Aviation lawyer sees problems with FAA's proposed UAS regulations

By Patrick C. Miller | February 19, 2015

Timothy McCulloch, an aviation attorney and pilot, commends the U.S. Federal Aviation Administration for releasing proposed regulations for small unmanned aerial systems (UAS), but sees potential legal problems on the horizon.

A flight instructor and commercially licensed pilot with more than 5,500 hours, McCulloch is a partner with the Hinshaw & Culbertson LLP office in Phoenix. He represents commercial aircraft operators, flight schools, fixed-based operators and airports, including the FAA-approved Nevada Unmanned Aerial Systems Test Site.

“The FAA is to be commended for thinking outside of its usual box,” McCulloch said. “Their stand on small UAS was very rigid for a long time, trying to take the small UASs and put them in the same box as a large manned aircraft.”

After reviewing the proposed sUAS regulations, he said the new regulatory structure is a step in the right direction. However, McCulloch sees some components of the rules that could be “hugely troublesome.”

“The one that really struck me is that they want to register all these small UASs—put them into the national registry with registry numbers,” he noted. “I can’t imagine how the FAA’s going to do this.”

Based on his experience, McCulloch said the agency’s resources are strained in getting manned aircraft registered.  

“If you start adding UASs under 55 pounds, there could be hundreds of thousands of these things,” he explained. “I don’t think they have the resources to actually do the registration of the aircraft.”

Although the new regulations require unmanned aerial vehicle operators to do preflight inspections of the aircraft, the FAA won’t require them to have certificates of airworthiness, which McCulloch views as another potential problem.

“On a manned aircraft, you have a certificate that tells you what kind of condition the aircraft needs to be in to be airworthy,” he said. “If that no longer exists, there’s no real definition of what airworthy is. If these things crash or have an issue, I’m not sure how they’re going to determine whether the pilot properly preflighted the craft.”

With a manned aircraft, those who repair or conduct maintenance on it must be certified by the FAA, and there are inspection authorities and repair stations that sign off on the airworthiness of the aircraft, McCulloch noted.

“In an aircraft, if I have an electrical problem, I have to go to a certified mechanic who knows how to work on the problem,” he said. “With a UAS, I could just take it to the local hobby shop and have them fix it.”  

According to McCulloch, another potential problem for the FAA is the privacy issue.

“With these regulations, privacy only seems to deal with the people who have the UASs and the privacy of their data within the FAA,” he said. “It has nothing to do with the external privacy concern. Citizens certainly don’t like the idea of these things flying over their homes. Will it be a violation of a regulation to fly UAS over the Playboy Mansion?”

McCulloch also has concerns about the FAA’s ability to enforce its sUAS regulations and doubts that law enforcement agencies will have much interest in it.

“The oversight resources right now are stretched to the limit,” he said. ”They barely keep track of the manned fleet. I think they’re going to have a very hard time keeping track of the UAS fleet.”

McCulloch noted that the FAA has asked law enforcement agencies for their assistance in enforcing its regulations while continuing to “zealously guard its enforcement prerogative.”  

“They basically said to local law enforcement, ‘We would like you to go out, catch the guy, gather all the evidence and then we’ll go ahead and prosecute,’” he explained. “I don’t think a police department is going to go, ‘Oh great. Can we build a case to hand over to the Federal Aviation Administration?’ I just don’t see a lot of local law enforcement wanting to do that.”

During the upcoming comment period on the proposed sUAS regulations, McCulloch said it’s likely that he’ll be submitting comments of his own, and he will also be interested in reading the comments others submit.

Having worked extensively with the FAA on behalf of clients, McCulloch believes it will be interesting to observe the agency as it works to implement sUAS regulations. He refers to the different branches of the FAA as “silos” because they don’t always communicate well with each other.

“They’re dealing with operations, they’re dealing with air traffic control, they’re dealing with airports, the flight standards—all of these silos are having to talk among themselves,” he noted. “Many of them will have differing opinions. It will be interesting to see the FAA cogitate on this.”

 

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