Lundberg Email

Senator Lundberg,

I don’t know if you remember me, but I am the son of Ronnie McKay and a homeschool alumnus who interned for you when I was in high school, when you were a state representative. Interning for you was one of my most memorable experiences in high school, and it contributed to my long lasting interest in law and government.

I am writing you today because I have just learned from a group I am involved in that you and Senator Linda Newell 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 a UAV for recreational or commercial use or for UAV research, the person must obtain an experimental airworthiness certificate or certificate of waiver or authorization from the FAA."

Because I remember you as a strong conservative who believes in individual liberty and protecting small businesses against intrusive, innovation-stifling government regulation, 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. As the owner of a videography business yourself, I am sure you can appreciate how useful it would be to be able to easily capture low level aerial video of everything from weddings to real estate.

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.

Legal Impact
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 $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.

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. 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. As a conservative, I do not believe this would be an outcome you would desire, nor do I believe you value government intrusion upon individual freedom for its own sake. 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 above highlighted language, and indeed any 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.

Sincerely,

Patrick McKay