Did the FAA Arbitrarily Change its own UAS NAS Policy? (Part 2)

Patrick Egan

Some background on the FAA/DOT documents: these attached documents are a series of memorandum involving an unmanned aircraft manufacturer/operator seeking to establish procedures for flying both Radio Controlled Blimps and fixed wing aircraft in Class B Airspace. (The documents are color coded in the upper right corners)

The second attachment dated August 20, 2001 Subject: Action: Request for Ruling/Interpretation/Establishment of Procedures For Radio Controlled Blimps in Class B Airspace (Green)

The requested or intended uses are; “advertising, aerial photography, etc”. And the following description… “These Vehicles are very unusual:” Blimp Specifications:

Length – 22 feet”, “maximum height 500 to 1000’ AGL”, “Range From Pilot – 2 miles.” “Additionally, Galaxy RPV has a 14’ fixed wing aircraft that they will be using too.” So at this point, you’re probably mumbling to yourself that this dude is dreaming, even with his safety features. I mean we’re talking commercial operations in Class Bravo Airspace at a 1000’ out to two miles, and then taking it up a notch to a complete fantasy, a 14’ fixed wing aircraft. There is just no way this is ever going to happen, right? Well, let us continue to examine the rest of the documents in the series.

The next document attachment 3 Dated Aug 28, 2001 (Purple)

Subject: Action: Request for ruling, Interpretation, or Procedures for Radio-Controlled Blimps in Class B Airspace.

Addressed to Manager, Terminal Procedures Branch, ATP-120 ATTN: Marty Walker

You will notice that this is a request made by the manager of the Air Traffic Division, ASW-500 and contains various references to 14 CFR including 1.1 91.131 and 91.215 all to operate in class B airspace.  Pictures of the aircraft below…

Now in the Yellow attachment DoT/FAA document is where things start to come into focus …

And really I have no choice but to copy most of the memorandum. After, I will make some comparisons between the pre and post [4910-13] Feb, 2007 document.

From the memorandum: (Yellow)

“We have reviewed your above-referenced request for interpretation regarding requirements for radio controlled airships and aircraft to operate in Class B airspace, and offer the following response.” The aircraft described and pictured in the attachments to your memorandum appear to be model aircraft that do not require compliance with Federal Aviation Regulations.” (AMA may want to make a note of that?!) And it goes on… “Model aircraft do not require a type certificate, airworthiness certificate, or registration. Federal Aviation Regulations do not apply to them. Specifically, 14 Code of Federal Regulations (CFR) Part 21, Certificate Procedures for Products and Parts; 14 CFR Part 91, General Operating and Flight Rules, do not apply to model aircraft. Model aircraft may operate in controlled airspace without air traffic control authorization, transponders, or altitude reporting equipment.”

 

“Model aircraft operators should comply with Advisory Circular 91-57, model aircraft Operating Standards, and avoid flying within 3 miles of an airport or in proximity of full-scale aircraft. Model aircraft that pose a hazard to full-scale aircraft, persons, or property should be reported to local law enforcement officials.”

“If you have any questions, please contact Martin Walker, ATP-120.8 at (202) 267-9330.”

 

Signed Michael A. Cirillo

Pretty cut and dry policy wise! So, who is Martin (Marty) Walker, what is ATP-120 and what does all of this have to do with flying in class B airspace?

Martin Walker’s bio as follows…

FAA Headquarters Staff Specialist, Air Traffic Plans and Procedures, Washington D.C.  1999 – 2003 Mr. Walkers duties included: Provided subject matter expertise on Terminal Air Traffic Procedures, Instrument Flight Procedures, TERPS and Terminal operations.  Reviewed proposed RNAV/ RNP procedures and verified conformity with ICAO regulations in support of RNAV/RNP implementation.  Represented the Air Traffic Procedures office at the Aeronautical Charting Forum Instrument Procedures Group, Terminal Area Operations Aviation Rulemaking Committee, Aeronautical Charting Forum and other workgroups.  Wrote interpretations and responses to questions about air traffic and advanced navigation procedures.

Is who Mr. Walker is important? Yes, the significance lies in the fact that Mr. Walker worked in the D.C. office and not one of the FSDO’s. Being at a FSDO is not a bad thing, however it is known that FSDO’s aren’t always in the know, hence the request made to HQ in D.C. His position is as a manager and not a clerk or other subordinate who may have misinterpreted Terminal Air Traffic Procedures due to a lack of expertise.  The last attachments are what is required by ATC during the coordination process (Blue and Red). Many small business operators were instructed to do the same prior to Feb, 2007. That was over the phone and again impossible to prove, but not so in this case as the documentation speaks for itself.

So, let’s compare the two policies in an effort to discern just who is mistaken

For context the [4910-13] document states: Regulatory standards need to be developed to enable current technology for unmanned aircraft to comply with Title 14 Code of Federal Regulations (CFR). The Federal Aviation Administration’s current policy is based on whether the unmanned aircraft is used as a public aircraft, civil aircraft or as a model aircraft.”

 

It continues…

Policy Statement

“The current FAA policy for UAS operations is that no person may operate a UAS in the National Airspace System without specific authority.” “For UAS operating as public aircraft the authority is the COA, for UAS operating as civil aircraft the authority is special airworthiness certificates, and for model aircraft the authority is AC 91-57. The FAA recognizes that people and companies other than modelers might be flying UAS with the mistaken understanding that they are legally operating under the authority of AC 91-57. AC 91-57 only applies to modelers, and thus specifically excludes its use by persons or companies for business purposes.”

 

The Memorandum (Yellow Attachment)

“We have reviewed your above-referenced request for interpretation regarding requirements for radio controlled airships and aircraft to operate in Class B airspace, and offer the following response.” The aircraft described and pictured in the attachments to your memorandum appear to be model aircraft that do not require compliance with Federal Aviation Regulations.” And “Model aircraft do not require a type certificate, airworthiness certificate, or registration. Federal Aviation Regulations do not apply to them.” (AMA may want to make a note of that!) And it goes on… “Specifically, 14 Code of Federal Regulations (CFR) Part 21, Certificate Procedures for Products and Parts; 14 CFR Part 91, General Operating and Flight Rules, do not apply to model aircraft. Model aircraft may operate in controlled airspace without air traffic control authorization, transponders, or altitude reporting equipment.”

 

And reaffirmed in the May 4, 2004 at your request response (Blue), and the required information listing (Red)

If this is FAA policy in writing from the home office in D.C., does it supersede the statements made in the 4910-13 “policy clarification?” It directly contradicts the existing written FAA policy from 2001. To surmise, the policy was one in where you can fly unmanned aircraft for commercial use in controlled airspace without ATC authorization exempt from 14 CFR and the new policy from February 2007 that states:

Experimental certificates are issued with accompanying operational limitations (14 CFR § 91.319) that are appropriate to the applicant’s operation. The FAA has issued five experimental certificates for unmanned aircraft systems for the purposes of research and development, marketing surveys, or crew training. UAS issued experimental certificates may not be used for compensation or hire. The applicable regulations for an experimental certificate are found in 14 CFR §§21.191, 21.193, and 21.195. In general, the applicant must state the intended use for the UAS and provide sufficient information to satisfy the FAA that the aircraft can be operated safely. The time or number of flights must be specified along with a description of the areas over which the aircraft would operate. The application must also include drawings or detailed photographs of the aircraft. An on-site review of the system and demonstration of the area of operation may be required”

 

It would appear that management didn’t get the memorandums in this case. If those documents weren’t enough, the last exhibit dated May 4, 2004 ( Blue) pretty much nails this case shut…

“At your request we are providing guidance detailing requirements and coordination responsibilities prior to operating an RPV in Class B Airspace. Advisory Circular (AC) 91-57, Model Aircraft Operating Standards, covers Remote Piloted Vehicle (RPV) operations. A copy of AC 91-57 is attached. Additionally, we have attached our 2001 correspondence with theProgram Director for Air Traffic regarding your operation.”

It is easy to grasp that these are undeniably two very distinct and contradictory policies, in this instance backed up by fact (See the Attachments) beyond any reasonable doubt.

After writing several letters and asking in person on multiple occasions, I had to finally enlist the support of the Congressional Affairs Office to get any kind of response. The response was a recent teleconference with staff and leadership from the Unmanned Aircraft Program Office (UAPO). During the teleconference, there was discussion back and forth on what the documents meant and the reasoning behind the change in policy, which they initially denied. Finally, I asked the following; “So, if the policy hasn’t changed, then the gentleman addressed in the memorandums is free to fly his airship or 14’ wingspan RPV in that same airspace today?” Basically the consensus was “Well no”. Well, why not? There was anonymous hemming and hawing (telecon), a plethora of hastily thrown out notions (paraphrasing) about how things have changed, and or how the person (Marty Walker) who wrote the guidance didn’t know what he was doing and was working on his own, or we can’t take one data point for policy. Those arguments are anemic, marginally disrespectful and really do little to instill confidence in the stakeholder.

The Congressional affairs person assured me that they would do some more digging, and we can only assume that the FAA’s official written answer is still forthcoming (???).

If we are to continue to take the policy clarification and ensuing rhetoric at face value, what transpired for 6 plus years could easily be termed as an egregious error and we as stakeholders should at the very least expect written reprimands of top managers within the FAA. In any event, if it is a contradiction of policy, a mistake or possible oversight, the policy clarification must be justified or deemed void as a matter of accountability for the procedural checks and balances that were absent here, shortchanging the interest of the public they are supposed to serve. I invite and encourage the FAA/DOT to reply in this or any other forum to further the conversation.

Let’s bring the public into what is supposed to be a public process.

Blue 2

Blue

 

Brown

Green 1

Green 2

RCAPA 1

 

 

RCAPA 2

 

RCAPA 3

Red

Yellow
Yellow

 

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Patrick Egan
Editor in Field, sUAS News Americas Desk | Patrick Egan is the editor of the Americas Desk at sUAS News and host and Executive Producer of the sUAS News Podcast Series, Drone TV and the Small Unmanned Systems Business Exposition. Experience in the field includes assignments with the U.S. Army Space and Missile Defense Command Battle Lab investigating solutions on future warfare research projects. Instructor for LTA (Lighter Than Air) ISR systems deployment teams for an OSD, U.S. Special Operations Command, Special Surveillance Project. Built and operated commercial RPA prior to 2007 FAA policy clarification. On the airspace integration side, he serves as director of special programs for the RCAPA (Remote Control Aerial Photography Association).