On June 21, 2016, the FAA released what is known as Part 107, which are the FAA’s rules regulating the commercial operation of drones weighing less than 55 pounds. Before the issuance of these new rules, however, a person seeking to fly a drone for commercial purposes was required to petition the FAA for authorization. In particular, there were three ways to lawfully conduct drone operations: (1) as public aircraft operations pursuant to the requirements of the public aircraft statute and under a Certificate of Waiver or Authorization (COA) from the FAA; (2) as limited commercial operations by type certificated drone, provided the operator obtains a COA from the FAA; or (3) pursuant to Section 333 of the FAA Modernization and Reform Act (FMRA) grant of exemption provided the operator obtains a COA from the FAA.

Limbo

In an effort to streamline the operations of drones, the FAA issued the Part 107 rules. Those rules provide clarification and enhanced flexibility for those operating drones commercially. But many individuals that petitioned the FAA for a Section 333 Exemption prior to the release of those new rules are now in limbo. The affected petitioners are awaiting next steps from the FAA in determining the status of their Section 333 Exemption petitions.

Fortunately, the FAA has been notifying petitioners of the status of their Section 333 Exemption petitions. The FAA is now placing Section 333 Exemption petitioners in one of three tiers which serve to illustrate what steps the petitioner can take:

Tier Initial Assessment FAA Action Action by Applicant
1 The required operation of the drone may be conducted entirely under Part 107 without a waiver or exemption. The FAA will close the applicant’s docket. The FAA cautions the petitioner to carefully review Part 107 to ensure safe operation of the drone without additional regulatory relief.

The petitioner may begin operating the drone in compliance with the new rule on the effective date—August 29, 2016.

If the petitioner believes the operation of the drone falls in either Tier 2 or Tier 3, and the petitioner has not heard from the FAA within 60 days, contact the FAA (333exemptions@faa.gov).

2 The requested operation of the drone must be conducted with a waiver under Part 107. The FAA will contact the petitioner within 60 days.  The FAA will close the petitioner’s docket and consider their petition for exemption as a waiver application. If the petitioner believes the original request requires a waiver and does not hear back from the FAA within 60 days, contact the FAA (9-AFS-800-Part107Waivers@faa.gov).
3 The requested operation of the drone may not be conducted under Part 107 or waiver without further regulatory relief. The FAA will contact the petitioner within 60 days, and will continue to work on the petition for exemption. If the petitioner believes the original request requires an exemption (not a Tier 1 or 2 exemption), and the petitioner does not hear back from the FAA within 60 days, contact the FAA (333exemptions@faa.gov).

As the table suggests, remote pilots’ seeking to operate their drones higher than 400 feet, at night, over people, or any other operation deviating from the Part 107 regulations, can seek a certificate of waiver from the FAA. 14 C.F.R. §§ 107.200–205. Yet not all of those regulations can be waived. For example, the rules do not allow a waiver for 1) the operation of a drone from a moving vehicle or aircraft to carry the property of another for compensation or hire 2) the operation of a drone beyond the visual line of sight to carry the property of another for compensation or hire 3) the operation of a drone weighing 55 pounds or heavier, or 4) conducting autonomous operations without a remote pilot having the ability to direct the drone to ensure compliance with the requirements of Part 107.

So, until the FAA provides additional regulations, companies intending to conduct those operations must traverse the usual legal channels such as registering their aircraft under 14 C.F.R. Part 47, or pursuing a certificate of waiver or authorization, a certificate of aircraft worthiness, or a Section 333 Exemption. Hopefully the new regulations and the notices from the FAA will help streamline the legal and administrative processes as these regulatory laws evolve. Stay tuned as we keep you updated on the latest news in drone regulatory compliance.

Lynnel Reyes, a summer associate in the firm’s Las Vegas office, also contributed to this post.