General UAS News and Developments

On March 18, Fox attorneys Mark Connot, Brian Rothery, Christopher Beall and Imraan Farukhi participated in a panel discussion entitled “Up in the Air: 2017 Drone Law Update” as part of the Third Annual New York City Drone Film Festival. The festival is “the world’s first event exclusively dedicated to celebrating the art of drone cinematography,” and offers an international platform for filmmakers from around the world to exhibit their work for the drone community and the film industry.

The discussion covered current laws, First Amendment issues, rights clearances for filmmakers licenses their footage and more. We invite you to watch the full 45-minute discussion, available on YouTube and below, and to find out more about this annual event.

Recently I had the opportunity to speak to a college class regarding public perception and policy regarding drones and other autonomous vehicles. In preparing for my presentation, I realized several things that I already knew, but had not really thought about it.

In considering how best to provide an overview of how quickly technology is adapted once people understand its capabilities, it dawned on me that today’s college students have only known a world with smart phones. The first iPhone was introduced in June of 2007, when most college students were in elementary school.

In contrasting the public’s quick adoption of smartphones with the public’s far slower openness to drone technology, I asked the students to ponder how successful the iPhone would have been if only a handful of apps were available for the first few years after the iPhone’s introduction. In essence, even if smart phones were capable of supporting millions of varied applications, if the apps themselves were unavailable, the success of smart phones would have been in peril.

Okay, you say, I get that this is public perception, but how does it relate to policy? Until the public recognizes a tangible benefit from technology, it tends to be apprehensive of the technology.

In the early 20th century, cities passed laws that matched the speed limit to the pace of horse-drawn wagons, or no more than 5 miles per hour. In England, some small towns required the driver to notify the constable, who would then walk in front of the car waving two red warning flags.

In 1900, there were 8,000 automobiles in the United States. By 1920, that number had grown to 8,000,000. A large part of the increase is due to lowered production costs as a result of Henry Ford’s assembly line, but another factor was the public’s increasing understanding of the fact that automobiles could have a positive impact on their lives.


5756268 - illustration of a ford model t.

In other words, both decreased cost as well as the recognition of a tangible benefit resulted in the public embracing new technology. The public’s newfound perception of automobiles as positive, rather than negative, then helped to shape policy, such as increasing the 5 mph speed limit, enacting gasoline taxes to fund roads, creating parking lots, etc.

As noted above, once the public embraces new technology, it is adopted quickly and the technology itself evolves rapidly.  Orville Wright piloted the first powered airplane in 1903. That first flight lasted 12 seconds and the aircraft flew a mere 120 feet.  Orville lived to see Chuck Yeager break the sound barrier in 1947. Likewise, Charles Lindbergh flew across the Atlantic in 1927 and he was present at Cape Canaveral when Neil Armstrong, Buzz Aldrin and Michael Collins climbed into the rocket that would take them to the moon.

If the public had not embraced automobiles and airplanes, those industries would not have enjoyed the success they have, at least not in the timeframe in which it occurred. Without roads and other infrastructure, the public’s eagerness to embrace automobiles would have been stymied. Without airports and regulations to ensure safe flights, as well as the ability to fly long distances, airlines would have struggled to succeed.

Until the FAA permits beyond visual line of sight (“BVLOS”) operation of drones, the public has no idea of the capabilities of drones and the myriad of ways in which their lives will be positively impacted by drones. However, when BVLOS is permitted, I predict the public will quickly comprehend the significant positive impact of drones and embrace the technology.

When will I be able to fly beyond visual line of sight? When will I be able to operate a drone over people?

In the world of drone law (and in the world of drones in general), hardly a week, or even a day, passes without one or both of those questions being asked.

The drone industry welcomed the long-awaited drone regulations of Part 107, which became effective in August of 2016. However, that only whetted our appetite for more.

The current presidential administration’s public pronouncements regarding scaling back government regulations creates a concern within the commercial drone industry. Contrary to most industries, in the commercial drone industry more regulations are necessary for the drone industry to advance. Targeted regulations that permit and define the parameters of beyond visual line of sight operations, flights over people, and nighttime operations will enable the drone industry to reach its potential.

62815354 - drone regulations banner in wood type

Recently the Small UAV Coalition sent a letter to the new Director of the Office of Management and Budget requesting a limited waiver from the moratorium on new regulations. The Small UAV Coalition has a diverse membership that have all have a keen interest in the commercial use of drones, inclduing AirMap, Amazon Prime Air, Google[x], Intel, Kespry, PrecisionHawk, Verizon Ventures, Aerware, AGI, Flirtey, Fresh Air Educators, T-Mobile, and WalMart.

In that letter, the Small UAV Coalition noted that there are currently three pending rulemaking actions regarding drone operations:

  • Notice of Proposed Rulemaking, Operation of Small Unmanned aircraft Over People
  • Final Rule, Operation of Small Unmanned Aircraft Over People
  • Notice of Proposed Rulemaking, Expanded Operations

Part 107 includes a provision for the FAA to grant waivers that would permit drone operations over people and beyond visual line of sight. However, since Part 107 became effective in August of 2016, the FAA has only granted one waiver to permit operations over people and only four waivers to operate beyond visual line of sight.

As is the case with most technology, regulations pace far behind what is needed for the technology to evolve and thrive. The technology exists, but without regulations permitting its use, it cannot be utilized.

As the Small UAV Coalition noted in its letter, without regulations that permit beyond visual line of sight, operations over people, and nighttime operations, the commercial UAS industry in the United States risks stalling and falling behind other countries, such as those in the European Union, China, and Australia.

19666995 - rubber stamps marked with regulations and rules

In 2012, Congress approved the FAA Modernization and Reform Act (FMRA) requiring the FAA to integrate drones into the National Airspace System (NAS). To that end, the FMRA specifically directed the FAA to issue proposed rules to fully regulate commercial drones and have the rules finalized by September 30, 2015. Hence, the FAA published a Small UAS Notice of Proposed Rulemaking (NPRM)—or Part 107—in early 2015. In a previous article, we discussed these proposed rules. The September 30, 2015, deadline came and went without any word from the FAA regarding final rules…until now.

Yesterday the FAA released its final Part 107 regulations, allowing the operation of commercial drones in the NAS. A comprehensive analysis of these regulations is forthcoming, but in the meantime, here are some notable highlights of Part 107:

Operational Limitations:

  • Drones are restricted from flying higher than 400 feet above ground level, unless the drone: (1) is flown within a 400-foot radius of a structure, and (2) does not fly higher than 400 feet above the structure’s immediate uppermost limit.
  • These rules will go into effect on August 29, 2016, and do not apply to hobby or recreational drones.

48063974 - flying through the town of drones tokyo japan image

Remote Pilot Requirements:

  • Prior to the final Part 107 regulations, in order to operate a commercial drone with a Section 333 Exemption, the drone operator was required to have an airline transport, commercial, private, recreational, or sport pilot license (also known as Part 61 certificate holders). Under Part 107 regulations, Part 61 certificate holders (other than student pilots) may still operate a commercial drone as long as they pass an online training course and have completed a flight review in the last 24 months. The Rules also provide an alternative mechanism for commercial drone operators, referred to as a “remote pilot” in Part 107. To obtain a remote pilot certificate, the applicant—minimum age is 16 years old—must “pass an initial aeronautical test” and complete an application through the FAA. Both those who qualify under Part 61 as well as those who pass the initial aeronautical test under Part 107 must be vetted by the Transportation Security Administration.
  • Remote Pilots cannot fly solely pursuant to Part 107 rules under certain circumstances: beyond visual line of sight operations, night operations, drones weighing 55 pounds or more, operating higher than 400 feet (except near structures as noted above), reaching speeds faster than 100 MPH, and operating over persons. A remote pilot would need a standard Certificate of Waiver or Authorization, a special Section 333 Exemption, or a combination of a Special Airworthiness Certificate and Certificate of Authorization.
  • Section 333 Exemption holders may still operate a drone pursuant to the terms of their authorized exemption despite the new regulations.

You can read the full text and summary sheet of the regulations here.

The regulations provide commercial drone operators some clarity about the commercial use of their drones. Moreover, the regulations also remove the requirement of obtaining a Section 333 exemption for commercial drone operations as long as the operation complies with Part 107. Stay tuned for updates.

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

Today, FAA Administrator Michael Huerta (“Huerta”) announced plans to make it easier for students to fly drones as part of their coursework. Huerta first recognized the uncertainty surrounding when a drone is a model aircraft operated for “hobby or recreation.” That uncertainty, Huerta noted, left a number of questions on the use of model aircraft by students and faculty in connection with participation in coursework at educational institutions.

As part of Huerta’s announcement, the FAA released an Interpretation Memorandum (“Memo”) that specifically addressed two key issues: (1) the use of drones for “hobby or recreational purposes” at educational institutions and community-sponsored events (e.g., demonstrations at schools, boy or girl scout meetings, science clubs, etc.) and (2) student and faculty use of drones in furtherance of receiving and providing instruction at educational institutions. Essentially, the FAA sought to clarify the applicability of Section 336 of the FAA Modernization and Reform Act of 2012 (“FMRA”) in the educational context.

Drone teacher

Hobbyist Use of Drones to Conduct Demonstrations

As a matter of background, Section 336(a) of the FMRA provides special rules for model aircraft. Those rules require, among other things, that the aircraft be: (1) flown strictly for hobby or recreational use; (2) limited to not more than 55 pounds and; (3) operated in accordance with a community-based standards of safety guidelines and within the programming of a nationwide community-based organization. Importantly, for an operation to qualify as a “model aircraft” operation and be subject to Section 336 above, depends on whether the drone operation is for “hobby or recreational” purposes.

Accordingly, the FAA clarified that a person may operate a drone for “hobby or recreation” in accordance with Section 336 at educational institutions and community-sponsored events provided that the person is (1) not compensated, or (2) any compensation received is neither directly nor incidentally related to that person’s operation of the aircraft at such events.

In substance, the FAA interpreted “hobby or recreational” use to include operation of drones to conduct demonstrations at accredited educational institutions or at other community-sponsored events subject to the above requirements being met. This is important because now a model aircraft hobbyist or enthusiast lawfully may fly drones at such institutions or events to promote the use of drones and encourage student interest in aviation as a hobby or for recreational purposes.

Student Operation of Model Aircraft for Educational Purposes

Next, the FAA considered whether a student’s course work of learning how to operate and use a drone constitutes a hobby or recreational activity within the meaning of Section 336’s definition of model aircraft. The FAA found that “the use of [drones] by students at accredited educational institutions as a component of science, technology and aviation-related educational curricula or other coursework such as television and film production or the arts more closely reflects and embodies the purposes of “hobby or recreational” use of model aircraft and is consistent with the intent of Section 336.”

Therefore, the FAA concluded that student use of drones at such institutions as a component of their educational curricula, or other coursework, is “hobby or recreational use” within the meaning of the FMRA. Note that the student still must comply with all other elements required for lawful model aircraft operations pursuant to Section 336, that is, not receiving any form of compensation directly or incidentally to his or her operation of the model aircraft.

Faculty Use of Model Aircraft

Respecting faculty, the FAA found that because a faculty member engaging in the operation of a drone is being compensated for his or her teaching or research activity, they would not be engaging in a “hobby or recreational activity.” Accordingly, the faculty member may not rely on Section 336’s concept of “hobby or recreational use” to either operate a drone or direct student drone operations in connection with such research.

Nevertheless, the FAA found that a faculty member teaching a course that uses drones as a component of that course may provide limited assistance (e.g., the faculty member steps-in to regain control in the event the student begins to lose control, to terminate the flight, etc.) to students operating drones as part of that course without changing the character of the student’s operation as a hobby or recreational activity or requiring FAA authorization for the faculty member to operate.

This “de minimis” limited instructor participation would apply to courses at educational institutions where the operation of the drone is secondary to the design and construction of the aircraft, such that the primary purpose of the course is not operating a drone. The FAA illustrates this limited circumstance with two examples.

The first example involves an instructor teaching an engineering course in which construction and operation of drones are one part of the curriculum. In this scenario, the instructor would be able to conduct limited drone operations as described above. Students would fly drones to test the validity of design or construction methods to show mastery of the principles of the course. But the faculty member’s drone operation would be secondary to the purpose of instructing engineering courses.


Conversely, this limited circumstance would not apply to a course related to drone flight instruction. In this scenario, the student’s primary purpose for taking the course is to learn to fly a drone. Flight would be expected to be demonstrated on a regular basis. Indeed, the faculty member’s drone operation is closely tied to his or her purpose of instructing how to fly a drone. Similar to student operations, these faculty operations must also abide by the provisions of Section 336.

Students and faculty members who wish to operate drones outside of these parameters above must seek FAA authorization. Currently, there are three ways to lawfully conduct drone operations in the U.S.: (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 a Section 333 of the FMRA grant of exemption provided the operator obtains a COA from the FAA.

Schools and students will no longer need a Section 333 exemption or any other authorization to fly provided they follow the rules for model aircraft and operate within the parameters described above. Further, faculty will be able to use drones in connection with helping their students with certain types of courses as set forth above. Schools and universities are incubators for tomorrow’s great ideas. The FAA’s interpretation is going to be a significant shot in the arm for innovation.

This past month, a FAA committee tasked with providing recommendations on a regulatory framework for the classification and operation of micro unmanned aircraft systems (“UAS” or “drones”), submitted its official report to the FAA.

The Micro UAS Aviation Rulemaking Committee (“ARC”) was directed to develop “recommendations for a performance-based standard that would allow for micro UAS to be operated over people who are not directly participating in the operation of the UAS.” On April 6, the FAA accepted those recommendations. Moreover, the FAA has already started the process of developing a notice of proposed rulemaking based on the ARC’s recommendations.

Drone cartoon over people

While trying to balance the twin goals of ensuring safety and encouraging innovation, the ARC identified four small UAS categories defined primarily by level of risk of injury posed by operations over people. For each category, the ARC recommended a risk threshold that is based on either weight or an impact energy equivalent.

Category 1 includes small drones weighing .55 lbs (250 grams) or less, including accessories and payload (e.g., cameras). The ARC considers the level of risk of injury posed by this category of UAS to be very low. Consequently, the ARC recommended that no performance standards and no operational restrictions beyond those imposed by the proposed part 107 of Chapter 14 of the Code of Federal Regulations (“part 107”) are necessary.

Based on the risk that a UAS could strike a person on the ground causing serious injury, the standards and restrictions in categories 2, 3, and 4 are “scaled up” to mitigate the increased risks.

Category 2 includes drones that weigh more than .55 lbs (250 grams) but still present a 1% or less chance of serious injury to a person in the event of impact. Depending on its design characteristics and operating instructions, a 4 to 5 pound drone would qualify. On the other hand, category 3 and 4 drones would have a 30% or lower chance of causing a serious injury upon impact with a person.

The ARC recommended that category 2 drones must, among other things, be operated at a minimum distance of 20 feet above people’s heads, or 10 feet laterally away from people. Even with these minimum distance requirements, the small UAS must always maintain a safe distance from people so as not to create an “undue hazard” to those people.

striking a person

laying on ground






Under the ARC’s recommendations, category 3 operational restrictions “do not allow flight over crowds or dense gatherings of people.” But category 4 differs because it allows sustained flight over crowds or dense gatherings of people beyond what is permitted in category 3. Since an increased number of people on the ground may be subjected to overhead flight of longer duration, category 4 prescribes additional standards and restrictions for drone operations over people that present the same level of risk of serious injury as category 3 (i.e. 30% or less).

Accordingly, the ARC recommends that category 4 drones (1) require the drone operator to have a risk mitigation plan in place for conducting sustained operations over people and (2) take into account materials and components of the drones to determine if the materials pose additional potential risk of collateral serious injury to people on the ground, in addition to injury caused by initial impact.

In each case, extensive testing would be required to determine that the drone meets the weight or impact energy threshold for its category. Additionally, to demonstrate that a small UAS qualifies for categories 2, 3, or 4 operations over people, the manufacturer of the drone must: (1) declare that the small drone meets industry consensus standards applicable to the category; (2) submit that declaration to the FAA in a form and manner acceptable to the FAA; (3) label the product or product retail packaging in accordance with industry consensus standards;[1] and (4) provide an operating manual to the operator that includes operator instructions for flight over people. Lastly, drone operators would be responsible for knowing what category of operations his or her drone qualifies for, and what operational limitations he or she must follow.

The ARC’s recommendations illustrate an effort by drone manufacturers to put drones on the path to everyday commercial and recreational use in populated areas by lessening the operational restrictions and requirements set forth by the FAA in the proposed rules in part 107 announced in February, 2015. But hurdles remain, including creating tests to determine which drones meet the various thresholds of the performance standards. As noted above, the FAA will use the information in the ARC’s report to develop a flexible, performance-based proposed rule and the public will have the opportunity to comment.

flight in beach

It is difficult to predict how long it will take for the FAA to work out the details or how long before companies manufacture drones which meet the standards enumerated above. But what is clear is that this is progress and the application of the ARC’s recommendations would allow businesses to use drones for many commercial applications. Indeed, the FAA’s ban on flying drones over crowds or in towns and cities could soon be modified further.

[1] For category 1 operations over people, the ARC recommended that the manufacturer of the drone be required to: (1) label the retail product packaging of the small UAS with either the actual weight of the small unmanned aircraft or a general statement that the small UAS weighs .55 lbs (250 grams) or less; or (2) declare that the small unmanned aircraft weighs .55 lbs (250 grams) or less and submit that declaration to the FAA in a form and manner acceptable to the FAA.

As the FAA prepares to issue final commercial drone regulations, and the FAA Reauthorization Act of 2016 (the “FRA”) heads to the House of Representatives for deliberation, this past week the FAA quietly issued a historic decision, approving commercial drone flights at night.

In a previous article, we analyzed Cape Productions, Inc.’s (“Cape”) petition to amend its Section 333 exemption to relax the requirement of the 500 foot operating distance from people.[1] After reviewing Cape’s safety record and its plans to mitigate risk, the FAA granted the amendment. We noted that the Cape case raised an interesting question about what other restrictions the FAA may be willing to relax for Section 333 exemption holders that will go the extra mile for safety. That seems to be the case here.

Previously, drones could not be operated commercially at night as the FAA has said that “any operations of drones after sunset would have to wait until further tests, analyses, and formal rules were completed.” See, e.g., Astraeus Aerial FAA Grant of Exemption, p. 28 (“UAS operations may not be conducted during night, as defined in 14 CFR § 1.1”); 14 C.F.R. § 1.1 (“Night means the time between the end of evening civil twilight and the beginning of morning civil twilight, as published in the American Air Almanac, converted to local time.”); But see FAA Order 8900.1 16-5-3-7-I-2-a, Operational Requirements For UASs (“Night operations may be considered if the operator/applicant provides a safety case and sufficient mitigation to avoid collision hazards at night.”).

Of the more than 4,000 Section 333 exemptions granted by the FAA to date, all were for daytime operations. But on April 18, 2016, the FAA approved Industrial SkyWorks’s (“SkyWorks”) petition to conduct night operations for the purpose of building inspections using the Aeryon SkyRanger drone. Taking nearly a year and a half to assess and process SkyWork’s request, the FAA’s decision sets an important precedent for others to follow.

Nightime Drones

Attached to that grant of exemption, however, are several strict conditions and limitations for conducting operations during night:

  • All flight operations must occur within 100 feet of the boundaries of a permanent structure and no higher than 400 feet above ground level.
  • The drone must be equipped with anti-collision lighting visible for at least 5,000 feet.
  • The pilot in command (“PIC”) must hold an airline transport, commercial, or private pilot certificate, and a current FAA airman medical certificate. (Note: Holders of a recreational or sport pilot certificate are not permitted to operate aircraft at night).
  • The drone must be equipped to inform the PIC of accurate position, altitude, attitude, speed, and heading of the aircraft throughout the flight operation.
  • The petitioner must conduct a daytime site assessment to note hazards and obstacles that may be difficult to see in low light conditions.
  • The PIC and visual observer must be in place 30 minutes prior to night operations to ensure dark adaptation.
  • The take-off and landing areas must be lighted to allow the PIC to see the distance between the aircraft and ground during takeoff and landing and enabling the observer to monitor that non-participants remain at a safe distance.

These requirements are much stricter than those for flying drones during the day time. The FAA believes such strict requirements are needed to help ensure the safety of aircraft operations conducted at night. The FAA notes “operations at night pose a higher safety risk because the reduced visibility makes it more difficult for the remote pilot to visually locate the [drone] and determine the relative separation with other aircraft [to] avoid a collision.”

As noted above, the SkyWorks decision comes on the heels of the passage of the FRA in the Senate. Relevant for our purposes is Section 2126 of the FRA. That section would “reauthorize and expand exemption authority…for…the FAA to approve nighttime and beyond-line-of-sight operations” for commercial purposes using a risk-based approach. Congress hopes that this provision will help foster innovation in the drone industry.

Even with the Section 333 exemption, there are stringent conditions imposed by the FAA that limit what exemption holders can do. But the Cape and SkyWorks decisions illustrate that there is some flexibility with that process as more and more the case with the FAA seems to be “you never know unless you ask.” The key in both cases is the development of a detailed plan to address whatever safety concerns the FAA may raise.

[1] Cape is an aerial cinematographer that uses drones to film skiers at participating ski resorts.

The FAA recently granted a string of Section 333 exemptions signifying the agency’s cautious but continuing effort to loosen regulations on the commercial drone industry. In short, the FAA now permits the operation of any small unmanned aircraft system (“sUAS”) that it has previously approved.

For example, on March 17, 2016, the FAA granted a Section 333 exemption to Brim Aviation (“Brim”) for, among other things, aerial data collection and close-set motion picture and television filming, and production. In that exemption, the FAA referred to a “List of Approved UAS under Section 333” at regulatory docket FAA-2007-3330 at

Brim proposed to use a sUAS on that list. But the FAA did not limit the exemption to only that particular sUAS. Rather, the FAA went a step further, authorizing Brim under the conditions and limitations section “to use any aircraft identified on the List…when weighing less than 55 pounds including payload” while its exemption is valid.


Whether drone businesses holding previously granted exemptions will be able to take advantage of the expanded list of approved aircraft without applying for an amendment to their existing Section 333 exemption is unclear. Drone businesses operating under Section 333 exemptions granted previously, however, will likely be barred from conducting operations based on the “List.” So, for drone businesses that received exemptions prior to these changes or those with currently pending Section 333 petitions, we recommend submitting a request to the FAA for amendment to reflect the revised conditions and limitations.

Previously, commercial drone operators applying for Section 333 exemptions had to describe in detail the specifics of the sUAS it intended to operate. Further, the FAA limited the exemptions to only the specific sUAS stated in the petition for exemption. A commercial drone operator had to file an amendment to their Section 333 exemption if it wanted to alter its exemption by adding a different type of drone. Under the FAA’s new posture, a drone business will only be required to file an amendment if it wants to operate a drone that has not been previously been approved.


This noteworthy change expands the options available to commercial drone operators when assessing, based on their intended uses, which drone operates best. Other changes to Section 333 exemptions recently granted relate to drone operations over and near people; greater specificity as to participating and nonparticipating persons and the operating conditions applicable to such persons; addressing drone operations near but not over persons directly participating in the intended purpose of the drone operation; and, addressing the loss of GPS signal and the loss of the command or control link with the drone.

Whether these changes reflect a broader policy shift that will apply to all future exemptions is not clear. But these changes do represent a promising incremental development that may create new opportunities for drone businesses to expand their efforts to explore and use drones throughout their operations.

Jonathan D. Ash writes:

After spending a weekend surrounded by FAA Section 333 exemption holders at the recent New York City Drone Film Festival, a common issue permeating the event was how do exemption holders work within their restrictions to make these films even better than they already are? Even with the exemption, there are stringent conditions imposed by the FAA that limit what exemption holders can do.

For example, the “Best in Show” winner, Afterglow: Lightsuit Segment, was brilliant (check it out here), but it could not have been filmed in the United States because the entire premise – skiing down a mountain in magnificent lightsuits – required it to be filmed at night, an explicit prohibition by the FAA. But what if there was some flexibility with the Section 333 exemption?

Drone and Snowboard

Recently, the FAA granted a petition to amend a Section 333 exemption that appears to indicate just that. Cape Productions, Inc. (“Cape”), an aerial cinematographer that uses a drone to film skiers at participating ski resorts, petitioned to amend its Section 333 exemption to relax the requirement of the 500 foot operating distance from people. In granting the amendment, it is not surprising that the FAA’s primary concern was safety. With that issue in the forefront, they reviewed Cape’s safety record and considered Cape’s plans to mitigate risk. Those plans included:

  • Limiting the drone to a maximum speed limit of 50 knots (57.5 MPH).
  • Requiring a consent via waiver for all individuals entering the resort where filming will take place.
  • When consent is not obtained, using physical barriers to prevent unauthorized people from entering the filming area.
  • Obtaining additional consent forms for those individuals who will be filmed.
  • Mapping out key areas such as take-off and landing points, areas of operation, and a fail-safe point in the event that operation must be terminated immediately.
  • Implementing operational safety measures such as pre-programed flight plans and signage.
  • Creating a safety plan that includes an identified control point from which the pilot in command will conduct operations, a process to cease operations if any unauthorized people or items enter the area of operation, and the use of visual arm and auditory signals to communicate.

The FAA accepted those plans with the exception of the general consent waiver for those entering the resort. Instead, the FAA required a specific briefing about the risk to all individuals who will be within 500 feet of the operating drone, as well as their acknowledgment and consent of those risks. Furthermore, the FAA required Cape to develop a standard operations manual to document and address operational safety practices, and to submit a written plan of activities to an FAA Flight Standards District Office to facilitate oversight prior to operating.

The Cape case raises an interesting question about what other restrictions the FAA may be willing to relax for Section 333 exemption holders that will go the extra mile for safety. When applying for their own exemption, drone businesses can cite to Cape’s Section 333 exemption as precedent. The key is developing a plan to address whatever concerns the FAA may raise. Have you ever heard the expression “ask and you shall receive?” Well maybe that’s the case with the FAA. The problem is not enough people are asking.

Exemption holders may not inquire about relaxing restrictions for several reasons, including: (1) exemption holders do not know that it is even possible to relax the restrictions or (2) they do not want to go through the process, which could be long and expensive, with no guarantee of success. Maybe it would be possible to fly at night in certain circumstances. Maybe it would be possible to carry a payload that makes the drone heavier than 55 lbs. If successful, the competitive benefits that a company can reap may make the endeavor worthwhile.

Those who are willing to try should reach out to experienced counsel to discuss your options.

Jonathan D. Ash is an associate in the firm’s Labor & Employment Department, resident in the Princeton office.


The 2nd Annual New York City Drone Film Festival will be held from March 4th – March 6th 2016. The three-day event will feature a dynamic slate of interactive panel discussions, guest speakers, screenings of nominated films, and the annual awards ceremony. The festival will return to the Directors Guild of America Theater for the second year in a row.

“Just as drones have become more technically advanced and integrated into society, the NYC Drone Film Festival has experienced a year of tremendous growth,” said Festival Founder and Director Randy Scott Slavin. “We’ve expanded from a one-night event to a three-day happening. We’re holding interactive panels and seminars highlighting the influence of drones around the world. And we’ve expanded our award categories from nine to eleven. The 2016 festival is going to be bigger and bolder in every way.”

The #NYCDFF is the world’s first event exclusively dedicated to celebrating the art of drone cinematography. In its inaugural year it received over 150 submissions from 19 countries. The event sold out in five days, attracted 31 sponsors across 10 different industries, including headline sponsor NBC News, and received over 270 million media impressions. The festival offers an international platform for filmmakers from every corner of the globe to exhibit their work in front of industry professionals and the drone cinema fan community.

Drone Film


March 5th – NYCDFF SEMINARS & FESTIVAL – All events at Directors Guild of America Theater

I love drone

March 6th – DAY OF DRONES at the Liberty Science Center (222 Jersey City Blvd, Jersey City, 07305)

  • 9am -5:30pm – NYCDFF program (Playing throughout the day)
  • 12pm – 5pm – Drone Battling Expo
  • 12pm – 5pm – Invitational Drone Racing Expo with FPV Addiction