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Berl Brechner/NewsDrones comments to FAA

Berl Brechner, NewsDrones Company,
Comments in response to FAA Notice of Proposed Rulemaking

Re: Docket No. FAA-2015-0150

Operation and Certification of Small Unmanned Aircraft Systems

Submitted: April 24, 2015

I offer these comments In the above-captioned proceeding as a broadcaster, journalist, and licensed commercial pilot with instrument and multiengine ratings, with over 4,000 hours of fight time.  In addition to this, I am intending to advise and consult with broadcast news operations or others who may wish to obtain video footage from unmanned aircraft as a fast and efficient way to serve the public with news and information, or otherwise use or provide aerial photography or video services.

In concept, I agree that the proposed Part 107 of the Federal Aviation Regulations (“FARs”) seeks to find a balance between public safety and operational utility.  And I recognize that the Federal Aviation Administration (“FAA”) sees this as a first step, and intends, recognizing advancing technologies and with further regulatory initiatives, to broaden permitted public uses of non-hobby and non-recreational unmanned aerial systems.

On this specific proposal, I find a number of areas worthy of clarification or modification, but I will focus on those most obvious to me and of most importance to potential clients with video news or image-gathering needs.  Adjusting these proposed regulations to maximize the chance that small Unmanned Aircraft Systems (“UAS”) may be used for news gathering to benefit the public also serves to enhance the information available to public authorities, first responders, and private entities that may be involved in dealing with breaking news or disaster emergencies.   My comments below are sequenced based on their order in the proposed Regulation.

Part 107.13

Part 107.13(d) says that aircraft registered pursuant to this regulation must comply “with all applicable airworthiness directives.”  However, as explained in the FAA’s Discussion within the  Notice of Proposed Rulemaking (“NPRM”), the aircraft itself may be built and sold without meeting any certification or performance requirements of the aircraft as a whole or its parts.  FAA-Certificated parts (which may be subject to Airworthiness Directives  (“ADs”) may be used voluntarily by a manufacturer, so it would seem that compliance with an Airworthiness Directive on such a part should be voluntary as well.  After all, the rest of the aircraft (and most likely for the total fabrication of the majority of aircraft used under this Part) may be built without any certificated parts, which may be subject to distress or failure even more so than certificated parts.  Thus the aircraft without them may be even more prone to failures.   It is an unnecessary and impractical burden on the manufacturer, the FAA, the owner and the operator to track and repair/replace components affected by ADs.  As the FAA has said numerous times in this rulemaking proceeding, there are many safety backstops in this proposed regulation that deal with aircraft, system, or control station failures.  AD compliance does not seem necessary, since FAA-certificated parts are optional anyway.

RECOMMENDATIONAdopt the proposed section without subsection (d).

Part 107.21 (and potentially elsewhere) 

It must be made clear throughout the proposed regulation that the registered owner of an aircraft may, or may not be, the certificated operator.  So, throughout, the proposed regulation must be looked at to assure that appropriate responsibilities may be divided.  In most cases this distinction seems to be handled adequately.  However, Part 107.21 of the proposed regulation (Maintenance and Inspection), says  “An operator must: (a) Maintain the system in a condition for safe operation…”    This, in fact, may be the responsibility of the Owner.

RECOMMENDATION: Make paragraph (a) of this section the responsibility of the operator or owner.  Make section (b) of this paragraph the responsibility of the operator.

Part 107.31 and Part 107.51

I am concerned whether the line-of-sight requirement (107.31), the maximum aircraft speeds permitted (up to 100 mph)(107.51(a)), and the absence of a visual acuity requirement of the operator (or alternatively the Visual Observer) will work as the FAA thinks they should, both in terms of maintaining visual contact with the target, and with the ability to see and avoid.   Assuming, as an example, an unmanned aircraft is a roughly 3-foot-large object, I’m guessing that it would not be visible beyond a mile (and perhaps substantially less).  At 100 mph, the unmanned aircraft could be at or beyond the point of visibility in less than 40 seconds).  From my years of experience monitoring other aircraft (full sized) in flight, once a spot-sized target is lost, that target may, or may not, be visually re-acquired.   At speeds this great, with no guarantee or standard regarding the visual capability of Operator or Observer, it seems that the chance of inadvertent flight beyond visual range is great.   Further, the greater the speed, the greater the reaction-time distance traveled prior to when a collision avoidance maneuver can be initiated.  Ultimately, for the uses contemplated in this regulation, I do not see a need for a max speed of 100 mph, but rather a substantially slower maximum speed, perhaps as little at 30 knots (33 mph).

RECOMMENDATION: Regardless of the speed capability of the aircraft, the FAA should impose in Part 107.51 an additional operational speed limitation that is substantially slower than 87 knots (100 mph), and perhaps as slow as 30 knots.

Part 107.39 and Part 107.29

I object to, and have as a critical and fundamental area of concern, the blanket limitation of proposed Part 107.39, which prohibits operation “over a human being” (excepting those operating the aircraft, or people under covered structures). A one-mile-radius line-of-site circle around an operator encompasses nearly 2,000 acres.  The chance that there may be an unseen human being in an area where a UAS is being used, or that a human being happens to have been in a vehicle, and steps out, or inside a structure, and steps out, is certainly a possibility.   (Such a circumstance may be particularly likely in the case of a news imaging flight over an area that is otherwise inaccessible but thought to be void of people).  In such a case, the unmanned aircraft may end up, for a moment, “over” a human being.

RECOMMENDATION: As a first phase of this comment, this section should begin:  “No person may intentionally operate a small unmanned aircraft over a human being….”

But my even greater concern is that this Part 107.39 is so limiting as to render news videography via UAS almost impossible.   I would recommend that flight, in fact, be permitted over people, however, with additional limitations and requirements.   Such as:  no lower than 200 feet over people. Also, it might be required for such “over people” operations the use of an UAS that has “auto-return” capability, in that it automatically comes back to its point of launch in the event of mechanical problem; or impending exhaustion of energy supply; or failure of communications link; or upon demand by the Operator in the event visual line of sight cannot be maintained (due to an unexpected shift in smoke condition, for instance).   In addition, such a circumstance might be limited to use of UAS by operators associated with, or using the UAS on behalf of, news media or news organizations or otherwise involved in newsgathering activities.   It is important for the FAA, in evaluating this anticipated use, to balance its safety concerns against the public interest and public benefit that such newsgathering may provide.

RECOMMENDATION:  Adjust the introduction to say: “Except for (c) below, no person may intentionally operate a small unmanned aircraft over a human being who is: “.   And then create a new section (c) that permits operation over persons applying the conditions suggested above to permit newsgathering flights over persons. 

I would like to additionally pinpoint that some video news gathering organizations would like to limit or replace helicopter news video operations with UAS newsgathering.  Since aerial newsgathering is an important benefit to the public (as well as to public authorities, emergency responders, and others dealing with complex or critical situations), wouldn’t it be better to have a small unmanned aircraft over people, rather than a helicopter?  This tradeoff eliminates chance of injury or death to people in an aircraft, reduces chances of property damage or injury below, and is environmentally beneficial.   The FAA would be wise, for all of these reasons, to permit, in this first round of regulation of small UAS, newsgathering flights over people.

Similarly, for newsgathering, with such equipment, limitations, and capability as noted immediately above, and with suitable aircraft lighting, a newsgathering-related flight should be permitted under this Part during nighttime hours.   (I would add that such a suggestion meets, in part, the FAA’s concern about operational limitations otherwise imposed in areas, such as Alaska, where there may be very limited, and sometimes no, daylight hours during certain days of the year).   This suggestion also creates the potential benefit of trading helicopter flights for small UAS operations.

RECOMMENDATION:  Adjust the language of Part 107.29 to start with “Except for 107.29(a)….”   Create a new section 107.29(a) that permits nighttime operations, with the aircraft lit appropriately for visual tracking and to be seen by other operators of UAVs or by manned aircraft, and with the additional limitations imposed in newly proposed Part 107.39(c) above.  Additionally, change the title of 107.29 to “Day and night operations”

Parts 107.41 and 107.47, ATC Authorizations 

Proposed 107.41 requires ”prior authorization” from Air Traffic Control (“ATC”) for operation in Class B, C, D or certain E airspace.   These areas cover a lot of territory across the U.S.  The FAA should have a process in place to receive and react promptly, and affirmatively, to such requests, particularly since unmanned flight below 500 feet poses little threat to aircraft in most of such airspace. In the Discussion pages, at III.D.5.i, the FAA suggests that the items related to prior authorization “should be outlined in a prior agreement with the ATC facility”.   Thankfully, there is no such requirement in the regulation. In fact, it should be the other way around: that ATC should, as it can with manned aircraft, address and act on requests to ATC on short notice, and certainly without “prior agreement.”  Better yet, and to reduce what may be a substantial burden on ATC, the rulemaking should consider whether flights in Class B, C, and D and applicable E airspace at up to 100 feet, and at  that come no closer than one mile from the outer boundary of any airport, be permitted without ATC approval.  This will open up many opportunities for UAS users under this Part 107, without the need for ATC involvement, and without the associated workload of those approval requests, and would, by my calculation, result in NO threat to manned aircraft.   If and where ATC authorization is required, it should be specified in the regulation that such ATC authorization shall not be unreasonably denied.

RECOMMENDATION: Consider easing the blanket restrictions within Part 107.41 to permit flights, with certain conditions, such as suggested immediately above,  within Class B, C, D and defined E airspace WITHOUT ATC approval.  Additionally language should be added such as: “Under such circumstance that ATC authorization remains required, ATC authorization shall not be unreasonably denied.”

Another section, 107.47, prohibits flight without ATC authorization in areas closed by Notices to Airmen (these would most commonly be Temporary Flight Restrictions, (“TFRs”).   TFRs have become frequent, and, in some cases geographically broad.  They may last days at a time, and may be imposed on short notice.  Because of the limited scope of UAS operations as permitted by this proposed regulation, the issue of flight of unmanned aircraft in TFR areas under this Part should reconsidered, with further thought toward permitting, unmanned aircraft flight in some limited fashion without ATC authorization, perhaps based on (1) geography, (2) distance of the Operator from the elements being protected by the TFR, and/or (3) altitude.   Again, this could considerably ease a potential burden on staffing of FAA ATC facilities.

RECOMMENDATION: Consider easing the blanket restrictions within Part 107.47 to permit flights, with certain conditions, within areas that might otherwise be restricted to flight by the issuance of a Notice to Airmen (NOTAM), and to allow such WITHOUT ATC approval. Additionally language should be added such as: “Under such circumstance that ATC authorization remains required, ATC authorization shall not be unreasonably denied.”

Part 107.73

There is, in the knowledge requirements for both initial and recurrent operator testing (Parts 107.73(a)(3) and (b)3)), reference to testing on “official sources of weather”.  But operation of the UAS calls more simply for assessment of “local weather conditions.” (Part 107.49(a)(1)(i)).  Even the requirements of licensing of pilots under Part 61 do not call for knowledge of “official sources of weather,” but instead for “procurement and use of aeronautical weather reports and forecasts.”   It could be further argued, in fact, there are no clearly identified “official sources of weather.”   Because these types of operations regulated by this Part 107 will be in very localized areas, no weather sources will be accurately predictive, and thus it should be left to the Operator to determine what he or she finds best as a weather source, which in the case of a short flight in a very local area, may be as simple as looking up at the sky and sticking a wet finger into the air.   The use of the term “official” in this context is confusing and meaningless.

RECOMMENDATION: Delete the word “official” in these lines. 

The proposed knowledge test calls at Part 107.73(a)(7) for testing on “radio communications procedures.”  This seems superfluous, in that nowhere in the proposed regulation for UAS operations is there any requirement for radio communications between the Operator and ATC, or the Operator and any other aircraft, or radio communication of any sort.  If the FAA wishes to have standard phonetic alphabet terms used, for clear identification of names, places or registry numbers in the event of telephonic communications between an operator and ATC, then simply specify in this section for knowledge:  Knowledge of the phonetic alphabet.

RECOMMENDATION:  Delete 107.73(a)(7). 

Similarly, the proposed regulation in Parts 107.73(a)(6) and (b)(5) calls for knowledge testing on “Crew resource management,” (“CRM”), generally known to be a complex package of learning relating to the interrelationships and responsibilities among the persons (such as pilots, company maintenance advisors, ATC, and non pilot crew members) involved in larger aircraft manned flight operations.  To suggest this knowledge is needed for small UAS operations is pure overkill, since “crew resource management” in this regulation basically applies to an Operator talking to his/her Visual Observer, if one is used.   There are plenty of other specifications in the rule on how these two parties work with each other.  Additionally, to respond to a point in the Discussion section on this topic, study of CRM will, in my opinion, offer no insight into how a manned aircraft will react upon a visual sighting of a small unmanned aircraft operated pursuant to Part 107. Testing on “Crew resource management” is not needed, and as stated is certainly overbroad, and should be deleted.  If the language is to be kept, it should, at a minimum, say “Crew resource management as it may pertain to operation of small unmanned aircraft.”

RECOMMENDATION: Delete 107.73(a)(6) and (b)(5).

And finally, the knowledge testing includes at 107.73(a)(2) and (b)(2) testing on “obstacle clearance requirements.”  Since the proposed regulations do not specify any obstacle clearance requirements for small UAS operated under this Part, there is no need for testing on this, and this testing element should be deleted.

RECOMMENDATION: Delete  107.73(a)(2) and (b)(2). 

Additional items

1.  There is, in the Discussion portion of the NPRM, an explanation of why  “emergency authority” similar to that offered to pilots of manned aircraft, is not offered here.  The FAA should reconsider this determination, and add an “emergency authority” provision to Part 107 similar to that found in Part 91.3 for aircraft pilots.   Given that an unmanned aircraft operator will be FAA-licensed, using an aircraft that must be FAA-registered, and may be the only person on scene and seeing what’s going on, there is no better person to make immediate determinations on how best the UAS should be operated in the safest manner possible, regardless of rules or procedures that may be on paper.

RECOMMENDATION:  Create a new section within Part 107 granting to the Operator “emergency authority” similar to that provided to pilots flying aircraft under Part 91 of the FARs. 

2.  While not specifically mentioned in the proposed regulation, the Discussion section III.I.5.i details the Transportation Security Administration (“TSA”) vetting, including a Security Threat Assessment, for applicants under this Part for an Operator certificate. The explanation for such vetting is that it is done for prospective plots of manned aircraft.  However, only trained and ultimately FAA proficiency-tested pilots are permitted to, and capable of, operating registered manned aircraft, and no one without such training and testing may, or likely can, do so.  It is totally different with UAS operations.  Some people will choose to operate under this Part, and to apply for an Operator certificate  they must provide specified personal identification information to an authorized person (and do so under penalty for fraud or false documents, per proposed Part 107.5).  However, many others will acquire and operate the same type UAS totally anonymously, as permitted pursuant to hobby and recreational exceptions for such operations.  These users of unmanned aircraft have no requirement to provide any information about themselves or their aircraft to any authority, or even to the seller of the aircraft.   If someone intended to misuse an UAS, it would not be the person who is identifying himself or herself before an authority and applying for an Operator certificate under Part 107 of the FARs.  By the nature of the “dual” system for flight of UAS in the United States as envisioned by this proposed Part 107, including permitting acquisition and operation of UAS with total anonymity by a segment of users, TSA screening of Part 107 applicants has little if no likelihood of identifying people of concern for security reasons.   Thus, TSA scrutiny, and the intended Security Threat Assessment of those who apply for a certificate under this Part, creates an extra burden of personnel time, process delay, and  monetary expense to both the applicant and the TSA, and will distract the TSA from far more productive work toward its security mission.

RECOMMENDATION:  Do not involve the TSA in any fashion in vetting applicants for an Operators certificate under this proposed Part 107. 

I appreciate the opportunity to comment on this proceeding.


Berl Brechner
NewsDrones Company
540 N. State Road
Briarcliff Manor, NY
914 941 7146