RiteWing Zephyr II
RiteWing Zephyr II

Should business jet operators worry about drones?

A BJT column that recently won a silver award from the American Society of Business Publication Editors explores the risks.

Outer space was once the new frontier. Today, the frontier is arguably much closer to home and involves unmanned aircraft systems, commonly known as drones.

In the wrong hands, drones could be the most irritating aircraft of all time. In 2011, the FAA penalized Raphael Pirker $10,000 for employing his RiteWing Zephyr II drone to careen around the University of Virginia’s campus. Pirker had been engaged to take aerial photos of the campus, but like a sociable dog on the beach, his Zephyr reportedly flew through a tunnel with moving vehicles, ducked under a crane, made several excursions under an elevated pedestrian walkway, sailed to an altitude of 1,500 feet, hovered near an active heliport, and generally gave a good demonstration of a drone’s capacity for mischief. At one point, the Zephyr apparently charged a pedestrian on a sidewalk, “causing the individual to take immediate evasive maneuvers so as to avoid being struck.”

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Pirker demanded and got his day in court, and he was successful at first in putting up a viable defense. After his hearing, the administrative law judge of the National Transportation Safety Board dismissed the FAA’s complaint against Pirker, concluding that the Zephyr was a model aircraft, not a real one, and thus not technically subject to regulation by the agency. But the FAA, which if nothing else knows an aircraft when it sees one, appealed the decision to the NTSB. The NTSB’s unanimous decision in November 2014 determined that the Zephyr fit the definition of an aircraft, even though it was unmanned. The FAA was apparently pleased with the result, for it agreed to reduce Pirker’s penalty to $1,100.

Drones, of course, are capable of creating embarrassing situations and showing up at inappropriate locations; one famously landed on the White House lawn. Non-military weaponized drones have starred in popular YouTube videos—shooting guns, throwing flames, and the like—though a video showing a drone slicing off the winglet of a Southwest Airlines jet has been branded a hoax. Reported drone incidents have concerned everything from flying into skyscrapers to dropping water balloons on a high school event.

But intentionally or not, drones can damage traditional aircraft just by being in the wrong place at the wrong time. The airlines are reporting hundreds of drone sightings annually—and some of these reports involve more than just sightings. In October 2017, a drone collided with a King Air 100 that was landing at Quebec City, and the following month, a drone struck a U.S. Army Black Hawk helicopter over New York City. A 2018 helicopter crash landing in South Carolina was blamed on the need for drone-avoidance maneuvers.

Do drones pose a serious threat to commercial and business aviation? The FAA decided to find out. It funded research based on computer models buttressed by tests with actual impacts, including collision scenarios involving a business jet. The results, available in 2017, somewhat allayed concerns, especially for fast-moving jets, that drones powered by lithium batteries would pose a major danger for aircraft by exploding and catching fire on impact; instead, the tested drones basically dissolved before they could blow up.

On the other hand, drones were sometimes found to be capable of penetrating an aircraft’s skin upon impact and reaching the underlying primary structure. According to the research, fixed-wing drones (as opposed to so-called quadcopters) had the greatest potential for causing deep damage on impact, and modeling showed that fixed-wing drones (unlike quadcopters) could penetrate a business jet’s windshield. The research suggests that drone design regulations could materially lessen aircraft damage from drone impacts. Studies are ongoing.

Meanwhile, the FAA’s confusing regulatory history drones on. Sixty years ago, when Congress passed the Federal Aviation Act, it wisely defined “aircraft” to include “any airborne contrivance now known or hereafter invented, used, or designed for navigation or for flight in the air.” Nothing in the definition requires that the aircraft carry people or cargo. But Congress muddied the waters in 2012 when it enacted the so-called FAA Modernization and Reform Act, which prohibited the agency from promulgating “any rule or regulation regarding a model aircraft,” provided certain statutory limitations are followed. “Model aircraft” are defined as unmanned aircraft that are (among other things) “flown for hobby or recreational purposes.”

Historically, the FAA provided model aircraft enthusiasts only with suggestions like those found in its Advisory Circular 91-57 (1981); compliance by hobbyists was merely voluntary. In 2015, however, the agency issued regulations requiring all small drones to be registered with the FAA beginning in January 2016. Drone hobbyist John Taylor challenged that requirement, arguing that the 2012 Act prohibited it, and in 2017 a federal appeals court struck down the rule as it applied to hobby drones (but not drones engaged in commercial operations, like the Zephyr in the Pirker case). Taylor sued the FAA again after Congress extended the registration requirements to model aircraft last December as well, but that round was won by the FAA.

In 2016, the FAA issued final operational regulations (FAR Part 107). This was no simple task; the agency’s notice ran to 624 pages, some of which involved dealing with the 2,850 comments received on the “model aircraft” issue alone. This time, the FAA acknowledged that its hands were tied from making operational rules regulating hobby drones per se, so the new rules basically apply only to commercially employed drones. But the FAA pointed out that Congress still gave it authority to pursue enforcement actions “against persons operating model aircraft who endanger the safety of the National Airspace System.” Accordingly, as the use of hobby drones increases, the FAA will rely on its enforcement authority under FAR Part 13 to protect other users of airspace from rogue drones.

The new regulations contain many sensible provisions. Drones must weigh less than 55 pounds and must be operated by pilots certificated under Part 107. When flying drones, you must have them in your (or your observer’s) line of sight at all times, and you and your observer can operate only one drone at a time. As you might guess, flying in the dark of night is not permitted. Neither is flying over people who aren’t directly participating in the drone’s operation. There are limitations on altitude, speed, and carriage of cargo. Manned aircraft have the right-of-way, so if a business jet comes along, the drone must move over. Operations in everything except Class G airspace require permission from air traffic control. Many of the limitations may be waived by the FAA for operators who demonstrate that they can fly safely without endangering people or property.

Only time will tell whether it was wise to exclude hobby drones from these regulations.