Last week, a group of researchers, teachers, and administrators from 16 institutions of higher learning including Harvard, Duke, and Stanford, registered their objections to the U.S. Federal Aviation Administration's recent “Interpretation of the Special Rule for Model Aircraft.” They did that by submitting, with the assistance of counsel, a 13-page letter in response to the FAA’s request for public comments.
These academicians are upset, in large part, because the FAA’s rules for model aircraft have been making it increasingly difficult for them to incorporate hands-on activities into their research and instruction. That’s because having their students design, build, and fly model aircraft (such as quadrotors and other kinds of small, low-altitude drones) the way countless hobbyists do is forbidden by the FAA’s prohibition on the use of model aircraft for anything that is not strictly a hobby.
Those who are at public universities can apply to the FAA for a Certificate of Waiver or Authorization (COA), but that option is not open to the faculty of private institutions. And in any case, the process, which was designed for doing research on comparatively large aircraft, is too cumbersome to address most educators’ needs.
“About the time you get an approval,” says Ella Atkins, a professor of aerospace engineering at the University of Michigan and one of the signatories to the letter, “the students have moved on.”
One work-around for some of these professors has been for them to limit the flights of student-built aerial vehicles to inside buildings. But even that ability may be in jeopardy given the FAA’s stance that its jurisdiction extends not just to “navigable airspace” (some hundreds of feet in the air), as has long been the norm, but all the way to the ground, including under bridges and inside tunnels.
“The agency views all airspace at any altitude in its jurisdiction,” says Brendan Schulman, special counsel with the New York City law firm Kramer, Levin, Naftalis & Frankel, who assisted the educators with their submission. “I’ve even heard of situations when there was at least a passing question raised about operating inside a closed area like a gymnasium,” he says. “It’s hard to predict what the [FAA’s] limit is.”
The educators are also concerned that the FAA’s strict interpretation of its rules may prohibit many of them from flying model aircraft at all, even in their off hours. According to their letter, the FAA’s recently issued interpretation “implies that researchers in numerous academic disciplines, especially in engineering and aeronautics, may effectively be banned from participating in model aviation as a hobby. “They are telling me that, as a professor, I can’t fly with my kids,” says Atkins.
Paul Voss, an engineering professor at Smith College, in Northampton, Mass., led this group of educators in providing feedback to the FAA. He has long maintained that a sensible solution to many of the problems posed by small drones is simply to defer decisions about their acceptable use to the people whose property is being overflown.
Although you might expect that landowners would have final say about what can be done a few feet over their properties, the FAA’s official position, as documented in an appendix to the educators’ letter, is that “[p]rivate land owners do not have any jurisdiction over the airspace above their property and cannot prohibit or allow aviation operations over their land.”
Voss regards that position as both unwise and unsafe. “We have a whole host of laws that protect the lowermost airspace—reckless endangerment, peeping-Tom laws, trespass—but all of a sudden the FAA comes in and it’s unclear who has jurisdiction,” says Voss.
The educators ask the FAA to rescind its recent interpretation of the special rule for model aircraft, focus its enforcement on the people who recklessly operate model aircraft within navigable airspace, and institute some sensible regulations for small drones based on altitude of flight, weight, and speed. And they stress that “the FAA should respect the well-established precedent that the immediate reaches of the airspace are vested in the landowner and are therefore not considered a public highway for aviation.”
We’ll have to wait and see how the FAA responds to these suggestions, not to mention the other 20,000 or so comments it has so far received on the topic.