Flights beyond visual range still unresolved in US, PSDJ urged rulemaking committee to reccommend sensible regulations

Relatively low-cost technology exists today that enables drones to fly miles from their operators, but proposed rules in the United States would outlaw this kind of operation for everyone, including journalists. Above, a hobbyist uses "first person view" equipment to participate in a newly-invented, high-tech sport: drone racing. Still from the Tested YouTube channel.

The long-awaited proposed drone rules in the United States were met by drone journalists with equal parts surprise and relief. As the PSDJ wrote on, the proposed rules presented a welcomed departure from the time-consuming exemption process that required sterile sets and licensed pilots.

Other sectors in the unmanned aircraft systems community were not so pleased, however. Noticeably absent from the proposal were rules governing Beyond Visual Line of Sight (BVLOS) operations, which is key for parcel delivery and other operations requiring a sizable distance between operator and drone. As presented, the rules forbid any flight where the operator can not see the drone.

Companies including Amazon and Google, who have been researching drone delivery, are among the critics who say the drone rules aren't comprehensive enough. A statement from the Small UAV Coalition, of which Amazon and Google are members, argued that "Until small UAVs are able to go beyond the line of sight, we are not maximizing the technology as other countries already do."

Amazon and Google might have friends in the media business who also wish to operate BVLOS. Today, television news helicopters take off from fixed helipads, and sometimes cross tens or hundreds of miles to arrive at the scenes of accidents, protests, floods, explosions, and other disasters. Backpack reporters might also have use for a flying camera that can cross dangerous or impassable terrain to arrive at the news scene. Drones already exist that provide such capabilities.

In the US, the public can participate in agency rulemaking. By law, the Federal Aviation Administration must give the public a chance to comment on proposed regulations, before those regulations are promulgated. The comment period for the proposed small unmanned aircraft rules, for example, is 60 days (ends April 24).

It has been argued that public participation in the comment period for proposed rulemaking can have an impact. But the propose-comment-promulgate system of federal rulemaking, also called negotiated rulemaking, has its critics. Others argue the resulting regulation "becomes nothing more than the expression of private interests mediated through some governmental body." Specifically in the case of unmanned aircraft systems, the concern of the larger community of drone operators is that defense contractors will have an outsized role in shaping small UAS regulations.

The comment system on proposed rules is transparent. However, the work that goes into making those proposed rules is largely, if not completely, hidden from the public. Even congressional representatives on the House aviation subcommittee could not pry from the FAA a single hint of what rules it might place on small drones, during a Dec. 10 hearing on unmanned aircraft system integration. It wasn't until the agency accidentally released an economic report on its proposal on February 14, that it went ahead and pushed the small UAS NPRM out the door.

Rather, the lion's share of aviation rules are crafted by groups called Aviation Rulemaking Committees (ARC). The membership and agendas of these committees can reveal much, but are not always available without a Freedom of Information Act (FOIA) request. Much of what happens inside the ARCs is a mystery, as ARCs are not required to record meeting minutes.

When Mickey Osterreicher, general counsel for the National Press Photographers Association, informed the PSDJ that he would be appointed to an ARC for BVLOS drone operations, and would be accepting input, the PSDJ began writing recommendations.

After a first draft of the document, which includes proposals for regulations and evidence to support those proposals, the document was placed in front of the five-member board of directors for further study, comment, and editing. On December 18, the board approved the recommendations. The document was later sent to Mr. Osterreicher for his consideration.

Among these recommendations, the PSDJ emphasizes the need for a risk-based approach to producing rules, which includes the use of actuarial science, to accurately determine the risk of small drones. Perhaps most critical, the PSDJ recommends that the operation of small drones, within or beyond visual line of sight, should not require a pilot's license for a manned aircraft, as such training does not adequately prepare drone operators for the realities of remotely-piloted flights. Note that this document was produced before the NPRM went public.

The PSDJ also insists on a set, measurable distance to define what constitutes flight beyond visual range, in this case, 1,000 horizontal feet. Given accurate flight logs and telemetry, this should remove any subjectivity as to whether a drone is "visible" to the unaided eye. Operators will clearly know whether they are inside or outside BVLOS parameters.

In order not to give preference to any particular equipment manufacturer or control link software, the PSDJ does not specify what equipment a operator must use in the course of BVLOS operations. The only requirement is that the control links have adequate range for the entire operation, that the UAS be equipped with an ADS-B transmitter to alert nearby aircraft of its location, and that the ground control station displays the altitude and location of the small UAS, along with information about battery capacity. Additionally, at least one member of the ground crew would need an ADS-B receiver to detect air traffic within a 10 mile radius, and also means to contact the nearest air traffic control facility (a cell phone would suffice).

In the recommendations, the PSDJ advocates that the only qualification necessary to operate a small UAS in BVLOS conditions should be time spent piloting other small UAS. But for BVLOS operations, where certain risks are higher, it is encouraged that operators pass 14 CFR Part 141 Training, in order to understand the normal operations of the National Airspace System (NAS) and how to communicate effectively with air traffic control. The PSDJ included this wording in order to ensure that small UAS operators could handle situations where a drone inadvertently flies into the NAS.

Osterreicher has been a longtime defender of press photographers, and as drone and aerial photography technology has progressed, he has also advocated for the rights of journalists who intend to use remotely piloted aircraft systems for reporting. In a phone call with the PSDJ in November, Osterreicher questioned the Temporary Flight Restriction (TFR) issued over Ferguson, Missouri, which blocked news helicopters from covering demonstrations. Initially, St. Louis County Police claimed the restriction was meant to protect official helicopters. Recorded phone conversations between the FAA and the police, however, showed intent to block the media.

"The whole idea of having a First Amendment is so the government can not interfere," He said. "Really what the TFRs are is a form of prior restraint... In Branzburg [v. Hayes] the court went on to say without the ability to gather the news, the First Amendment will be completely eviscerated. Clearly, up in the air, there are some safety issues. But if the safety issues are just being used as a pretext, that's a completely different story."

Below is the full text of the PSDJ's recommendations regarding BVLOS flights of small UAS.

PSDJ letter to FAA ARC on BVLOS UAS by Matthew McQuiston Schroyer on March 1, 2015 by Matthew Schroyer.