Too Little, Too Late?
This quick breakdown is your early-2016 forecast. Before we climb the charts, note
that the first two are currently pending in Federal Courts. Cheesy “pop” references
are mine.
Cue JoJo’s 2006 Billboard 100 song, “Too Little Too Late” ─ Filed Monday in the
U.S. District Court for the Western District of Kentucky, is a Complaint likely to be a
hit on the precedent-setting list of challenges regarding flight of UAS in America’s
airspace. From a shotgun-wielding defendant nicknamed “The Drone Slayer” (with
available t-shirt merchandise mentioned in the complaint for declaratory judgment)
bringing down a UAS flying Class G airspace, to issues which may finally address the
conflict between State laws and FAA jurisdictional claims of regulation and air safety,
the potential for a peak position is high. It cites California v. Ciraolo (1986)
and Florida v. Riley (1989), and causes me to reminisce over United States v.
Causby (1946) and Dow Chemical Co. v. United States (1986).
Could this have been avoided? Maybe. In 2006, FAA issued Order 8130.UAS –
Airworthiness Certification of UAS, and at the time FAA was already 14 years deep
into its protracted struggle to integrate UAS into NAS. The order didn’t last
long. Obviously, in current-day, we know the struggle continues. A week before
Christmas 2015, FAA Office of the Chief Counsel issued a seven-page “State and
Local Regulation of [UAS] Fact Sheet” seeking to present its principles of federal
preemption on the aviation issue, but it clearly was too little too late in this
instance. The UAS in this case was shot down from the sky in July 2015. (The case
is filed 01/04/16 as Boggs v. Meredith, Case No. 3:16-cv-6-DJH.)
Cue Mariah Carey’s 2006 hit, “Don’t Forget About Us” ─ These are the private,
recreational users of our airspace (a/k/a hobbyists) that were, arguably, protected from
FAA regulation under FMRA § 336. Filed pro se on Christmas Eve 2015 in the U.S.
Court of Appeals for the District of Columbia Circuit, this Petition is likely to be
another precedent-setter. It surrounds UAS registration, which first popped up
October 2015, and suddenly became an interim final rule effective December 21,
2015. Petitioner made an emergency motion for stay pending review, which the
Court denied. The potential for a peak position is high.
Could this have been avoided? Maybe. It’s interesting that the nation’s largest
organization of recreational users (usually touting their 80-year heritage) did not bear
the burden of proceeding with a challenge to the rulemaking — it was a lone
enthusiast from Maryland. The recreational group served on the UAS Registration
Task Force, but the Maryland hobbyist did not. (The case is filed 12/24/15 as Taylor v.
Huerta, Case No. 15-1495.)
Cue The All-American Rejects 2006 hit, “Move Along” ─ In terms of allowing our
domestic commerce to flourish in this new industry, ripe with opportunity, the FAA as
prescribed by FMRA § 333 allows a process for approval of commercial operations
while the NPRM process continues. Often cited by industry leaders as a barrier, the
weaker voices of small business owners and future entrepreneurs are often
unheard. In some cases, Section 333 Petitions submitted July 2015 sit idle, while
batches submitted October 2015 are now receiving their Exemption Grants. While it
makes sense that our Country would never want to compromise safety of the busiest
airspace in the world, it’s arguable that Government has struggled with UAS
integration into NAS through four (4) Presidents and seven (7) FAA Administrators.
2016 may now be the year to “move along” when you rundown the following: it’s
the 16th anniversary of the first UAS COA, 10th anniversary of the first UAS SAC,
and 9th anniversary since the first Federal Register notice titled “Unmanned Aircraft
Operations in the National Airspace System.”
Cue the number 1 hit of 2006, “Bad Day” ─ Early-2006 brought delivery of a final
report to Congress on ACCESS 5, a government-industry project to integrate UAS
into NAS via a four-step process. By year’s end ─ two steps deep into the project ─
ACCESS 5 was defunded and the program sunsetted.
In sum, our Declaration of Independence instituted a Government, empowered by the
consent of its governed. The principles organizing same, was to effect their safety
and happiness. Instead of having “bad days” and dealing with “too little too late”
matters, we might hope that collaborative action results in every American’s
enjoyment and happiness of their airspace.(Suasnews)