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New FAA Rules Governing Commercial and Recreational Use of Drones

| Jan 27, 2021 | IP and Technology

This article updates my 2015 blog titled “A New Frontier: Commercial Use of Drones – Proposed FAA Regulations – and Rules Applicable to Recreational Use” published and still available on our website.

On December 28, 2020, the Federal Aviation Administration (“FAA”) announced new rules for Unmanned Aircraft (“drones”) that require “remote identification” of drones and allow operators of small drones to fly over people and at night under certain conditions.

When announcing the new rules, the FAA reported that drones represent the fastest-growing segment in the entire transportation sector, with currently over 1.7 million drone registrations and 203,000 FAA-certificated remote pilots. The new regulations further the FAA’s 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.

Remote identification (“Remote ID”) is commonly referred to as a “digital license plate,” but is much more. Remote ID is the capability of an unmanned aircraft in flight to provide certain identification, location, and performance information that people on the ground and other airspace users can receive.

The new regulations also allow routine operation of drones over people and at night under certain circumstances, thereby eliminating the need for those operations to receive individual waivers from the FAA.

Remote Identification Rules

Remote identification rules apply to all operators of drones that require FAA registration. All drones must be registered with the FAA, except those that weigh less than about ½ pound and are flown exclusively under the Exception for Recreational Flyers.

The new regulations become effective 60 days after the publication date in the Federal Register, which is expected to occur in January, 2021. Operational rules take effect 30 months after the effective date of the regulations. Operators of registered drones will have three (3) options to satisfy the Remote ID requirements.

First, “Standard Remote ID Drones” that will become available in the future will broadcast messages directly from the drone via radio frequency broadcast (e.g. Wi-Fi or Bluetooth technology) that will be compatible with existing personal wireless devices. The messages are required to include drone identification number, latitude/longitude, altitude, and velocity of the drone; latitude/longitude and altitude of the Control Station; emergency status; and time mark. The messages will be available to most personal wireless devices within the range of the broadcast, although drone identification numbers will be limited to the FAA and law enforcement.

Second, “Remote ID Broadcast Modules” will become available for existing drones. The Broadcast Module may be a separate device attached to the drone or a feature built into the drone. This option allows for retrofitting of existing drones, provided that the Broadcast Module serial number is entered into the FAA registration record for the drone. Broadcast Modules are required to emit Remote ID messages that include serial number of the module; latitude/longitude, altitude, and velocity of the drone; latitude/longitude and altitude of the takeoff location, and time mark. Drones remotely identifying with a Broadcast Module must be operated within visual line of sight at all times. The Broadcast Module is required to broadcast via radio frequency (e.g. Wi-Fi or Bluetooth technology) and be compatible with existing personal wireless devices and have a range similar to the Standard Remote ID Drone.

Finally, drones may be operated in FAA-Recognized Identification Areas (“FRIA”). That is, geographic areas recognized by the FAA where drones not equipped with Remote ID are allowed to fly. Organizations eligible to apply for establishment of a FRIA include community-based organizations recognized by the FAA Administrator, primary or secondary educational institutions, trade schools, colleges, and universities. Such drones must be operated within visual line of sight and only within the boundaries of a FRIA. The FAA will begin accepting applications for FRIAs 18 months after the effective date of the new rules. FRIA authorizations will be valid for 48 months, may be renewed, and may be terminated by the FAA for safety or security reasons.

The Remote ID requirements include other rules, such as design and production rules for manufacturers. For example, performance requirements for Standard Remote ID Drones include (1) the drone must be able to self-test so that the drone cannot takeoff if the broadcasting of Remote ID information is not functioning; (2) the Remote ID cannot be disabled by the operator; (3) Remote ID broadcast must be sent over unlicensed Radio Frequency spectrum; and (4) Standard Remote ID Drones and Remote ID Broadcast Modules must be designed to maximize the range at which the broadcast can be received.

Operation of Drones Over People or at Night

The new regulations amend Part 107 in title 14 of the Code of Federal Regulations and establish four (4) categories of small, unmanned aircraft for routine operations over people, and other provisions for routine operation of drones over moving vehicles. Categories differ based on weight of the drone (with load) and foot-pounds of kinetic energy upon impact. Category 1, a drone and load less than about a ½ pound, does not require FAA accepted Means of Compliance (“MOC”) or Declaration of Compliance (“DOC”), while other categories do.* Category 2 applies to drones having a severity of injury of 11 foot-pounds of kinetic energy upon impact while Category 3 applies to drones having a severity of injury of 25 foot-pounds of kinetic energy upon impact. Category 4 pertains to drones required to have an airworthiness certificate issued under Part 21 of FAA regulations. Information on obtaining an airworthiness certificate can be found on the FAA website. The new regulations become effective 60 days after the publication date in the Federal Register, which is expected to occur in January, 2021.

Different rules apply to the operation of drones over people depending on the category applicable to the specific drone. Also, remote operators wishing to operate drones at night must complete an updated initial test or participate in updated, recurrent online training prior to conducting nighttime operation. Further, before operating a drone at night, the drone must be equipped with anti-collision lights that can be seen for 3 statute miles and have a flash rate sufficient to avoid collision. Similar to Remote ID rules, the rules governing operation of drones over people or at night require manufacturers of drones to adhere to certain design and production rules.

On a personal note, the author recently witnessed demonstration of the DJI Mini 2, recreational drone. Unlike radio remote control devices of yesteryear, the Mini 2 has built-in safety features that make operating the drone easier, relatively speaking. For example, the “Return to Home” feature of the drone, once configured, will cause the drone to return to its home point if a problem is encountered such as low battery, lost connection, or other disruption in commands by the operator.

Commercial use of drones continues to increase. News reports indicate that Amazon received FAA approval last August to operate a fleet of “Prime Air” delivery drones; that Alphabet, Google’s parent company, received FAA approval for its subsidiary, Wing, to operate drones for commercial deliveries in the U.S.; and, that UPS recently received FAA approval to operate a fleet of drones as well. Further, American Robotics Inc. was reported to have recently issued a press release claiming that it has won FAA approval to operate automated commercial drone flights, that is flights without a person directing the drone or keeping it in the line of sight. News of these FAA approvals come from solid sources, but these approvals cannot be verified on the FAA’s official website as of the date of this blog.

Drone use is gaining in popularity. The FAA continues to balance the efficacy and prevalence of this new technology with protecting the safety of the public. Beyond safety issues, concerns remain about privacy matters connected with the operation of drones, including mandated publishing of information specific to the operation of each drone that is available real time to the public.

*A “means of compliance” describes the methods by which the person complies with the requirements for operating a drone over people or at night while “declaration of compliance” is a record submitted to the FAA attesting to operator/drone compliance with applicable rules.