01.18.15 11:45 AM ET

Drones Flying Circles Around FAA

What happens when millions of Americans suddenly become pilots? The question is dumbfounding the agency, which keeps delayed regulation of unmanned aircraft.

Now anybody can be a pilot. That is the scary future of airspace in the United States and the Federal Aviation Administration doesn’t really know what the hell to do about it.

I’m talking about drones. Since 2008 the FAA has been attempting to come up with regulations to govern the use of drones used for commercial purposes, and for the whole of that time the technology has been outpacing their deliberations. When they began the work, smartphones were only just catching on and drones were relatively expensive and clunky. Now they are marvels of the kind of technological miniaturization that has been shrinking everything.

And it’s the advancement of cameras that is driving the appeal of drones. The video on the latest smartphone is far better than on a three-year-old video camera and a fraction of the size. Imagine what that technology now delivers in the camera on a drone.

Drones bring eyes to a new place: the near sky.  They deliver a bird’s-eye view that is of enormous value to professions as varied as agriculture, archaeology, moviemaking, policing, oil exploration and real estate development. In some hands they could also serve as the most invasive Peeping Toms ever seen, popping up outside the windows of high-rise apartment buildings or snooping on nudist beaches.

The FAA was not designed to deal with a challenge of this order. It has a very serious day job overseeing the safety of 68,000 domestic commercial flights a day, the design of every part of the airplanes making those flights, and the operations of the continent-wide air traffic control system.

The agency hasn’t been doing well at this. It was recently heavily criticized for its inadequate oversight of new technology in the Boeing 787, specifically the lithium-ion batteries that caused two serious fires aboard Dreamliners. There are frequent complaints that the FAA takes too long to wake up to weaknesses in aviation safety – like, for example, the fact that an airliner can totally disappear without trace, as in the case of Malaysian Airlines Flight 370.

So it might have seemed that drones were just a noisome problem on the fringe of the agency’s main business, like a gnat snapping uselessly at the rear end of an elephant.

No more though. The single gnat has become a swarm.

To be fair, few people could have anticipated how the drone population would explode. And there’s also a confusing issue of definition. The term drone is popularly employed to cover everything from a $17million Predator loitering over Pakistan to eliminate a couple of Taliban commanders to an $80 toy put under the Christmas tree for sport in the yard. This Christmas drones were one of the top sellers in consumer electronics, and it has been estimated that 200,000 were sold in the U.S. each month of 2014.

Within these extremes is a rapidly evolving and diverse range of flying objects. At the lowest price-point are “recreational” drones (or, acronym omitted, Unmanned Aircraft Systems) that are mass products. But between these and the winged assassins lies what is a potentially lucrative and useful new airborne technology -- in effect, an industry in waiting that it has been estimated could generate $13.6 billion in economic activity in the first three years and create more than 70,000 new jobs.

But where, exactly, do you draw the line between frivolous recreational machines and serious commercial aircraft?

This has proved tough for the FAA to resolve. And while they have dithered, other countries have acted, already licensing commercial drones and encouraging their development. As a result some big players in the U.S. are losing patience, like Amazon. They want to use drones for a premium express package delivery service from their warehouse to your front door. They are threatening to introduce the service in Europe rather than in the U.S.

While commercial drones remain grounded, recreational drones have proliferated. They come ready to fly, and without any proficiency test for the pilots. Technically they are subject to the same FAA guidelines used for flying model airplanes: they should never fly above 400 feet, within five miles of an airport or near crowds, and always remain in line of sight of the operator.

For more than 50 years this voluntary system worked well. In the analog age radio-controlled model airplanes were bulky and expensive. But, as the technology of remote flight control shrank into a single computer chip, model airplanes became much more sophisticated. Development then took two separate paths – toward simplicity in out-of-the-box toys and toward far greater sophistication that was used in early military drones, used for unmanned surveillance of battlefields and troop movements. (The Israelis were early adopters.)

That branch of the technology eventually became so militarized that it required a specialized industry to develop and produce lethal, high flying aircraft like the Predator and Reaper that can be piloted from thousands of miles away via satellite. Most military drones of any size are winged and need the precision flying skills of trained air force pilots. But for amateurs winged drones were tricky to fly. Enter the quadcopter – a drone using four rotors working on the helicopter principle. These can easily be scaled down to toy dimensions or up for commercial use.

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The relative simplicity of quadcopters attracts pilots who have no experience of flying and little of the eye-to-hand coordination or three-dimensional spatial senses required for safe handling. As a result, these baby drones have already been involved in near misses with airplanes. For example, a commuter airplane approaching a British airport at 1,500 feet had to take evasive action to avoid colliding with a drone that got very close to a wing tip. In New York a police helicopter had to take similar evasive action when it spotted a drone at 2,000 feet over the George Washington Bridge. Airline pilots in the U.S. have made hundreds of drone sightings a month near their flight paths.

Dangers like these threaten the long-established rules for the control of airspace around all airports, large and small. Airplanes on approach and taking off are at their most vulnerable. An airliner on final approach with its wheels down cannot instantly change course; an airliner taking off is heavy with fuel and similarly unable to swerve to avoid a collision.

Nobody knows what the impact of a drone weighing three pounds or so would be on an airplane. The closest comparison would be with bird strikes. Bird strikes are most threatening to jet engines – it was a massive bird strike that took out both engines on the U.S. Airways Airbus involved in the “miracle” emergency landing on the Hudson in 2009.  

Airplanes and jet engines are designed to survive bird impacts – FAA standards call for the airplane structure to survive being hit by a four pound bird while flying at more than 300mph and for an engine to continue delivering power after ingesting a bird weighing as much as eight pounds. (In 2013 in the U.S. there were 241 reported bird strikes, none leading to a crash, although a recent crash of a business jet in Maryland that killed three people on board and another three on the ground was likely caused by a bird strike.)

Drones, however, don’t move like birds. They might well be sucked into an engine, with unpredictable consequences, but because they can maneuver and zig-zag about the sky according to the caprice of a careless owner they are just as likely to hit a vital piece of an airplane’s controls on approach or takeoff, like a wing flap or rudder, with possibly disastrous results.

Can anything be done to end these risks?

The technological ingenuity that brought the swarm of quadcopters into the sky may well make them safer. A company called Aurora Flight Sciences is already testing a collision avoidance system that can be fitted to one of the most ubiquitous quadcopters, the DJI Phantom 2. This system will sell for around $200 and is similar in the way it works to the far more expensive proximity warning technology used on airliners and military airplanes. Sensing that the quadchopper is getting too close to any object, moving or static, the device can override the pilot and command a turn away.

It’s important to bear I mind that the FAA is not being pressed to solve the problem of rogue drones flown by amateurs. (They can, as they have just done, issue a video reminding novices of the voluntary disciplines, but they have no means of enforcing them.) The agency is being asked to come up with rules that will safely integrate the operation of commercial drones, the so-called Unmanned Aircraft Systems  weighing up to 55 pounds, into civil airspace. The agency was mandated by congress to publish its proposals by the end of 2014 and put the resulting regulations into effect by September 2015. The proposals have yet to appear.

Meanwhile, in the United Kingdom more than 500 operators have already been given permits to fly commercial drones not weighing more than 44 pounds. But before these permits are given there are tests of flying skills to be passed, and the vehicle itself has to meet safety standards. (Companies have been set up to offer training and certification that is accepted by regulators in the U.K. and other European countries.) Enforcement is serious and tough: a man who flew a quadcopter over a Scottish nuclear submarine base was fined $1,400 and paid $3,500 in legal costs.

The FAA is bound to follow the same policy in some form: pilots of commercial drones will need proficiency tests, even though they will be less demanding (and expensive) than what’s required to get a civilian pilot’s license. Flight schools across the country have anticipated this, and courses in flying commercial drones are fully booked.

All of this makes it seem very difficult to justify leaving small drones like the quadchoppers subject to voluntary rules about the safe use of airspace while, at the same time, licensing and regulating a new professional class of pilots to handle heavier and far more expensive commercial drones. The very idea of a double standard -- different grades of competence for different kinds of machines -- is unprecedented.

Once it publishes its proposals the FAA has to allow a period, normally from 60 to 90 days, for comments. That is likely to be far too short. Two industry pressure groups, the Association of Unmanned Vehicle Systems International and the Academy of Model Aeronautics  are very well organized and vocal. They will flood the agency with comments – predicted to be as many as 100,000. Once those comments have been digested the agency has to decide how many of them justify making amendments to the proposals and after that the final rule making has to go through a government approval process where, again, it will be vulnerable to lobbying. Some experts predict that it might be 2018 before the final regulations will be in force.

Meanwhile, in an effort to better understand both the potential and problems of commercial drones the FAA has designated sites in six states – North Dakota, Alaska, Virginia, Texas, Oregon and New York – where they will permit experimental commercial use after scrutinizing applicants. This process, though, has been so tightly controlled that – to take one example -  even universities wanting to use drones for aviation engineering lessons have not been allowed to do so.

And not only the FAA is wary of how commercial drones might be used: 36 states have restricted the operations of any drones because of concerns about violations of privacy.

Interestingly, moviemakers have had more luck in pressing the FAA for an exemption from rigid prohibitions. That’s largely because the chairman of the Motion Picture Association of America, former senator Chris Dodd, has a lot of clout in Washington. Six production companies have been permitted to use drones, but within limits: they must be restricted to closed sets, not fly faster than 57mph and no higher than 400 feet.

There was a growing frustration in the movie industry because various versions of remote-controlled model airplanes have been used on movie locations in Europe for years. Cinematographers are eager to use the latest quadcopters because they are a cheaper and more versatile alternative to either manned helicopters or giant cranes. For example, a drone-mounted camera can start a shot in hard close-up to a face and pull back to a high and wide panoramic view that previously would have needed a skillful and expensive combination of a crane and helicopter.

In theory, the sky may seem free but the regulation of it has a surprisingly long history.

On November 21, 1783, Jean-Francois Pilatre de Rozier and Francois Laurent, marquis d’Arlandes flew for five and a half miles over Paris in a hot air balloon, the first manned flight in history. In 1784 the Paris police issued a decree forbidding balloon flights without a special permit. It had taken less than a year to decide that flying needed regulating in the interests of public safety. That was the beginning of what has become a vast and nutritious feeding ground for lawyers, and the beginning of what is technically known as air law.

Balloons – at first filled with heated air and then lighter-than-air gases – afforded mankind a new surge of vertiginous thrills and, with rather more scientific value, the ability to see the world from a god-like altitude. In the 19th century three-dimensional, detailed maps of great cities like Paris, London and Rome, initially sketched by balloonists, were best sellers. This striking new pictorial perspective was soon enhanced by more adventurous ballooning over natural wonders, like the Alps. And then it was quickly appropriated for military purposes, both for mapping likely battlefields and, actually on the battlefield, for observing artillery positions.

Now we have drones and the captured images can pass instantly and seamlessly into all the channels of social media. Pilots are following the highest and lowest of purposes, from voyeurism to scientific revelation. The genie is out of the bottle – or, more accurately, out of the box - and no amount of regulation will limit it.