Newell Email

Senator Newell,

I am writing you today because I have just learned from a group I am involved in that you and Senator Kevin Lundberg intend to introduce a bill in the Senate regarding unmanned aircraft or drones, which among other things would contain the following language:

IF A PERSON OR ENTITY WANTS TO USE AN UNMANNED AERIAL
VEHICLE FOR RECREATIONAL OR COMMERCIAL USE OR FOR UNMANNED
AERIAL VEHICLE RESEARCH, THE PERSON MUST OBTAIN AN EXPERIMENTAL
AIRWORTHINESS CERTIFICATE OR CERTIFICATE OF WAIVER OR
AUTHORIZATION FROM THE FEDERAL AVIATION ADMINISTRATION.

I must assume you simply do not understand how devastating this language would be to the thriving amateur and commercial UAV sectors in Colorado. To put it simply, if this language was enacted into law, it would destroy a safe and enjoyable hobby practiced by thousands of Coloradans and make criminals of me and my friends who have harmed no one with our aircraft. It would also destroy dozens of innovative small businesses which have the potential to contribute greatly to Colorado’s economy in the coming years.

About four years ago, I took up flying remote control airplanes as a hobby, and I have been heavily involved in the RC/UAV community ever since. I personally own a quadcopter and a fixed wing model airplane which are both flown through a live video feed from a camera on the craft. I am part of an informal group of UAV enthusiasts who regularly get together to fly our aircraft. We have annual meetups out in South Park where we regularly have over 50 people attending, as well as smaller meetups around the Denver area.

My favorite thing to do with my plane is take it up in the mountains and fly it over the peaks and down mountain sides, capturing incredible video footage that I then edit into music videos on YouTube such as this one: https://www.youtube.com/watch?v=IRbKxc-Z_dg. Because I am a licensed attorney, I have closely followed the legal aspects of this hobby and I am intimately acquainted with the ongoing regulatory process surrounding it.

UAV Use in Colorado
As they have become more sophisticated, what used to simply be called RC planes/helicopters or model aircraft have come to be more commonly called drones or UAVs. Unfortunately these terms carry with them the stigma of association with military drones and the targeted killing of terrorism suspects overseas, which has driven a fear of these devices and a desire to restrict their domestic use that is frankly unjustified. It is important to note that the devices used in the civilian market are simply sophisticated model aircraft of the size that have been flown by model aviation enthusiasts for decades.

Altogether, there are probably thousands of model aircraft/UAV hobbyists in Colorado and dozens of innovative new businesses which would be affected by the language in your bill. Though I personally fly UAVs only as a hobbyist, several of my more entrepreneurial friends have established small businesses centered on UAVs. I know several people who own small aerial photography businesses and use multicopters to film everything from movie scenes and commercials to real estate videos for high end resorts and homes in the mountains.

One of my close friends works for a company called Agribotix, using small custom built UAVs for agriculture survey and crop monitoring. I know the owners of two new hobby shops which recently opened in Castle Rock catering specifically toward multicopter enthusiasts. These exist alongside dozens of local hobby shops throughout Colorado catering to more traditional RC model enthusiasts. There are also dozens of traditional model aircraft flying clubs in Colorado associated with the Academy of Model Aeronautics, who fly at long-established official flying fields such as those at Cherry Creek and Chatfield State Parks.

Requiring FAA Waivers Would Destroy Model Aviation and Unmanned Aircraft Businesses
First it needs to be noted that the state legislature is NOT the appropriate place to address aircraft and airspace regulation. The Federal Government through the FAA has exclusive jurisdiction over all aircraft and airspace regulation in the United States, and any state legislation will be considered preempted by federal regulation. Assuming for the moment that your bill would not be preempted however, it would have devastating consequences for the unmanned aircraft community in Colorado.

If your bill passes with the included language above, it would essentially outlaw everything from my friends using drones for commercial aerial photography and crop monitoring, to myself flying my plane in the mountains, to traditional RC hobbyists flying model aircraft at the Cherry Creek model airfield, to a 12 year-old flying a tiny 5oz $30 toy RC helicopter purchased from Target in his backyard. All of these uses, which until now have been completely unregulated by the government, would now require a permit from the FAA which is not even available.

Model aviation has existed as a popular American hobby for decades with no formal regulation whatsoever, other than voluntary guidelines published by the FAA in 1981. The Academy of Model Aeronautics, a national organization representing model aircraft enthusiasts, has over 140,000 members. The FAA has been working on regulations for commercial UAVs for over seven years, and all indications are that it will take two to three more years before they have any regulations in place. In 2012, Congress expressly prohibited the FAA from imposing any new regulations on model aircraft hobbyists. The FAA currently has the authority to fine them for careless and reckless operation which endangers other users of the national airspace, but it is not permitted to impose any kind of licensing or certification requirement on them. Thus the language in your bill requires hobbyists to get a permit from the FAA which it is not even authorized to give, and which it has no process to issue. Because of this, your bill would essentially outlaw ALL hobbyist use of RC aircraft in Colorado.

As far as commercial use, the FAA claims that commercial use of unmanned aircraft is currently prohibited, but this claim relies on an untested legal theory that has never been litigated in court, and which many legal experts consider dubious. According to a 2012 directive from Congress, the FAA has begun issuing waivers to a limited number of commercial users of unmanned aircraft, but so far less than a dozen have been issued and include highly restrictive requirements (including the requirement to have a private pilot’s license to fly a 3 lb quadcopter).

Because of the high cost of legal fees to obtain a waiver and the requirement to become a licensed pilot (which most UAV operators are not) these waivers are effectively useless for the hundreds of small business across America (mostly small photography businesses) already using UAVs commercially. Since commercial use of unmanned aircraft currently exists in a legal gray area and it is uncertain whether these waivers are even actually required, most small UAV operators do not even try to get them. The FAA has so far never attempted to enforce its purported prohibition on commercial UAV use directly, and has thus far tolerated most unsanctioned operations as long as they operate safely and do not engage in reckless behavior. Most commercial UAV operators are fully insured, and one of the major insurers of commercial UAVs is a Colorado-based business called Transport Risk Management.

The result of all this has been an unofficial détente between the FAA and commercial UAV operators, with the FAA claiming such use is prohibited but not making any serious effort to enforce that prohibition, allowing businesses willing to operate in an environment with a high degree of legal uncertainty to continue to innovate and make use of this technology. Your legislation would essentially destroy this delicate balance and force all such businesses operating in Colorado to shut down or obtain an expensive waiver which would likely not even permit the type of operation they do. Many of my friends and acquaintances would lose their livelihood, even though none of them has ever caused harm to anyone.

The Bill’s Operational Requirements are Impossible to Meet
Additionally, even if the waiver requirement in the bill is removed, the rest of the requirements in the bill are impossible for either hobbyists or commercial users to comply with. Section 1 states:

A PRIVATE PERSON WHO USES AN UNMANNED AERIAL VEHICLE SHALL
MEET THE EQUIPMENT REQUIREMENTS APPLICABLE TO THE CLASS OF
AIRSPACE WITHIN WHICH THE UNMANNED AERIAL VEHICLE IS OPERATED.

The most common types of equipment required for use in certain airspace classes are transponders and radio systems to communicate with air traffic control—neither of which are authorized by the FAA to be carried onboard an unmanned aircraft. In the case of smaller craft, doing so would indeed be physically impossible, as the radios and transponders are larger than the craft itself.

Section 2 states:
(2) A PRIVATE PERSON WHO USES AN UNMANNED AERIAL VEHICLE
FOR RECREATIONAL USE SHALL COMPLY WITH ALL INSTRUMENT FLIGHT
RULES, INCLUDING BUT NOT LIMITED TO FLYING THE UNMANNED AERIAL
VEHICLE WITHIN THE OPERATOR'S SIGHT, FOR NO FARTHER THAN THREE
MILES, FOR NO MORE THAN FOUR HUNDRED FEET ABOVE THE GROUND,
DURING DAYLIGHT, INSIDE UNCONTROLLED AIRSPACE, AND AT LEAST FIVE
MILES FROM AN AIRPORT OR OTHER LOCATION WITH AVIATION ACTIVITIES.

This provision demonstrates a profound misunderstanding of aviation law, as none of these things are part of “Instrument Flight Rules”, which are the rules that pilots of manned aircraft must follow in order to fly solely by instruments in bad weather conditions with low visibility. They require among other things, a pilot’s license with an instrument flight rating, and flight plans to be filed with air traffic control. None of that has any applicability to model aircraft, and I cannot believe it was your intention to impose such requirements on model aircraft enthusiasts flying a 3lb craft in a neighborhood park.

The other requirements in this provision are based on a misinterpretation of current FAA regulations for model aircraft, which are not actually written into law. There is no 400 foot rule, only a voluntarily guideline published by the FAA in 1981 that recommends model aircraft stay below 400 feet. The five mile rule is also not actually a rule, but a condition imposed by Congress in the FAA Reauthorization Act of 2012 in order to be exempt from future FAA regulation. That was never meant to be a rule imposed directly on the public; rather that provision is directed solely at the FAA and dictates only what types of model aircraft operations the FAA is not allowed to regulate.

The actual wording of the exemption exempts from future regulation model aircraft operations more than 5 miles away from an airport, or within 5 miles of an airport with the permission of air traffic control. Even if the congressional act was interpreted as a direct rule binding on the public, one can still fly within 5 miles of an airport if they call the airport and get permission. If however this provision is written into state law as an absolute prohibition, it would force many long established model aircraft flying fields to close which have been operating for decades on or near airport property. For example, the model aircraft field at Cherry Creek State Park is less than 3 miles away from Centennial Airport in Denver. Other long established and officially sanctioned model aircraft fields are actually located on the grounds of airports, with the full blessing of the airport owners.

There is also no statutory requirement that model aircraft be kept within visual line of sight. Flying within visual line of sight is a condition of the Congressional exemption from future regulation, but there is no current requirement legally binding on the public to do so. Thousands of model aircraft hobbyists including myself enjoy the hobby of first-person-view (FPV) flying, where we fly through a live video feed displayed on an LCD screen or video goggles. The chief benefit of this technology is that we can fly further than we can directly see our craft. Contrary to what some people believe, this is in fact completely safe and poses no risk of a collision with a manned aircraft, as we do not need to be able to see the RC model in order to avoid collisions. Manned aircraft can be heard and seen for many miles, and all an FPV pilot has to do is look up when he hears a manned aircraft approaching and determine if it is anywhere near where he knows his model to be, and if so descend and fly back toward himself to avoid it. No FPV model aircraft has ever been shown to pose a collision risk to a manned aircraft, and it has never been empirically  shown that requiring a UAV to stay within visual line of sight is necessary for safety.

Finally the prohibition on autonomous flight would actually make RC aircraft less safe, as it would prohibit autopilot devices which are built-in to many commercially available model aircraft, which can take over control and autonomously fly a model back to its launch point in the event the control signal is lost.

Safety and Privacy
Model aviation is an extraordinarily safe activity that has been practiced for over 50 years with only a handful of serious accidents in all that time. It is in fact far safer than many other hobbies Coloradans are known to enjoy, including skiing, rock climbing, mountaineering, whitewater rafting, etc. Most hobbyists are extremely careful not to endanger anyone with their craft or fly anywhere where they could interfere with manned aircraft. Commercial users are even more cautious, as their livelihood would be at risk in the event of a lawsuit resulting from an accident. Though much has been said in the media about privacy concerns related to drones, this concern is highly overblown. Virtually no one uses drones/model aircraft for any kind of surveillance, and current models of popular drones would be highly impractical for use as any kind of spying device. This is because they are noisy, attract attention, have short flight times, and are generally equipped with wide-angle cameras incapable of distinguishing individuals from any appreciable distance.

Because of this, I am uncertain what harm your bill is designed to solve, or why you feel it necessary to restrict UAV operators in this way. Given that regulation of aviation and the use of the national airspace is exclusively under the jurisdiction of the FAA, and any state legislation in this area will be automatically preempted by whatever regulations the FAA establishes, I do not see any need for state legislation restricting civilian use of unmanned aircraft at this time. Such legislation would only serve to destroy a popular and productive hobby enjoyed by many, and harm Colorado’s economy by shutting down innovative small businesses pioneering new uses of technology. Colorado is known for its aerospace industry, and this field is on the cutting edge of aerospace science, with the potential to inspire countless young people to become engineers and join various STEM fields. If your bill passes and model aviation is banned in Colorado, that potential will be lost. I hope you see that the harm caused by this bill would vastly outweigh any benefits you may perceive.

I strongly urge you to reconsider this bill and remove the all language affecting civilian (non-government) UAV operators before it is introduced. I have heard you will be holding a meeting on this bill this coming Tuesday which I hope to attend. In the meantime if you wish to contact me about this, my contact information is below. I and others I know would also be happy to schedule a demonstration of our aircraft for you so that you can better understand the technology and how we are using UAVs in Colorado.

Patrick McKay