 This is Think Tech Hawaii, Community Matters here. It is the noon hour on Thursday, folks. Ted Rawson here in downtown Honolulu, overlooking Waikiki right now, as a matter of fact, on our show, where the drone leads. We bring to our public news and information that's relevant and exciting about the emerging world of drones. And today, we have joining us from Washington, D.C., far across the Pacific and in the whole continent. We have Mark McKinnon of LeClaire Ryan LLC. Mark is a partner in the organization and the head of the Unmanned Air Systems Practices at LeClaire Ryan, which obviously is a purveyor of legal services. Mark, thanks for joining the show today. Sure to be here. Great. There you are. Next time, we'll get you here in your Oloha shirt and sitting in the actual studio here as opposed to giving your time across the way. By the way, this is Mark's first 30 non-billable minutes of the day here at the end of the day, and thanks for sticking around past the hour and hanging out with us, Mark. But first of all, I think a thanks to all of you in the legal profession who take the time to break down these really complex issues of legislation and emerging legislation and the contrariness of it so that we can all understand it. We in the business of UAS, whatever that may be, need a clear and simple way to understand it. You guys have done that. In particular, the webinar your company ran last week, which exposed in 37 slides the result of 1,400 pages of the recently authorized reauthorization of the FAA for the next five years. And there's a significant new information in there about UAS and drones, and we're really appreciative of you bringing that forward to us. So tell us a little bit about your company, and then, Mark, how you got into the unmanned air systems practices in that company. Well, what's more, Ryan, is actually a large nationwide law firm. We have offices all over the United States. It's a full-service law firm, every type of law imaginable, white collar crime, civil actions, government contracts, a little bit of everything. I'm part of the aviation practice, and I've been practicing aviation law for about 25, actually over 25 years now. And this is, I guess, kind of interesting because I started my career primarily dealing with manned aircraft accidents, particularly the big commercial air disasters, and going through the late 80s and the 90s, and even the really early 2000s, there was plenty of work to do because there were lots of plane crashes. But as commercial aviation has become safer and safer over the years, there's less and less accident work to do. So my practice kind of involved that I do a lot more FAA, regulatory and compliance work, NTSB issues, things like that, and then over the past, there's probably a legal interest in it. Obviously, there's a lot more work, legal work that needed to be done in unmanned aircraft, so I've kind of transitioned and opened up that whole new field now. But it's just an hour of growth of the fact that I've been doing aviation law for so long. What's most interesting is, as you said, the FAA taking the actions it's taking and the interest it's taking, of course, driven by Congress in many respects, but paying attention to UAS in a way none of us could ever have imagined. I can remember a sure four years ago where the industry was complaining all the time of the FAA, but you guys aren't making it fast enough, you're not doing this, you're not doing that, suddenly 3C3 hit the street. Not two years later, 107 hit the street. Now we have the next reauthorization with five years of continued development of UAS integration. It's just in an FAA we've never seen before. This is an incredible growth of regulatory material, but behind it is the thinking and the engineering and the science and the economics of making this a successful business. So I think we all take our hats off to the FAA for the motions they made, and I think we can thank our common friend Jim Williams for having a lot to do with that back in the days some time ago. Anyway, what's most intriguing is the key issues that are coming forward in this Reauthorization Act dealing with UAS. I made a list from our webinar a couple of days ago, your webinar. First of all, we have finally a definition of a community-based organization and a way to capture institutional knowledge coming out of the hobbyists and our creation people to not lose that, but capitalize on that going forward. I thought that was a significant highlight. I thought pulling all the UAS into regulations, be they 10,000-pound surveillance aircraft or two and a half-pound small aircraft or half-pound recreational toys are all going to be considered part of the airspace integration at some point in time, and we're going to see how the FAA works that out. Intriguing in particular was the GAO requirement to go generate a report after studying something on how low-altitude airspace integration might actually belong or be heavily directed by local civil agencies as opposed to fall under the FAA. And, of course, the test sites being extended to 2023 and being able to take in federal money, to me, is one of our test site directors. I think that's really important and interesting to us. Remote ID and tracking and some first level of defense for infrastructure and airports against UAS and a continued push on airspace integration. That UPP, IPP, the various initiatives that FAA has got going have to be now codified and made part of the future set of regulations. So absolutely hats off to whoever wrote that and whoever coordinated it and to you and the others who've been able to understand it and pass it to us, who never would have any of the foggiest idea of what's going on behind the scenes. So tell us a little bit if you can. How did this particular set of very wise guidances for the FAA to act upon, how did that get created? How does this Reauthorization Act get created? What influences it? Well, it's like the joke about making sausage. Nobody wants to see it made. The legislation is obviously a lot like that. And this bill in particular has a lot of hallmarks of sausage making because what happened was the last Reauthorization was in 2012. And these Reauthorizations are good for five years. And we were in the six and a half year, six and a half year of the five year authorization because what happened was when the five years was up in 2017, they had a very detailed bill that had a lot of this stuff in it. It didn't have quite as much in it, but it had a lot of this stuff in it. But one of the things that the house has been pushing for a long time, the House of Representatives has been the commercialization, we technically see privatization of the air traffic control system. And I shouldn't have actually said commercialization because the system that they want to set up is actually a nonprofit. And it's actually, the air traffic control system is actually run by nonprofits or not run by the government is a big example of that. The House of Representatives, particularly the chairman of the committee, this has been a big issue for him. People in the Senate did not like it and President Obama was strongly against it. So there was like, there was a competing bills between the two, the House and the Senate and they couldn't work out these issues. And so at the last minute they passed the Senate through another six months and I got accepted into another six months because nobody could agree. And then finally, I think with April of this year the House of Representatives decided that there wasn't going to be any common ground. So they just dropped that requirement entirely. And so they went ahead and they probably passed the bill and then it sat in the Senate from April, basically the first week of October. And the problem was once it got into the Senate there were provisions that people had put in that they didn't have anything to do with aviation and to do with rules about whether or not states could regulate of long haul interstate trucking. They caved on that and they pulled it out and then they were able to put it into lobbyists involved. Well that's great but once again the content in it is pretty good. You talked about the privatization having gone away which then opened the door to the success of the bill going through but still somebody had to create the contents. Somebody had to figure out that we're gonna deal with for example the test sites. Someone had to figure out what we're gonna do with the deal with remote ID and tracking. So there had to be well thought, well considered, well structured content that went into this that people had to be formatted in such a way people could understand it and then see the value and vote on it. So as an example, if I as just an individual out in the far corners of the world here had an idea how would I get my idea baked into the next version of this reauthorization in 2022? Well that's a difficult question because obviously the best place to start is with either your congressman or your senator and if they actually happen to be on the relevant committee that's a big help because they're the ones who are involved in the process. A lot of the larger institutions, Google, Amazon, people like the Academy of Model Aeronautics, they all have lobbyists and the lobbyists work very hard with the staff. The staff will draft a regulation and they might not see some of the nuances of it that industry will come in, that the FA will come in and they'll make comments and say, well this needs to be changed or you don't understand this is the problem you're setting up and you need to fix it. So that's how a lot of that happens. The ability of an individual to directly influence it obviously is pretty limited but it's your ability to basically get in front of a congressman and get his attention and have you take him seriously. I think some congressmen are better than others. In addition, each of the committees do have staff, the career staff who work on these issues and they're actually pretty knowledgeable. If you can contact some of the staff sometimes they'll listen to what you have to say particularly if you have something important to say. So that's primarily the best ways to get involved. Okay, I just wanted to make a comment. We just, I don't know if you saw the subtitle come up but we labeled this episode leaping into the future reacting to all the changes that are coming in the consolidation of thinking in the UAS domain and we called it that, not quite fancifully but relative to the speed and pace at which regulatory materials been developed in the past on UAS, what we see here is truly leaping into the future because we're looking at basically setting the stage for the online of sight and a much improved waiver situation and true integration. So if you were to think about the elements that are affecting UAS in this reauthorization, what do you, tell us what you think is gonna occur now. Now the FAA has been given this guidance which is the reauthorization. Now they've got to do something with it. In some cases there's law changes, in some cases there's probably interpretations but there certainly is study and there's research and work that has to be done behind the scenes before these instructions can be converted into regulations. So how does that all gonna work? Yeah, well what's gonna happen? Actually there are some rule makings that are going on and there have been some impediments to them. The big one was, I don't know if you remember, I guess it was over a year ago now, there was a lot of work that was done on the Flight Over People rule and the Flight Over People rule, you know the reason they started is the micro UAS rule and then they just converted that because they realized it wasn't gonna be dealing with micro, it was gonna be dealing with what are the rules for flying over large assemblies of people and they did a lot of work on that. They had an ARC, an aviation rulemaking committee that Medi came up with some very good recommendations. The FAA had a draft rule. The draft rule went to Oira which is one of the entities at the White House which reviews regulations and they take comments from stakeholders and they take comments from other governmental agencies before the public basically gets to see it. And one of the big issues was, I did it at that point and said we don't want you to come up with a rule for flying over people because we think there are security issues with it and the main one is cited over mass assembly of people we know it's not supposed to be there and we can take action. With the rules that you're thinking about coming up with which are performance based, we won't be able to tell if we see a drone, is it a good drone, is it a bad drone? How do we engage intent? Unless you come up with a way for remote identification of unmanned aircraft, we really don't want you to do this. And that's why it's been, that thing was completely taken off the table. And of course remote identification also really is an impediment to beyond visual line of sight because unless you can remotely identify aircraft it's difficult to coordinate aircraft in the airspace. So I think one of the things that this doesn't, when we talked about, you mentioned the, one of the big impediments was, under section 336 of the original 2012 act, we're making any rules regarding model aircrafts to that will actually allow the F-8 to set some design standards for 107 who are going to potentially be flying over people. It's hobbyists as well, they're going to want to try to do it. Not being able to set any design standards for hobby aircraft, I think that was a big impediment. And so that's one of the big changes I think that it's going to open that up and that in turn is going to open up some of these other areas for, you know, moving forward on their rulemaking. Okay, well, so you've kind of outlined the process of how the realisation formed up anyway. And you've now talked about how FAA will react to the instructions that's been given. When we get back from our first and our only one minute break here, let's talk about the specific items that affect UAS and sort of at a look forward to what we might expect coming out of that in one minute. This is Think Tech Hawaii, raising public awareness. This message was brought to you by UnitedHealthcare and AARP Foundation. Welcome to Sister Power. I'm your host, Sharon Thomas Yarbrough, where we motivate, educate and power and inspire all women. We are live here every other Thursday at 4 p.m. And we welcome you to join us here at Sister Power. Aloha and thank you. It is still Thursday, noon hour folks. We've got Ralston here in Honolulu and joining us from far across the sea after the sun has gone down. I think over there in Washington, DC, we have Mark McKinnon of Leclerc Ryan LLC. Mark is a partner in the law firm and the head of the Unmanned Air Systems Practice within that law firm. And the fact that you even have an unmanned systems division within the law firm, that alone says a lot about the emergence of this business, Mark. So thank you for taking your evening time and coming on with us here. We spoke before the break about how the Realtorization Act was formed, what the content in it is, how the content was sorted out by various forces. And now we have, if we can, talk about the specific items that are gonna affect UAS in a big picture and what we might see coming out of them and maybe even some idea of the timing. So if I can work with this list here, we talked a little bit about before the break about the definition of a community-based organization and the way that pools institutional knowledge and goes forward. That just looks like it's positive all the way around. I don't see any downside or any confusion about that, do you? No, I don't. One of the interesting things I think coming out of it going forward though is the requirement that they all be, that if you're gonna be certified as a community-based organization and you're gonna have two things about it. Really, the only existing community-based organization I think that people recognize is the Academy of Model Ergonomics. And the FAA, they've kind of acknowledged in some of their publications that they would consider that to be a community-based organization even before these requirements came out. But under the old section 336, if you were a hobbyist and you were flying under the community-based organization's rules, community-based organization had basically its own safety code and that's what you had to follow. Now part of being defined as a community-based organization, it gives the FAA actually a say in how the community-based organization creates its safety code. So even though you're working under the auspices of this private entity, the private entity is going to have to take input now from the FAA when it creates its safety code. So I think that's actually one of the other big changes. And the other one that's interesting is the requirement that it be a nonprofit. Now Academy of Model Ergonomics is a nonprofit, but I think there was sort of questions people thought that once recognized as one, you'd have for-profit businesses that would declare themselves this. And that's basically foreclosed. You basically have to be a nonprofit and you have to qualify under a 501C3 under the internal revenue code to do that. So it's going to be a little bit more limited. Well, the other thing I think about that is that now there's a compliance requirement that all users, all recreational people, educational people, whoever they may be operating under that rubric are going to have to conform and comply with whatever those terms are. And that is such a antithetical from where we've been all this time. And a guy gets a thing, takes it out of a box, looks at the FAA rules, it's way too complicated to understand so it can't possibly apply to him and he goes off and does this thing. So we've got a major educational challenge ahead of us to get that story out. And I would say that that is going to be the operational factor most important there. But pulling all unmanned air systems into the regulations means that those items that are considered recreational today are going to have to be registered, they're going to have to be in this conformance domain. So we might even have technical requirements, I presume, in terms of the remote identification as such are not now going to apply to all these aircraft. So there's a technical change coming here as well. Yeah, I think so. In particular, the FAA has more flexibility. It can define weight classes. So my guess is there probably will be, for some of things like remote identification, there probably will be a lower limit, either a performance or weight, where that performance, that won't be required. But I wouldn't, it wouldn't be surprised, wouldn't surprise me if something about the size of a DJI Phantom, when used as a hobbyist would have some kind, whatever the remote identification technology is going to be, that they'll be a requirement that it'd be equipped with that. So I think anything bad there, one pound, two pounds, certainly anything that has the capability of flying beyond the visual line of sight, I think would fall into that category. So we're going to have some categorization into those things that are pretty much benign and those things that are not benign, and that'll be the discriminator. The GAO challenge to go figure out how to deal with low altitude integration and involve local agencies. We have that out here a lot. We have the tourist industry, which people come and don't understand rules, bring their drone and fly around Waikiki. We have the situation at the volcano, which ultimately had the UAS operation had to be criminalized, operating inside the TFR. So this has been quite a challenge for the GAO. There's so many different geopolitical alignments here in the U.S. from very remote to very compact. So how do you think that's going to go in terms of their ability to get a handle on how to deal with low altitude integration? I think ultimately, probably what they'll wind up doing is they'll do a survey of all the existing state laws that are out there at this time. The big example is Nevada. Nevada actually has a law where flights below a certain altitude are considered to be a trespass. And that's, nobody has challenged that officially in the courts yet. The FAA has made it clear that they think that is a violation of their prerogative under the federal preemption and federal control of the airspace. But they haven't done anything to take Nevada to court over it yet. So I think what ultimately what Congress would like to do is to get an idea of what the needs are of the airspace as well. They want the GAO to determine if we seed from the ground to 100 feet or 200 feet or 300 feet to the state and local government to let them have more of a say in where you can and can't fly. What impact will that have on some of these big, potential commercial engines like a package delivery and those types of things that they clearly don't want to be in a position of choking that off by having a patchwork where every city and county's got its own airspace requirements for people who just don't, regardless of what the GAO finds and regardless of what Congress ultimately decides, it's something that the courts will have to decide. Because the courts will have to decide at what point as a property owner does your right to use your land mean that you have to be able to control at least some part of the airspace. And if you're deprived of that, at what point do you basically lose the ability to use your land the way you want to use it? The Supreme Court will have to decide. You're casing that field since the 40s. So right to be decided, I think at this point, it's just gonna take a while to work its way through the system. You know, I like the fact that that's gonna happen because we have a lot of issues here in our legislature where bills come forward that don't understand the full limitations of the current laws, don't understand the capabilities of drones. We have a kind of a complex situation where bills come forward that are hard to understand and as a result, none of them, I don't think any of them in our state in the last five years have been executed. And but this summary of national perspectives that GAO is gonna create, I think we'll go a long way towards providing a standard that our legislature can look at in terms of dealing with its means of handling privacy, for example, or trespass. The test sites, most interesting to me, test sites and the extension of them and the way federal funds can get into the test sites, what do you think about that? What do you see coming forward in that regard? I think that's a big deal because originally it was one of those things where FAA didn't really want the test sites. I mean, the test sites were kind of seen as a solution in search of a problem that as far as the FAA was concerned, they had enough on their blades. They didn't really want to be dealing with a mandate. They didn't have money associated with it. So they, I mean, they had no funding to do it, but they were told they had to coordinate it with them. And they said, I think certainly before the test sites were up and running, there was a lot of resistance at FAA. And I think definitely over time, that's completely changed. And I mean, a lot of the progress that's been made of things like UTM and experimental work on package delivery. I mean, none of that could have been gotten, we couldn't be where we are today without the test sites because the FAA has basically empowered the test sites to do things that you couldn't do if you were just a commercial operator and you wanted to fly over your own property or in some part of the airspace that the FAA hasn't agreed to work hand in hand with the test sites. And I said, I think of the test sites and then actually to put money on it, I think that's a very good, there's still a lot of work that needs to be done and there has to be places where it can be done. The means by which federal funding can flow to the test sites, that's gonna be, I would presume again, congressional delegation influence to go ahead and make that happen. That reasonable assumption? Yeah. And to a certain extent, I mean, it's part of the problem is since the test sites didn't have any money, they had to work to outside sources for money and they've been very good at that. But again, that cuts out certain people who simply can't, the test site can't give it services away for free in a lot of circumstances. And startups don't always necessarily have the money to be able to come up with the funds to try and do some of the work. Again, particularly early on when the test sites were first gearing up and money was short everywhere. Well, it's still short. I can tell you that from our perspective here as running in one of the test ranges, but it's good to see this change coming. We do have just a few more minutes here. Remote ID and tracking, that's pretty straightforward. Airspace integration, that's sort of like the culmination of all this into something that is integratable. Most interesting, I take the perspective that we need some good mathematical understanding of complex systems that interact and such. And I think there's an academic role here in the integration element. What's your thoughts on that in our last declining minute here, Mark? True, I mean, I think it's the UTM issue and how unmanned traffic management is going to fit into the airspace. I think it's probably the ultimate challenge because the FAs made it clear that they have a lot of entrenched users of the airspace, all of the manned aircraft, all the commercial operators and private operators, and they were not going to reorder the airspace just to accommodate unmanned aircraft. So I think trying to do the work where the unmanned aircraft can fit seamlessly into the existing structure, that's where the future is. If that can't be done, then it simply can't be integrated into the airspace. And I think really the research universities and NASA and organizations like that, the private industry can't really do a lot of that on their own without the cooperation of these reservoirs of knowledge. Well, we certainly salute the FAA for the IPP program and then the UPP which followed it and things we'll hear of in the future that are going to extend beyond that and we hope to be part of that. And Mark McKinnon, I want to thank you very much. First for being on this show and secondly for the work you've done to bring these items out to the public in general through the webinars and such you promote. So once again, how do folks get a hold of you at LeClaire Ryan if they want to? It's Mark.McKinnon at MARK. Okay, and we thank you very much for being on. And we'll get you on real time here in Hawaii next time you're out here or maybe again by Skype. So thanks a lot, Mark and we'll see you all in two weeks, folks.