FAA Regulations Could Help Drones Take Wing

Friday, May 1, 2015 - 10:28

Those who fly unmanned aerial systems (“UAS,” more commonly called “drones”) might soon have regulations that clarify how, when and why they can operate. The Federal Aviation Administration (the “FAA”) recently published a notice of proposed rule making (an “NPRM”) that is the first step enabling and regulating broader UAS operations.

The Problem

Hobbyists have been able for decades to legally operate radio-controlled model airplanes and helicopters with certain limitations. Those limitations included a maximum altitude of 400 feet above the ground, a 5-mile exclusion zone around any airport, and – most importantly – a restriction that the aircraft be operated for “hobby or recreational purposes.”

Then, in an excellent example of technology evolving out from under the regulations meant to address it, a new generation of UAS has become widely available and has developed robust ranks of enthusiasts. The new generation consists mostly of quad-rotor helicopters that have on-board stabilization systems that make them easy to fly, even by inexperienced operators. This, together with new camera technology that places lightweight, inexpensive, high-definition video cameras in the hands of enthusiasts, has made it possible for an average hobbyist to shoot impressive video footage that would have required a Hollywood budget a mere five years ago. It is difficult to scroll too far down one’s news feed without coming across stunning YouTube videos shot from aboard UAS. The technology offers broad commercial opportunities, from video and film production to pipeline patrol to inspection of broadcast antennae. UAS operations make up an industry that is ready to expand rapidly.

But remember the part about “hobby or recreational purposes”? Concerned about the increasing number of UAS in the national airspace system and the likelihood that many of those UAS were being operated by amateur operators for commercial purposes, the FAA took a hard line. It viewed “hobby or recreational purposes” narrowly and construed “commercial” operations broadly. Under the current regulatory system, the FAA requires that any commercial operation function in much the same way that charter or similar services operate – with certified aircraft and pilots who are qualified to fly manned aircraft and an authorization process that requires individual applications and exemptions. The FAA has granted only 128 such petitions so far.

UAS operators were in a difficult position. What is a commercial operation? Shooting aerial footage for a new Taylor Swift video? Almost certainly. Shooting footage of the owner’s backyard barbecue? Probably not. But what if Taylor Swift’s producer wanted to buy the footage of your backyard flight after the fact? Who knows?

The New Regs

On February 23, the FAA unveiled its NPRM. The NPRM provides a framework for commercial operation of UAS in the United States that allows commercial operators and hobbyists alike to operate without a special exemption from the FAA and even do so for commercial purposes. If the final regulation tracks the NPRM, operators will be able to fly certain UAS in certain ways without having to apply to the FAA for a specific exemption.

UAS operators will be able to operate UAS weighing less than 55 pounds that can fly no faster than 100 mph in level flight, and will be able to do so at altitudes not to exceed 500 feet above the ground. No operation would be allowed above any person other than a person participating in the UAS operation (the UAS operator, her crew and – presumably in the example above – Taylor Swift).

All operations would have to be within view of the operator, so remote operation over the horizon or around corners would be prohibited. The proposed regulation allows “visual observers” to participate, but only to help the actual operator. The primary UAS operator must keep the UAS within sight at all times, and each UAS operator can operate only one UAS at a time.

UAS operators would be able to control UAS from aboard boats, but not while in moving cars or other aircraft, so the radius of operations on land will likely be limited to where the operator can walk during any given flight.

The proposed regulation would permit small UAS to drop items as long as the safety of persons and property on the ground is assured. Any dropped items – or anything else that a small UAS carries, for that matter – would have to be inside the UAS and would not be able to be carried as an external load like the UAS did in the much-vaunted Amazon Prime Air video posted on YouTube December 1, 2013.

The regulation would confine small UAS operations to daytime hours between sunrise and sunset and when visibility is such that the operator can see objects at least three miles away. Operators would have to stay 500 to 2,000 feet away from clouds.

The regulation would create a new airman certificate like the existing private pilot certificate or commercial pilot certificate. The new certificate would be the “unmanned aerial system operator certificate.” And, just as private and commercial pilot certificates have ratings for single-engine airplanes, multi-engine airplanes, helicopters and other kinds of aircraft, the regulation would create a “small unmanned aerial system” rating for the UAS operator certificate.

Some of the requirements are similar to requirements that apply to airplane or helicopter operations. Operators must perform certain pre-flight planning and investigation to determine that the weather and other circumstances are appropriate for the flight. They must also assure that the UAS has enough power to perform the planned flight with enough left over to allow for unexpected events.

Like pilots, UAS operators would have to take and pass a knowledge test that covers much of the same material that pilots must know. Unlike pilots, UAS operators would not have to demonstrate to the FAA that they can fly their UAS in any particular maneuvers or pass a medical examination. Also unlike pilots, UAS operators would need to be vetted by the Transportation Security Administration before receiving their certificates.

The regulation would require UAS operators to see and avoid any other aerial traffic, like airplanes, helicopters and other UAS. UAS would have to give way to all other manned traffic.

Operators could operate their UAS in controlled airspace associated with certain airports, but only with the permission of the air traffic controller(s) responsible for that airspace.

Parallels with Prior Regulation

The regulations for UAS are analogous in many ways to other regulations by the FAA in recent history. For example, in 2004, the FAA designated a new category of “light sport” aircraft and prescribed regulations for their operation. Light sport aircraft are generally smaller, have lower seating capacity (limited to two persons), fly more slowly (limited to 138 mph), and otherwise are less capable than other aircraft. The FAA provided for more abbreviated training for pilots seeking “sport pilot” certification to fly them, including requiring only 20 hours of training (versus 40 hours for regular airplanes) and requiring only that a sport pilot hold a valid driver’s license instead of a full FAA medical certificate.

The FAA is also considering reducing the medical certification requirements for pilots who fly only in good weather on noncommercial flights in aircraft weighing less than 6,000 pounds that have no more than six seats (usually referred to as the “third-class medical proposal”). If that regulation goes through, certain private pilots will have the same medical requirements as sport pilots.

The UAS regulations are similar to the sport pilot and third-class medical proposal in that they carve out a limited sphere of operations and allow operators to conduct flights within that sphere under more liberalized regulations and without requiring the rigorous certification required of operators of heavier, faster or more capable UAS.

That said, the sport-pilot rule and the third-class medical proposal are the results of decades of operational history and review by the FAA of accident reports from those periods. UAS, in their present forms, are so new that the FAA has used its best guess about what constitutes an optimal level of regulation and what the regulation should cover. The FAA could certainly react to better- or worse-than-expected levels of accidents and incidents for UAS operations. In fact, the proposed small-UAS regulation requires that operators report accidents and incidents involving their UAS to the FAA, and the threshold for what constitutes a reportable event is much lower for UAS operations than for other kinds of aircraft.

In the Meantime

The comment period for the small-UAS NPRM closed on April 24. The FAA now has a broad range of actions available to it. It could stop the regulation altogether, it could ask for more input, it could propose alternative language, or it could issue a final regulation. There is no particular time by which the FAA has indicated that it will act.

In the meantime, the existing process of granting specific exemptions will continue. And, even after the new regulations come into effect, operators who wish to fly UAS that weigh 55 pounds or more, go faster than 100 mph in level flight, or otherwise don’t fit into the new regulation will still be able to apply to the FAA for specific waivers.

The number of UAS – both commercial and noncommercial – will continue to rise regardless of whether the new regulations come into effect, and that will result in issues beyond FAA regulation. UAS have implications for privacy, property rights and other matters that regulators, legislators, business people and citizens are only now beginning to consider.

The ABC sitcom Modern Family recently featured a story line in which a UAS captured footage of Phil (Ty Burrell) in compromising positions in his backyard, leading to Phil’s, Luke’s (Nolan Gould), and Manny’s (Rico Rodriguez) efforts to take down the UAS using everything from a football to a power washer. Art and life are inseparable in this regard as stories involving neighbors shooting at UAS become more commonplace.

Law enforcement authorities are already rolling out UAS programs. 106 of the FAA’s pending authorization applications for UAS operations mention police in the application. And many of these law enforcement organizations could operate under the proposed FAA rules. This has already caused concern by some citizens about increased police surveillance.

In any case, the UAS’s time has come. It remains only to watch how the regulatory environment develops.

Stephen L. Tupper is a member of Dykema in its Bloomfield Hills, Michigan office. In addition to running the firm’s aviation transactions practice, he is a commercial pilot, airshow performer, and air boss and is the chair of the Aviation Law Section of the State Bar of Michigan.

Please email the author at stupper@dykema.com with questions about this article.