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.



On May 24, 2016, we published an article discussing the National Telecommunications and Information Administration (“NTIA”) issuance of Best Practices for privacy and other issues surrounding drone use. Attached as an Appendix to those Best Practices is a list of guidelines for neighborly drone use intended to be a quick and easy reference guide for recreational drone operators. It goes without saying that for recreational users it is worth reviewing, and is reproduced in its entirety below:

Drones are useful. New, fairly cheap drones are easy to use. But just because they are cheap and simple to fly doesn’t mean the pictures and video they take can’t harm other people. The FAA and partner organizations have put safety guidance online at http://knowbeforeyoufly.org. But even safe flight might not respect other people’s privacy. These are voluntary guidelines. No one is forcing you to obey them. Privacy is hard to define, but it is important. There is a balance between your rights as a drone user and other people’s rights to privacy. That balance isn’t easy to find. You should follow the detailed “UAS Privacy Best Practices”, on which these guidelines are based, especially if you fly drones often, or use them commercially. The overarching principle should be peaceful issue resolution.
  1. If you can, tell other people you’ll be taking pictures or video of them before you do.
  2. If you think someone has a reasonable expectation of privacy, don’t violate that privacy by taking pictures, video, or otherwise gathering sensitive data, unless you’ve got a very good reason.
  3. Don’t fly over other people’s private property without permission if you can easily avoid doing so.
  4. Don’t gather personal data for no reason, and don’t keep it for longer than you think you have to.
  5. If you keep sensitive data about other people, secure it against loss or theft.
  6. If someone asks you to delete personal data about him or her that you’ve gathered, do so, unless you’ve got a good reason not to.
  7. If anyone raises privacy, security, or safety concerns with you, try and listen to what they have to say, as long as they’re polite and reasonable about it.
  8. Don’t harass people with your drone.

Drones are a uniquely transformative technology in the commercial and private sectors. Indeed, greater operational flexibility, lower capital requirements, and lower operating costs allow drones to enrich people’s daily lives by providing innovative services, safer infrastructure, recreational uses, and greater economic activity. The assimilation of this technology into everyday life, however, raises concerns for privacy, civil rights, and civil liberties.

In recent years drone popularity has soared. According to the FAA there are about 5,600 drones registered for commercial purposes and roughly 450,000 hobbyists who have registered at least one drone. This popularity has put pressure on the drone industry and privacy advocates to reach agreement on guidelines governing drone use.

Seeking to promote the responsible use of drone technology in a way that does not diminish rights and freedoms, President Obama, on February 15, 2015, issued the Presidential Memorandum, “Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems.”

That memo directed the National Telecommunications and Information Administration (“NTIA”) to establish a multi-stakeholder engagement process—including stakeholders from the private sector—to develop and communicate Best Practices for privacy, accountability, and transparency issues regarding commercial and private drone use in the National Airspace System. And so, on May 18, 2016, the stakeholders came to consensus and issued a document on Best Practices for privacy and other issues surrounding drone use.[1]

Best Practices

The purpose of that document was to outline and describe voluntary Best Practices that drone operators could take to advance drone privacy, transparency, and accountability for the private and commercial use of drones. These Best Practices may be implemented by drone operators in a variety of ways depending on their circumstances and technology uses, and evolving privacy expectations. Yet these Best Practices do not—and are not meant to—create a legal standard of care by which the activities of any particular drone operator should be judged. Nor are the Best Practices intended to serve as a template for future statutory or regulatory obligations—doing so would make these standards mandatory (not voluntary) and could therefore raise First Amendment concerns.

At its core, the Best Practices call for drone users to notify other individuals of drone use and data collecting activities; practice caution when it comes to collecting and storing the data of specific individuals; restrict use and sharing of that data; implement measures to ensure security of covered data[2]; and comply with laws on the use of drones.

These Best Practices focus on data collected via drones, which includes both commercial and non-commercial drones; they do not apply to news gatherers and news reporting organizations or to safety and rescue missions and other emergency response efforts.

In any event, here are the Best Practices in their entirety:

  1. Inform Others of Your Use of Drones
  • (a) Where practicable, drone operators should make a reasonable effort—what qualifies as a practicable and reasonable effort to provide prior notice will depend on operators’ circumstances and the context of the drone operation—to provide prior notice to individuals of the general timeframe and area that they may anticipate a drone intentionally collecting covered data.
  • (b) When a drone operator anticipates that drone use may result in collection of covered data, the operator should provide a privacy policy for such data appropriate to the size and complexity of the operator, or incorporate such a policy into an existing privacy policy. The privacy policy should be in place no later than the time of collection and made publicly available. The policy should include, as practicable:
    • (1) the purposes for which the drone will collect covered data;
    • (2) the kinds of covered data the drone will collect;
    • (3) information regarding any data retention and de-identification practices;
    • (4) examples of the types of any entities with whom covered data will be shared;
    • (5) information on how to submit privacy and security complaints or concerns; and
    • (6) information describing practices in responding to law enforcement requests.
  1. Show Care When Operating Drones or Collecting and Storing Covered Data
  • (a) In the absence of a compelling need to do otherwise, or consent of the data subjects,[3] drone operators should avoid using a drone for the specific purpose of intentionally collecting covered data where the operator knows the data subject has a reasonable expectation of privacy.
  • (b) In the absence of a compelling need to do otherwise, or consent of the data subjects, drone operators should avoid using a drone for the specific purpose of persistent and continuous collection of covered data about individuals.
  • (c) Where it will not impede the purpose for which the drone is used or conflict with FAA guidelines, drone operators should make a reasonable effort to minimize drone operations over or within private property without consent of the property owner or without appropriate legal authority.
  • (d) Drone operators should make a reasonable effort to avoid knowingly retaining covered data longer than reasonably necessary to fulfill a purpose as outlined in § 1(b). With the consent of the data subject, or in exceptional circumstances (such as legal disputes or safety incidents), such data may be held for a longer period.
  • (e) Drone operators should establish a process, appropriate to the size and complexity of the operator, for receiving privacy or security concerns, including requests to delete, de-identify, or obfuscate the data subject’s covered data. Commercial operators should make this process easily accessible to the public, such as by placing points of contact on a company website.

  1. Limit the Use and Sharing of Covered Data
  • (a) Drone operators should not use covered data for the following purposes without consent: employment eligibility, promotion, or retention; credit eligibility; or health care treatment eligibility other than when expressly permitted by and subject to the requirements of a sector-specific regulatory framework.
  • (b) Drone operators should make a reasonable effort to avoid using or sharing covered data for any purpose that is not included in the privacy policy covering drone data.
  • (c) If publicly disclosing covered data is not necessary to fulfill the purpose for which the drone is used, drone operators should avoid knowingly publicly disclosing data collected via drone until the operator has undertaken a reasonable effort to obfuscate or de-identify covered data —unless the data subjects provide consent to the disclosure.
  • (d) Drone operators should make a reasonable effort to avoid using or sharing covered data for marketing purposes unless the data subject provides consent to the use or disclosure. There is no restriction on the use or sharing of aggregated covered data as an input (e.g., statistical information) for broader marketing campaigns.
  1. Secure Covered Data
  • (a) Drone operators should take measures to manage security risks of covered data by implementing a program that contains reasonable administrative, technical, and physical safeguards appropriate to the operator’s size and complexity, the nature and scope of its activities, and the sensitivity of the covered data.
  • (b) Examples of appropriate administrative, technical, and physical safeguards include those described in guidance from the Federal Trade Commission, the National Institute of Standards and Technology Cybersecurity Framework, and the International Organization for Standardization’s 27001 standard for information security management.
  • (c) For example, drone operators engaging in commercial activity should consider taking the following actions to secure covered data:
    • Having a written security policy with respect to the collection, use, storage, and dissemination of covered data appropriate to the size and complexity of the operator and the sensitivity of the data collected and retained.
    • Making a reasonable effort to regularly monitor systems for breach and data security risks.
    • Making a reasonable effort to provide security training to employees with access to covered data.
    • Making a reasonable effort to permit only authorized individuals to access covered data.
  1. Monitor and Comply with Evolving Federal, State, and Local Drone Laws
  • Drone operators should ensure compliance with evolving applicable laws and regulations and drone operators’ own privacy and security policies through appropriate internal processes.

These Best Practices are at present voluntary, however, they may end up as rules that commercial and non-commercial drone operators will have to follow in the future. Indeed, the U.S. Senate has asked the NTIA for a set of privacy guidelines that could serve as the basis for further federal legislation. See FAA Reauthorization Act of 2016, Sec. 2101. With all the news stories about irresponsible individuals using drones for illegal activities or violating people’s privacy, the existence of these Best Practices could be legal fodder for anyone who wants to prosecute you or your company for drone activities. Do yourself or your company a favor, take the initiative and start applying these guidelines today.


[1] The stakeholders that support this Best Practices document include: Amazon, AUVSI, Center for Democracy and Technology, Consumer Technology Association, CTIA, Future of Privacy Forum, New America’s Open Technology Institute, PrecisionHawk, X (Formerly Google [x]), Small UAV Coalition, Online Trust Association, News Media Coalition, Newspaper Association of America, National Association of Broadcasters, Radio Television Digital News Association, Digital Content Next, Software & Information Industry Association, NetChoice.

[2] “Covered data” means information collected by a drone that identifies a particular person. If data collected by a drone likely will not be linked to an individual’s name or other personally identifiable information, or if the data is altered so that a specific person is not recognizable, it is not covered data.

[3] The term “data subjects” refers to the individuals about whom covered data is collected.

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.

Federal versus State

It was the best of times, it was the worst of times…”

– Charles Dickens, A Tale of Two Cities

The quote above aptly describes the present legal landscape surrounding drones. Drone technology and popularity continues to skyrocket. But as numerous state and local laws regulating drones conflict with both the FAA’s contention that it controls the airspace and the FAA’s desire to establish a single national policy for drones, the legal and regulatory framework in the U.S. remains murky.

The FAA’s authority to regulate airspace, noise control, and safety is not questioned. Indeed, any attempt by states to regulate those aviation subfields will be deemed preempted. Despite this, many argue that “the FAA’s authority over safety still leaves a lot of room for states to act, and they have.” Furthermore, whether that authority extends to issues like privacy is questionable.

This is a world of action, and not for moping and droning in.”

– Charles Dickens

State and local governments have enacted hundreds of statutes and ordinances that seek to regulate drones. Those statutes and ordinances have created a patchwork of varying laws and regulations affecting drone operations.

 “I only ask to be free. The butterflies are free.”

– Charles Dickens, Bleak House

In an effort to clarify the responsibilities of federal, state, and local governments with respect to the regulation of drones, Senator John Thune recently introduced “Federal Aviation Administration Reauthorization Act of 2016” (the “FRA”) in the U.S. Senate.

Section 2142(a) of the FRA would establish a federal preemption for state and local laws relating to the design, manufacture, testing, licensing, registration, certification, operation, or maintenance of a drone, including airspace, altitude, flight paths, equipment or technology requirements, purpose of operations, and pilot, operator, and observer qualifications, training, and certification.

However, under Section 2142(b), state or local laws (including common law causes of action) relating to nuisance, voyeurism, harassment, reckless endangerment, wrongful death, personal injury, property damage, or other illegal acts arising from the use of drones would not be preempted if they are not specifically related to the use of a drone.

Express preemption occurs when Congress has explicitly stated that state law will be preempted by the enactment of federal law or regulation. The FRA is a bold and important proposal because only two other instances of express preemption exist regarding aviation: (1) Congress has expressly asserted “exclusive sovereignty of airspace of the United States,” and has placed “exclusive authority for regulating the airspace above the United States with the [FAA]” and (2) Under the Airline Deregulation Act of 1978, Congress prohibited states from enacting laws “related to a price, route, or service of an air carrier that may provide air transportation.”

Charles Dickens 1

“‘Do you spell it with a ‘V’ or a ‘W,’ inquired the judge? That depends upon the taste and fancy of the speller, my Lord.”

– Charles Dickens, The Pickwick Papers

The FRA is Congress’ attempt to establish a single national policy for drones by explicitly granting the FAA supremacy over all laws seeking to regulate drone operations. But many argue that it “would also block local governments from adopting measures prohibiting encroachment on private property.”

The patchwork of laws whereby federal, state, and local governments all seek to regulate drone operations creates a Byzantine scheme that only inhibits the growth of the drone industry. It is unnecessary for state or local governments to enact drone specific legislation, as existing state or local laws already cover the areas delineated in Section 2142(b) of the FRA.

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 www.regulations.gov.

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