continue to develop refine the regulations and expand access to the national airspace over time.

If you’re a hobbyist or hobbyist organization, now is the time to get involved. While the rule is under review at OIRA, stakeholders have a continuing opportunity to meet with the White House to talk about its interests in the rule. And once the FAA is published, the entire UAS community will have the further opportunity to offer comments. Given the intense interest, we trust the FAA will receive upwards of 100,000 comments.

We can help. Contact us to make your voice heard.

Most people are completely unaware that on any given day, there are a number of “no-fly” zones in the United States.  Some of these areas are permanent, and some are temporary.  Flying in these zones can be a very serious matter.  If the zone has been designated National Defense Airspace then, in addition to a civil penalty, the flight is a crime and can get the pilot up to a year in jail.  The problem for most people is finding out where these restrictions are, as most are not very well publicized.

The FAA’s NOTAM (Notice to Airmen) system is the best way to find both the temporary and permanent restrictions.  To help get you started, here is a list of some of the more significant restrictions currently in place.

The Washington, DC Flight Restricted Zone:  This is probably the most significant no-fly zone given its size and location.  The zone covers a circle (with some exceptions) with a radius of 15 nautical miles around Reagan National Airport, and all flights of UAS or model aircraft are specifically prohibited.  This means that areas as far north as Rockville, MD and as far west as Tyson’s Corner, Virginia are within the zone. 

The Disney Theme Parks:  A 3 nautical mile circle around both Disneyland and the Magic Kingdom in Walt Disney World have been designated as National Defense Airspace.  Under the NOTAMs, both of which were updated recently to specifically include a prohibition of all UAS operations, no aircraft can operate below 3000 feet in these areas.   

Stadiums on Game Day:  An area 3 nm around any stadium hosting a “regular or post season major league baseball, national football league, or NCAA division one football game,” as well as any “NASCAR sprint cup, Indy car, and champ series races,” is considered National Defense Airspace.  The flight restrictions start one hour before the scheduled time of the event, and end one hour after the event has ended.  

Super Bowl XLIX:  While the Super Bowl obviously falls under the scope of the above NOTAM as a post season NFL game, given the importance of the event, the FAA has issued a number of additional restrictions.  No aircraft are permitted within 10 nautical miles of the stadium between 3:25 PM and midnight.  In addition, only flights arriving or departing local airports are permitted within 30 nautical miles.  As a result, no UAS or model aircraft can be flown within 30 nautical miles of the stadium before or during the game.   In case you think they aren’t serious and you are planning on taking your UAS to a tailgate party, the notice specifically warns that the “United States Government may use deadly force against the airborne aircraft, if it is determined that the aircraft poses an imminent security threat.”

Of course, just because you are away from sensitive areas and concentrations of people, there are still significant restrictions to be aware of, such as the blanket ban on UAS operations at all National Parks.  So, before you fly, you should make an effort to ensure that you know of all of the flight restrictions in your area.  If you don’t, it could be your UAS that is on the cover of every major newspaper in the country.  

We have received several nominations from our readers.  While all were worthy of consideration, none matched the statements made, on the record, by a federal judge in New York.

Plane-ly Spoken was tempted to limit consideration for the award to only plainly spoken words associated with aviation.  After all, we are focused on all things aviation.  However, we kept getting drawn back to Judge Duffy’s statements directed to a government lawyer appearing in his court as embracing the very essence of the being plainly spoken.

At a hearing in a criminal case, United States v. Little, Judge Kevin Duffy, on December 4, 2014, made the following statements to the lawyer representing the United States:

   “… On the front hall of the Department of Justice is engraved the whole section of United States against Berger [United States of America v. Richard I. Berger] about how the job of the Justice Department is to see justice is done.  Justice is founded in truth.

Most of the time the judges of this court depend upon the U.S. Attorney’s office to tell the truth.  I have now caught you flat-out in a lie.  I want you to know that. I would prefer henceforth that you advise your superiors that you are not to come to this court alone, you are to come with supervision.  If they don’t mind you lying, then the whole office is going to pay for it.  I have made known to the other judges of this court my findings in connection with you, sir.”

  . . . . . . . .

” . . .  You are playing games with me, but I caught you. You’re not going to get away with it.  That’s all there is to it.  You can talk from now until Sunday and try to spin out some story, but as far as I’m concerned, you’re branded as a liar and you will remain a liar for the rest of your life.  That’s that…

“…By the way, I would recommend that you read the quote from Berger that [is] in the front hall of the Justice Department.”

While not related to aviation, there is nothing left to say after such plain speaking. 

And so, to The Honorable Kevin Duffy, we award The 2014 Plane-ly Spoken Award.

Instead, the matter took on a life of its own and became intertwined with the hopes of hobbyists, the dreams of would-be small businessmen, and the mythology of model aircraft.  The case then went on to have a major impact on UAS policy and enforcement efforts when Administrative Law Judge Patrick Geraghty inexplicably ruled that UAS are not aircraft and the FAA has no authority to punish anyone who carelessly or recklessly flies a UAS.

This ruling resulted in a seven month detour to the National Transportation Safety Board for an appeal.  The NTSB rejected the ALJ’s reasoning, and held that all UAS and model aircraft are “aircraft” as that term is used in the Federal Aviation Regulations, and that under 14 C.F.R 91.13, anyone who is guilty of careless or reckless operation of a UAS can face substantial fines. 

After the loss before the NTSB, a great deal was written by others about how the ruling was limited in scope, and that there were still many arguments to bew made on why the FAA has no jurisdiction to regulate commercial UAS operations.  While bluff and bluster plays a role in litigation, at the end of the day, it appears that Mr. Pirker felt he had no choice but to settle. 

Going forward, an examination of the amended FAA Order of Assessment is instructive to show the types of conduct that warrant a civil penalty.  According to the FAA, Mr. Pirker was engaged in a commercial operation at the time of the violation and did not have a private pilot’s license.  In addition, he deliberately operated his aircraft:       

• through a tunnel containing moving vehicles, 
• within approximately 50 feet of numerous individuals,
• within approximately 20 feet of an active street,
• under an elevated pedestrian walkway and above an active street,
• directly towards a two story building below rooftop level and made an abrupt climb in order to avoid hitting the building.

The FAA found that these acts violated 14 C.F.R. 91.13 and constituted careless or reckless operation of an aircraft so as to endanger the life or property of another.

This list of actions seems relatively tame when compared with some of the more flagrant violations and reports of near-misses filling the pages of the newspapers on a daily basis.  It amply demonstrates what Plane-ly Spoken has been saying for a while now.  The FAA is gearing up for a major enforcement push, and it is going to impose a high standard of safety.

So, once again, we urge anyone who wants to be in the UAS business to take the time to learn the what is in the Federal Aviation Regulations.  For those of you who do not want to do that, at least look over the FAA’s UAS enforcement guidance for UAS local law enforcement and the new UAS civil penalty handbook, and then maybe you should reconsider your first decision.    

The first exemption was for UAS weighing under 2 kilograms (4.4 pounds), and contained 37 conditions that had to be followed.  The second exemption covers UAS weighing between 2.1 kilograms and 25 kilograms (55 pounds), and contained 58 conditions that had to be complied with.  There was a great deal of excitement when these exemptions were announced, with many proclaiming that Canada was open for business, and that Canada now had one of the most business-friendly UAS systems in the world.

Well, all is not what it appeared at first glance, and one of the “strings” attached to these exemptions has proven to be an anchor.  Both exemptions contain the following condition:

26.       The pilot operating under this exemption shall only operate a UAV at least five (5) nautical miles away from a built-up area.

Upon first reading, this does not seem like a particularly onerous restriction.  There are lots of potential UAS uses that are outside the center of a big city, right?  Well, Transport Canada has released an advisory circular defining the term “built-up area” for the first time.  According to Transport Canada, in interpreting this restriction, it must be noted that:

UAVs operated under these exemptions are not required to meet any technical airworthiness standards meaning that there is no assurance of the airworthiness or capabilities of the UAV system. This increases the risks to persons and property on the ground, therefore, UAVs must not be operated near populated areas. Built-up areas are considered areas with groups of buildings or dwellings including anything from small hamlets to major cities. Anything larger than a farmstead should be considered a built up area.

Remember, this is not a restriction on flying over anything larger than a farmstead; it prohibits a UAS from approaching closer than 5 miles to anything larger than a farmstead.  This restriction obviously carves out an enormous area where the exemptions do not apply, including virtually all of the parts of Canada where commerce is occurring. 

As a result, while these exemptions look good on paper, in the real world, the vast majority of commercial UAS operators are still going to have to fly under the old Special Flight Operations Certificate system, with its requirements for government review and approval.  So, for those of you in America waiting for your Section 333 Exemptions, it appears the grass is not always greener on the other side of the border, particularly in winter.