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A New Frontier: Commercial Use of Drones – Proposed FAA Regulations – and Rules Applicable to Recreational Use

| May 28, 2015 | IP and Technology

A few months ago the Federal Aviation Administration (“FAA”) released long awaited proposed regulations governing the commercial operation of small unmanned aircraft systems (“drones”), including the registration and use of small drones and operator certification. The proposed regulations do not affect recreational use of small drones, which continues to be loosely regulated.

When releasing the proposed regulations, the FAA stated that it seeks an incremental approach in regulating commercial use of drones to allow development of the industry while maintaining protection of persons and property and control of the National Airspace System. The FAA has previously accommodated non-recreational use of small drones through various mechanisms, such as special airworthiness certificates, exemptions, and certificates of waiver or authorization. The current proposed regulations serve as the next phase of integrating commercial use of small drones into the National Airspace System and provide a structure for further development of regulations as the industry grows and matures.

Drones are different than manned aircraft. The FAA has attempted to provide regulations less burdensome than those for manned aircraft, given their small size presents less danger and potential damage. Drones, however, present two unique risks as compared to manned aircraft: (i) the operator is not aboard the aircraft making the monitoring of airspace to prevent a mid-air collision challenging, and (ii) the operator may lose positive control if the drone is flown beyond signal range. The proposed regulations address these concerns, as well as further mitigate risk by requiring operation in daylight-only, confining operation to certain areas, and requiring maintenance of a visual line of sight.

The FAA’s approach to regulating commercial use of drones is consistent with previously issued guidelines relating to the recreational use of drones (i.e. model aircraft). Although the FAA has historically considered “model aircraft” as falling within its purview, the FAA has not issued regulations specific to model aircraft given relatively little perceived risk. In 1981 the FAA released Advisory Circular 91-57 encouraging voluntary compliance with operating standards that included, among other things, selection of an appropriate operating site, limiting altitude to 400 feet, and requiring operators to give way to manned aircraft. These standards were applied to the recreational use of drones as that industry developed.

In 2007 the FAA issued a policy statement regarding unmanned aircraft system operations in the National Airspace System. See 72 Fed. Reg. 6689 (Feb. 13, 2007). The statement addressed drones used as (i) public aircraft, (ii) civil aircraft, and (iii) model aircraft. As provided in the statement, FAA policy requires a special airworthiness certificate be obtained to establish authority to operate drones as civil aircraft and affirmed that AC 91-57 serves as authority to operate model aircraft (i.e. drones for recreational use). The new proposed regulations governing commercial use of drones carves out of the requirement to obtain a special airworthiness certificate for certain civil aircraft, as described below.

On February 14, 2012, the President signed into law the FAA Modernization and Reform Act of 2012 (P.L. 112-95) (the “Act”), which included a “special rule for model aircraft.” In the Act, Congress specifically forbade the FAA to promulgate any rule or regulation regarding model aircraft if (i) the aircraft is flown strictly for a hobby or recreational use, (ii) the aircraft is operated in accordance with guidelines promulgated by a national hobby association or conforms to other community-based safety guidelines, (iii) the aircraft is no more than 55 pounds, (iv) the aircraft does not interfere with and gives way to any manned aircraft, and (v) prior notice and agreed operating procedures are established with airport air traffic control if the aircraft is flown within 5 miles of an airport. The FAA reasons the Act is not a complete bar to its regulation of the recreational use of drones arguing such use is subject to any regulation issued by the FAA generally applicable to all aircraft, such as rules restricting use of airspace.

Recent events highlight the applicability of general airspace restrictions to the operation of recreational drones. On May 14 a man was detained for unlawfully flying a small drone over the Whitehouse fence because the airspace is restricted. The FAA has responded to increased unauthorized entries into restricted airspace by issuing press releases informing the public, for example, that the National Capital Region is a “no drone zone.” The FAA has also issued press releases informing the public that certain events, such as the Super Bowl, are “no drone zones.” The FAA has even developed a “no drone zone toolkit” for federal, state and other agencies, complete with signage and informational cards, to use to promote knowledge of airspace restrictions. Further, the FAA is preparing to roll out a GPS-enabled smartphone application that informs users when they are in restricted airspace.

The Act defines “model aircraft” to mean an unmanned aircraft that is (i) capable of sustained flight in the atmosphere, (ii) flown within visual line of sight of the person operating the aircraft and (iii) flown for hobby or recreational purposes. The FAA interprets “visual line of sight” to require recreational drones to remain at all times visible to the operator and that the operator must be able to observe the aircraft with his or her own natural vision (which includes vision corrected by glasses and excludes binoculars and other vision-enhancing devices). Excluded from the Act are drones operated by persons or companies for business purposes, which still required a special airworthiness certificate for operation.

With this backdrop, the FAA developed the proposed regulations governing certain commercial uses of drones as the next phase of regulating the operation of unmanned aircraft in the National Airspace System.

Applicability of Proposed Regulations

Similar to the guidelines governing recreational use of drones, the proposed regulations apply to unmanned aircraft used for commercial purposes weighing less than 55 pounds, including the weight of any cargo aboard the aircraft. The regulations do not apply to aircraft conducting external load operation (i.e. carrying cargo external to the aircraft) or to aircraft transporting property or people for compensation, which constitute “air carrier operations” and are subject to more stringent regulations. Accordingly, the proposed regulations do not permit companies such as Amazon or Google to use drones to deliver packages to consumers (The FAA has, however, invited comments regarding allowing businesses to ship products to customers for payment as it looks towards creating additional rules in the future). The proposed regulations would allow the transportation of a drone owner’s property so long as the “load” is inside the drone and the total weight of the property and aircraft is less than 55 pounds. In other words, a box could be moved from point to point without any kind of compensation. In this context, permissible commercial uses of drones appear to include the transportation of documents, parts, or tools to a job site to facilitate performance of services.

The FAA believes the proposed regulations will enable commercial use of drones in various industries, including crop monitoring/inspection, research and development, educational/academic uses, powerline/pipeline inspection in hilly or mountainous terrain, antenna inspections, rescue operations, bridge inspections, aerial photography, and wildlife nesting area evaluations. Retailers such as dronelife.com already organize various drone models for sale that cater to these different commercial uses. The cost of a drone varies widely from as little as $50 to thousands of dollars. Cameras, extended-life batteries, and applications specific to certain drone uses may increase the cost.

Required Crew Members and Operator Certification

In lieu of requiring a pilot, flight engineer and flight navigator, the proposed regulations for commercial use of drones create two new crew member positions: an operator and a visual observer. The operator is the person who manipulates the flight controls of a small drone that affects the flight path of the aircraft. A “visual observer” assists an operator in seeing and avoiding other air traffic or objects aloft or on the ground. The operator is responsible for the small drone operation, including assigning duties to each person involved in the operation of small drones.

In order to be an operator of small commercial drones, a person must (i) be at least age 17; (ii) subject herself/himself to vetting by the Transportation Security Administration; (iii) pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center; (iv) obtain an unmanned aircraft operator certificate with small drone rating; (v) pass a recurrent aeronautical knowledge test every 24 months; and (vi) permit inspection of the drone, operator certificate, and certificate of aircraft registration. Various fees are imposed as part of the licensing process. Initial testing and registration expenses are estimated at $4,529. Visual observers need not be certified.

An operator is required to maintain the drone in a safe operating condition and inspect it prior to each flight. The operator and visual observer(s) must be situated so that each can view the drone at all times, but may use communication devices such as a radio and need not be in close proximity. The requirement that all observers maintain visual line of sight is meant to prevent a relay or “daisy-chain” formation that would potentially expand the area of drone operation and pose an increased public risk if there is a loss of aircraft control.

Operating Rules for Commercial Use of Drones

To protect the National Airspace System, a drone used for commercial purposes may not fly higher than 500 feet above the ground or faster than 100 mph (87 knots). There must be visibility of at least 3 miles from where the person operating the drone stands. The operator must keep the drone within his or her visual line of sight at all times in order to (i) know the drone’s location, (ii) determine attitude, altitude and direction, (iii) observe the airspace for other air traffic or hazards, and (iv) determine that the drone does not endanger the life or property of another. Similar to published guidance for recreational use of drones, the visual line of sight may not be enhanced by anything other than contacts or glasses. A momentary loss of sight, such as the drone flying behind a tree is permissible under the regulations and presumably permissible under the Act relative to the recreational operation of drones.

Both commercial and recreational drones must be operated during daylight hours only and must yield right-of-way to other aircraft, manned or unmanned. No drone may be flown over persons not directly involved in its operation. A drone may not be operated from a moving vehicle unless the vehicle is moving on water. Also, a drone used for commercial purposes must be a US registered aircraft, with a registration number appearing on the drone, and owned by a citizen or permanent resident of the United States. No registration or owner citizenship requirement exists for recreational use of drones.

Commercial and recreational drones may only operate in Class G airspace unless permission of Air Traffic Control is given to operate in Class B, C, D, and E airspaces. No drone may operate in Class A airspace.

Drone use remains in its infancy. In addition to the evolving regulations addressing safety concerns relating to increasing commercial use of drones, the boundaries of privacy will be tested in the years ahead as the industry develops and individuals, businesses and government entities increase the use of drones. Indeed, we have entered a new frontier.