Now that 2017 is wrapped up, a look back at what happened in drone world in 2017 and a look to what might happen in 2018 is warranted. While there were several exciting developments, this article will focus on a handful of those deemed among the most significant.

Drone usage, both recreational and commercial, continues to grow quickly. As drone usage grows, the need for regulations to permit the safe operation becomes more and more critical.

We have now competed the first full calendar year under Part 107, which became effective in August of 2016. Since August of 2016, the FAA has granted 1,448 waivers to Part 107.

This past year witnessed the first waiver by the FAA for operations beyond visual line of sight (“BVLOS”). To date, the FAA has granted four waivers for BVLOS.

The FAA has granted a total of eight waivers for operations over people, but three of those eight were granted to the same applicant, CNN.

Also in 2017, the FAA announced the UAS Integration Pilot Program (“IPP”). Per the FAA, “The UAS Integration Pilot Program is an opportunity for state, local, and tribal governments to partner with private sector entities, such as UAS operators or manufacturers, to accelerate safe UAS integration.”  Moreover, in its announcement, the FAA stated: “The Program is expected to provide immediate opportunities for new and expanded commercial UAS operations, foster a meaningful dialogue on the balance between local and national interests related to UAS integration, and provide actionable information to the Department of Transportation (DOT) on expanded and universal integration of UAS into the National Airspace System (NAS).”

The FAA has established four objectives for the IPP:

  • Accelerate the safe integration of UAS into the NAS by testing and validating new concepts of beyond visual line of sight operations in a controlled environment, focusing on detect and avoid technologies, command and control links, navigation, weather and human factors;
  • Address ongoing concerns regarding the potential security and safety risks associated with UAS operating in close proximity to human beings and critical infrastructure by ensuring that operators communicate more effectively with Federal, State, local, and tribal law enforcement to enable law enforcement to determine if a UAS operation poses such a risk;
  • Promote innovation in and development of the United States unmanned aviation industry, especially in sectors such as agriculture, emergency management, inspection, services, and transportation safety, in which there are significant public benefits to be gained from the deployment of UAS; and
  • Identify the most effective models of balancing local and national interests in UAS integration.

In 2018, we will see a continued push from industry to enact regulations permitting BVLOS and operations over people, as well as a push from the industry to ensure safe operation of drones, including enhanced training and certification requirements for commercial operations.

The industry continues to move forward, albeit not as quickly as some would like on the regulatory side. That being said, it is still an exciting time to be involved in the world of drones, as the technology continues to evolve and the public sector continues to become more aware of the capabilities of this disruptive technology.

As 2018 unfolds, we will continue to monitor the key legal developments affecting drones in the United States.

While drones have been used to capture breathtaking and heartbreaking images of Hurricane Harvey and its aftermath,  the FAA has issued a warning to drone operators.

The FAA has issued reminders that unless drone operators have specific authorization from the FAA, they are not permitted to operate where Temporary Flight Restrictions (“TFR”) are in place.  The primary reason is that operating an unauthorized drone in these areas could interfere with local, state, and federal rescue missions.

The FAA notes that if a drone operator interferes with emergency response operations, they could be subject to significant fines. In addition, even in areas where TFRs are not in effect, operating a drone without authorization in or near a disaster area  may violate federal, state, or local law.

Even in the absence of a natural disaster, operating a drone over people is prohibited by Part 107, unless a specific exemption has been granted by the FAA. Moreover, reckless operation of a drone is also prohibited.

While drones have incredible abilities to assist first responders and others, whether through providing real-time images and data that would be difficult or impossible to obtain through other means, unauthorized drone operations also have the potential to interfere with the efforts of first responders.

As tempting as it may be to fly a drone in or near a disaster area to capture footage, for the safety of all, please refrain from doing so unless you have specific authorization from the FAA.

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.

 

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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.

Patience is bitter, but its fruit is sweet.” – Aristotle

Yeah, well, you know, that’s just, like, your opinion, man.” – The Dude

It has been a long time coming.

Indeed, it was over 4 years ago that Congress approved the FAA Modernization and Reform Act of 2012 (FMRA) requiring the FAA to integrate drones into the National Airspace System. To that end, the FMRA directed the FAA to issue rules to regulate commercial drones and have the rules finalized by September 30, 2015.

In accordance with this congressional mandate, in February 2015, the FAA published a Small UAS Notice of Proposed Rulemaking (NPRM)—or Part 107. But the September 30, 2015, deadline came and went without any word from the FAA.

Finally, on June 21, 2016, the FAA released its Part 107 rules regulating the commercial operation of drones weighing less than 55 pounds. These rules do not apply to hobby or recreational drones.

The Part 107 rules go into effect today, August 29, 2016.

 new regulations

Before the issuance of these new rules, a person seeking to fly a drone for commercial purposes was required to petition the FAA for authorization.

In particular, there were 3 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.

In the upcoming months, the FAA plans to continue to enhance flexibility for those operating drones commercially by issuing more rules and regulations. In fact, by this December it is likely that the FAA will propose a rule for safely and securely flying over persons not associated with a drone operation. See 14 C.F.R. § 107.39. Also, a few months after that, many expect that the FAA will propose rules enhancing flexibility for those operating drones commercially under Part 107—such as operating drones at night. See 14 C.F.R. § 107.29.

But until the FAA issues additional rules and regulations, remote pilots must traverse the usual legal channels—if not allowed under Part 107 or the Part 107 certificate of waiver. This includes 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 these upcoming regulations will further streamline the legal and administrative processes as drone technology continues to evolve.

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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.

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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.

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.

Drone

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.

Compliance

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.