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Washington D.C., 8 April 2021 – Global law firm Hogan Lovells announced today that Arjun Garg, the former Chief Counsel and Acting Deputy Administrator of the Federal Aviation Administration, has joined the firm’s Transportation regulatory practice as a partner based in Washington D.C.

Prior to his leadership roles at FAA, Garg also served as Chief Counsel of the Federal Transit Administration and as a U.S. Department of Justice trial attorney in the Federal Programs Branch of the Civil Division.

Drawing on his deep government leadership experience, Garg will advise transportation clients on a broad spectrum of regulatory, litigation and corporate matters and help lead Hogan Lovells’ top-rated aviation practice.

“I am thrilled to join the seasoned and highly respected transportation regulatory practice here at Hogan Lovells,” Garg said. “Innovation is reshaping transportation, and aviation in particular is poised to make tremendous advances. This is an exciting time to help guide our clients as they make that future a reality, and Hogan Lovells provides an outstanding platform to accomplish that work.”

“Arjun is a top-tier lawyer whose leadership experience at two key Department of Transportation agencies will be extremely valuable to our clients,” said Latane Montague, leader of Hogan Lovells’ Transportation regulatory practice. “He joins us at a critical inflection point for the transportation industry, and we are excited that our clients will have him in their corner alongside the rest of our first-class team.”

Hogan Lovells’ Transportation regulatory practice works with leading transportation companies and government agencies to solve the industry’s most complex regulatory, transactional and business issues. The team combines top-tier aviation, automotive, railroad, UAS, mobility, logistics and supply chain transportation regulatory practices in each of the world’s major markets.

Today, November 20, 2020, the FAA published the first batch of proposed airworthiness standards for type certification of six different unmanned aircraft system (UAS) models for public comment. The publication of the proposed airworthiness standards (also known as a “G-1 Issue Paper”) is an essential regulatory step that needs to occur before the FAA can issue a type certificate for a UAS. It is a critical development because this means the FAA is on the verge of issuing the first-ever standard type certificates for UAS.

The importance of type certification for the future of the commercial UAS industry in the U.S. and abroad cannot be overstated. Type certification is critical to enabling real-world, scalable, advanced commercial UAS operations. While the individual use-cases vary, each applicant’s proposed operations involve flights beyond visual line of sight of the pilot, and operations over people. The current process for approving expanded UAS operations (think operations in urban areas, of long distances, or in congested airspace) is a cumbersome and time-consuming case-by-case approval process requiring issuance of waivers and/or § 44807 exemptions.

The pathway to enabling these sort of complex but safe UAS operations will be much more streamlined for companies operating a UAS with a standard airworthiness certificate.

Six applicants had papers published in the Federal Register, including Airobotics, Matternet, and Zipline. As outlined in the FAA’s type certification policy, the applicants are all seeking type certification of their UAS models as a special class of aircraft under 14 C.F.R. §21.17(b). While the FAA has existing airworthiness standards for most traditional manned aircraft, due to their unique and novel design features, no such standards currently exist for UAS. Under §21.17(b), the FAA can type certify UAS as a special class of aircraft using customized airworthiness standards that the agency deems appropriate to the design of the UAS. Since the process of developing individualized airworthiness standards for a particular UAS model is considered a rulemaking activity, the FAA is required to publish the proposed standards in the Federal Register and seek public comment on those proposed standards. The public comment period for the six companies published today is open through December 21, 2020.

Congratulations to these six companies. This is undoubtedly an exciting day for them, but also for the broader commercial UAS industry. It is heartening to see the policies and regulations moving forward to enable this exciting new industry.

Here’s a quick look at a few of the UAS models that had their proposed airworthiness standards published today:

Airobotics Inc. OPTIMUS 1–EX


Zipline International Inc. Zip UAS Sparrow


Matternet, Inc. M2







When Hurricane Maria struck Puerto Rico in September, 2017, it destroyed 90 percent of the cell sites on the island; knocking out most communication with the outside world and significantly hampering relief effort. AT&T responded by deploying its Flying Cell on Wings (COW) – a drone outfitted with LTE radios and antennas to provide temporary voice, data, and Internet service in Puerto Rico.

As with other national disasters, Unmanned Aircraft Systems (UAS or drone) technology is playing a vital role in America’s response to the COVID-19 pandemic. Throughout the country, UAS technology can be safely deployed to assist impacted communities and aid the vital work of public health and safety officials. While the UAS community is clearly in a position to enhance the health and safety of all Americans, there are near-term challenges and obstacles that the industry will need to overcome.

UAS and the COVID-19 Response

UAS technology is already playing a vital role in our nation’s response to this pandemic. By their very nature, UAS limit person-to-person contact, promote social distancing and prevent further spread of the virus. As one example, in San Diego, California, the Chula Vista Police Department is using UAS outfitted with speakers to communicate to people, including individuals in difficult to reach areas, the services and resources that are available to help the community.

UAS can provide other essential services that both expedite logistics and mitigate the need for extensive human labor and interaction. UAS can be used to distribute COVID-19 testing kits, prescription drugs and other critical supplies to impacted communities and quarantined and isolated individuals. UAS can also play a vital role in supporting industry and the economy more broadly. As the virus has spread, personnel from all vertical market sectors of our economy are quarantined, while many employees are on mandatory telework. UAS are force multipliers in all vertical market sectors from public safety to industrial inspections, and everything in between.

The commercial UAS industry is available and ready to assist with public safety COVID-19 response efforts for the benefit of all Americans. To help identify where and how UAS can best aid ongoing response efforts, the Commercial Drone Alliance is currently conducting a survey that assesses UAS operator capabilities and readiness for deployment. That survey can be accessed here.

Impact of COVID-19 on the Commercial UAS Industry and DHS Guidance on Essential Workers

The COVID-19 pandemic will have an unprecedented effect on complex global supply chains and the movement of personnel. This disruption will no doubt impact the availability of necessary UAS-related parts and equipment from suppliers. Travel restrictions, social distancing requirements and closure orders will also impact employee work travel.

The U.S. Department of Homeland Security (DHS) has published guidelines to assist state and local officials with identifying critical infrastructure, and the essential workers needed to maintain critical infrastructure and services that Americans depend on during the COVID-19 response. Depending on the nature of UAS work to be performed, the DHS guidelines may promote the ability of certain workers to continue work during periods of community restriction, access management, social distancing, and/or closure orders. UAS operations that support critical infrastructure, energy, agriculture, communications and first responder relief efforts may be considered essential under the DHS guidelines.

How COVID-19 Legislation Affects the UAS Industry

The economic disruptions caused by this pandemic have had, and will continue to have, a disproportionate impact on U.S. small businesses, which includes the majority of UAS companies. To combat some of these economic disruptions, the U.S. government has an array of credit options available to small business in need of liquidity.

On March 25th, the U.S. Senate passed a $2 trillion stimulus package which is the third phase of the federal government’s response to the COVID-19 pandemic. The 800+ page “Coronavirus Aid, Relief, and Economic Security Act” (the CARES Act) is expected to be passed by the U.S. House of Representatives and be signed into law by the President in the coming days. The CARES Act will impact most stakeholders in the aviation community, including UAS companies. Among other forms of relief, the package includes $349 billion for small business loans and other assistance that UAS companies with fewer than 500 employees may be eligible for.

Additional stimulus packages at the federal level will likely follow and there is parallel activity occurring at the state and local level that will impact the UAS community and the industries they service. In the coming weeks and months it will be important to closely monitor federal, state and local legislation that will affect UAS industry stakeholders.

We understand it is a difficult time for our nation, and for our industry. We are nevertheless inspired by our community’s dedication and willingness to help during this time. If we can help you navigate these uncertain waters in any way, please let us know. We appreciate the opportunity to work with you.

Commercial UAV Flies BVLOS For 30 Miles


White House doors now open to meeting with stakeholders about drone Remote ID

In a much anticipated development, the Department of Transportation has just sent to the White House Office of Information and Regulatory Affairs (OIRA) the proposed rulemaking for remote identification (remote ID) of unmanned aircraft systems (UAS, or so-called “drones”). This is big news and an important step in moving drone policymaking forward in the United States to enable expanded commercial UAS operations.

The commercial drone industry has grown to a level few could have imagined only a couple of years ago and technological advances continue to fuel new and innovative commercial use-cases. As drone technology has improved, we have also seen increasing numbers of headlines raising legitimate drone security issues. We discussed many of these drone security issues at our third-annual Domestic Drone Security Series Event in Washington, DC in April of this year. There have been reported close encounters between drones and manned aircraft, and rogue drones flying where they should not lawfully fly—including at airports, military bases, critical infrastructure, and large outdoor sporting events.

Recognizing the potential safety and security benefits of a requirement that would allow public officials to remotely identify UAS, the FAA established the UAS ID and Tracking Aviation Rulemaking Committee (the ARC) in May 2017 to provide recommendations to the agency. The ARC provided its report to the FAA in September 2017. And while the FAA Extension, Safety, and Security Act of 2016 required FAA to issue regulations for remote identification by July 2018, the publication of a proposed rule has been continually delayed.

Publication of a proposed remote identification rule has been a top priority for the commercial drone industry because broad authorization for expanded UAS operations, including flights at night, beyond visual line of sight, and over people, have essentially remain grounded until the law enforcement and national security communities are comfortable with their ability to identify unmanned aircraft.

This development means that a proposed rule for remote ID is closer to publication for public comment. It also means that the White House is open to meeting with interested stakeholders during this time. NOW is the last realistic opportunity to influence this proposed rule before it is publicly released for comment.

OIRA is located within the Office of Management and Budget (OMB) within the Executive Office of the President. It is commonly said that OIRA is the most important agency in Washington, DC that nobody has ever heard of. OIRA reviews draft regulations before they are implemented and reviews and evaluates cost/benefit analyses to determine whether the benefits of a rule would justify the costs.

As part of OIRA’s review process, any member of the public—including UAS manufacturers, operators, users, and other industry stakeholders—can request a meeting with the agency to discuss the proposed rule, what it should contain, and how the rule will impact them. The meetings are conducted by OIRA officials and staff, and a log of all meetings is publicly available. The proposed rule will not be released until after the OIRA review process is completed and therefore stakeholders now have one last chance to influence the proposed rule prior to its publication.

A meeting with OIRA provides a golden opportunity for stakeholders to make their voices heard on this key policy and regulatory issue. The contours of the limitations and parameters for the remote ID rule will be largely shaped by the proposed rule, and thus companies that want to provide input on this vitally important issue now have the chance to provide their ideas directly to the White House.

We have significant experience with such OIRA meetings on UAS issues. If you would like to communicate your views to the White House during this review period, let us know. We would be happy to help.

Canada’s drone industry is taking off. Like its neighbor to the south, the commercial remotely piloted aircraft system (RPAS) industry is growing quickly. In Canada, the industry has doubled in size every two years over the past decade. The economic impact of the expanding commercial drone industry in Canada and the U.S. is expected to surpass $7 billion by 2024.

While the economic impact and societal benefits of commercial drone use in Canada are significant, Canadian regulators are grappling with the same questions faced by the Federal Aviation Administration (FAA) in the U.S.: How do you enable the continued safe expansion of commercial drone use while ensuring the safety and security of the public?

Earlier this month, Canada’s Regulations Amending the Canadian Aviation Regulations (Remotely Piloted Aircraft Systems) went into effect. The new regulations cover “small” drones, or RPAS, that (1) weigh between 250 grams (0.55 lbs.) and 25 kg (~55 lbs.) and (2) are operated within the pilot’s visual-line-of-sight. The operation of drones weighing more than 25 kg requires a Special Flight Operations Certificate (SFOC).

Below is a short summary of Canada’s new drone regulations and a look at how they compare to drone regulations in the United States.

Summary of Canada’s New Drone Rules

Canada’s rules set basic requirements for all drones flown in the national airspace, regardless of operator intent. For instance, all drones must be registered with Transport Canada and clearly marked with their registration number before they are flown. Additionally, all drones must generally be flown at an altitude of less than 122 meters (400 feet), and must not be flown over or within the security perimeter established by a public authority in response to an emergency, or at “advertised events”, such as outdoor concerts, festivals, or market or sporting events unless the operator is granted a SFOC. For those who violate these rules, penalties include fines and incarceration.

The new rules also overhaul the categorization of drone pilot certificates. Instead of issuing different certificates for drones used for recreational purposes or commercial purposes, and focusing on operator intent like the U.S. rules do, the new rules create two certificates based on the type of drone operation: one for “basic operations” and one for “advanced operations.”

Basic operations are operations that are conducted outside of controlled airspace, more than 30 meters (100 feet) away horizontally from bystanders, and more than 3 nautical miles from an airport (or 1 nautical mile from a heliport). To conduct basic operations, a pilot must be at least 14 years old, complete an online knowledge exam, and obtain a pilot certificate for basic operations.

Advanced operations are operations that are conducted: (1) within controlled airspace (with air traffic control approval), (2) closer than 30 meters horizontally to bystanders or (3) within 3 nautical miles from an airport (or 1 nautical mile from a heliport). To conduct advanced operations, a pilot must be at least 16 years old, complete an online knowledge exam, complete a flight review with a Transport Canada-approved training provider, and obtain a pilot certificate for advanced operations.

For certain types of advanced operations, the drone must meet RPAS Safety Assurance standards before being flown. This standard describes the technical requirements manufacturers are required to meet in order to make a declaration necessary for the drone to be used in advanced operations. For operations in controlled airspace, the manufacturer of the drone must certify that the drone meets certain minimum lateral and altitude position accuracy. For operations “near” people, the manufacturer must certify that the occurrence of any single failure of the drone which may result in a severe injury to a person on the ground within 30 meters of the operation must be shown to be “remote.” For operations “over” people, the manufacturer must certify that no single failure of the drone may result in a severe injury to a person on the ground within 5 meters horizontal of the operation, and that the occurrence of any combination of failures of the drone which may result in a severe injury to a person on the ground within 5 horizontal meters of the operation must be shown to be remote. A list of RPAS models eligible for certain advanced operations is available here.



Canadian Drone Regulations v. U.S. Drone Regulations

There are many similarities between the Canadian and U.S. regulatory regimes for the operation of small drones. For instance, both countries generally cap the altitude of a flying drone to 400 feet, define small drones as those weighing between 250 grams and ~55 pounds, and do not require an operator to obtain liability insurance. Both regulatory regimes also prohibit beyond visual line of sight (BVLOS) operations without obtaining additional regulatory approvals. In Canada, BVLOS operations can only be conducted under a SFOC and in the U.S. a Part 107 waiver is required. Canada’s SFOC process is very similar to the FAA’s Part 107 waiver process.

One key difference between the two regulatory regimes is operations over people. The new Canadian regulations permit operations over people (defined as operations at a distance of less than 5 meters horizontally and at any altitude) provided that the manufacturer of the drone makes the required declarations and the other requirements for “advanced operations” are complied with. The U.S. regulations currently prohibit operations over people (defined as directly over a person) unless an appropriate waiver has been obtained from the FAA. To-date, the FAA has only issued 33 such waivers. The FAA recently published a Notice of Proposed Rulemaking (NPRM) for drone operations over people, however that rulemaking process is not expected to be finalized any time in the near future.

In addition, as noted above, unlike the U.S. regulatory framework, the Canadian regulations do not distinguish between recreational or commercial drone uses. Finally, the Canadian regulations require pilots to demonstrate flight proficiency for advanced operations, whereas the U.S. regulations only require commercial operators to pass an aeronautical knowledge exam.

If you have questions regarding Canada’s new drone regulations or the FAA’s drone regulations, please contact the Global Regulatory Transportation team at Hogan Lovells.








The Evolving Space Launch Industry and the Need for Streamlined Regulations

Commercial space launches have recently skyrocketed in quantity and complexity and the economic impact of these changes will be substantial. World-wide, the commercial space industry is expected to grow dramatically and Goldman Sachs analysts predict the sector would grow to about $1 trillion by 2040. As for quantity, the launch rate in the U.S. alone has increased from 9 licensed launches in 2015 to 33 licensed launches in 2018, and the Federal Aviation Administration (“FAA”) predicts that up to 40 FAA-licensed commercial space launches will occur this fiscal year. As for complexity, space launch vehicles can now be reusable or expendable, can occur from multiple sites and on various timelines, and these vehicles are operating in more unique and individualized ways.

Despite the industry undergoing these substantial changes, current FAA licensing requirements have failed to adapt to these changes in four main ways, according to the agency itself. First, the FAA currently requires different vehicle operator licenses for different launch vehicles, launch activities, and launch sites, without demonstrating that requiring different licenses increases public safety. Second, current space launch regulations are highly prescriptive and do not account for other less cumbersome ways that launch operators can meet the spirit of the licensing requirements. Third, FAA jurisdiction over space launches has become excessive and duplicative. Finally, the current safety framework for these launches has failed to keep pace with new technological innovations.

The FAA’s Proposed Regulatory Changes

In response to these shortcomings, the FAA issued a notice of proposed rulemaking (“NPRM”), entitled “Streamlined Launch and Reentry Licensing Requirements,” which was published on April 15, 2019 and is currently open for public comment. The NPRM offers the following four main solutions to simplify and modernize the FAA’s commercial space launch and reentry regulations

(1)    Create a Single Vehicle Operator License and Tailor License Duration  

The NPRM proposes to establish a single license that would cover the launch activity itself, launch vehicles, and launch sites. As for launch activities, the NPRM proposes that a “vehicle operator license” be used for all commercial launch and reentry activity. This would simplify the current licensing process by consolidating several different licenses that are currently required into a single license.   As for launch vehicles, the proposed rule would eliminate the distinction between expendable launch vehicles (“ELVs”) and reusable launch vehicles (“RLVs”) when issuing licenses. Lastly, launch licenses would be expanded to cover multiple launch sites, as opposed to issuing site specific licenses. By allowing one license to cover different vehicles, different types of operations, and different launch sites, this NPRM would streamline the licensing process and would make it administratively easier for commercial space launches to occur.

The NPRM allows greater flexibility in determining the license’s expiration date. The current regulations do not provide this flexibility, which generally sets licenses to expire after two years from the date of issuance for an RLV and five years for an ELV, or upon completion of all launches authorized by the license if it occurs first. Under the proposed rule, the FAA would be able to tailor the licenses duration to account for each launch’s specific timing concerns (with a license duration limit of five years). In some instances, applicants may prefer a shorter license duration so they can be relieved of their obligations under an FAA license (such as the requirements to demonstrate financial responsibility and allow access to FAA safety inspectors) as soon as possible. This new rule would allow these applicants that option and would be sensitive to each applicant’s timing needs.

(2)     Implement More Performance-Based Licensing Requirements and Allow Launch Operators to Propose Alternative Routes for Compliance

The current licensing procedure is overly burdensome because it may require an applicant to “follow 350 pages of federal safety regulations and meet 2,845 specific regulations.” Seeking to simplify this process and provide launch operators with more input in meeting compliance standards, the proposed rule would create two paths to meet any particular licensing requirement necessary to perform a commercial space launch.

Following the first path, the applicant can comply with new FAA regulations, which would include more performance-based requirements as opposed to prescriptive-based requirements to allow greater flexibility and scalability in the rule’s application. Recognizing that the government “could attain the same level of public safety by auditing a company’s own safety program,” the NPRM would provide a second path that allows a licensing applicant to propose an alternative approach for compliance that meets an “equivalent level of safety” as the current safety regulations require. This second path allows operators to meet safety requirements with greater flexibility and in predictably less time. According to the Safety Engineering and Analysis Center, companies already launching rockets could complete this streamlined licensing process in as little as three months.

(3)     Limit FAA Jurisdiction

The task force chartered by the FAA in March 2018 to study streamlined procedures and requirements for commercial space launch and reentry licensing, has suggested that FAA jurisdiction has become excessive and duplicative. In response, the proposed rule would limit FAA jurisdiction in two main ways. First, it would limit FAA jurisdiction over ground safety to operations that are hazardous to the public. Second, the NPRM proposes that an applicant who wishes to launch from a federal launch range may satisfy new performance-based requirements for ground and flight safety by complying with Air Force and NASA practices. The current rules require an operator to comply with the FAA’s safety review and approval requirements and other launch safety requirements. The new approach would give an operator more avenues to satisfy requirements to launch from a federal range.

 (4)     Update Safety Framework

A key criticism of the current ELV launch regulations is that they are too prescriptive to keep pace with new innovations. For instance, launch operators must have at least 11 plans that define how launch processing and flight of a launch vehicle will be conducted, even though requiring 11 plans are not necessary to conduct safe launch operations. On the other end of the spectrum, RLV launch regulations have been criticized for being too general and lacking regulatory clarity. For example, RLV launch regulations do not contain specific qualification requirements of flight safety systems, flight safety analysis, and ground safety. The NPRM proposes a safety framework designed to strike a balance between prescriptive and flexible regulations and that covers all launch vehicles. The framework essentially falls into three parts: universal rules, prescriptive rules for flight safety and ground safety, and flexible rules on achieving public safety.

As for the universal requirements, all applicants would need to comply with core system safety management principles through a system safety program. The prescriptive rules will differ slightly for flight safety and ground safety. For flight safety, an operator would need to satisfy a preliminary flight safety assessment and conduct a flight hazard analysis to identify public hazards and determine the appropriate hazard control strategy for a phase of flight or an entire flight. For ground safety, an operator would be required to conduct a ground hazard analysis that identifies ground hazards and determine the appropriate ground hazard control strategy. With regards to the flexible rules, the use of a flight hazard analysis to derive hazard controls would provide flexibility that does not exist under current prescriptive requirements in that it is optional in certain situations. If the operator uses proven hazard control strategies such as physical containment, wind weighting, or flight abort, the flight hazard analysis would not be required. This overhaul of the safety framework would provide both the flexibility and regulatory certainty that were lacking under the current safety provisions.

The public comment period on the NPRM was recently extended to July 30, 2019. Given the breadth, significance, and complexity of the proposed rule, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Please contact the Global Regulatory Transportation team at Hogan Lovells if you are interested in commenting on the NPRM.

The benefits of commercial drones are substantial. However, current rules limit the commercial marketplace from being able to take advantage of some of drone technology’s most obvious safety and efficiency benefits. To capitalize on the life-saving and economic benefits of drones, companies need to be able to fly in urban and suburban environments, where people are. To respond to disasters, they may need to fly near cities. Countless commercial drone use cases rely
on the ability to fly over people.

Recognizing this, in an effort to continue moving Unmanned Aircraft Systems (UAS) integration forward, earlier this week, U.S. Secretary of Transportation, Elaine Chao, announced two regulatory actions covering expanded UAS operations: A proposed rule on operations over people and at night, and a drone security “pre-rule” designed to enable the integration of drones into our national airspace in a way that is safe and secure. The industry has been awaiting these regulatory actions for two years, so the announcement was a welcome development.

1. Notice of Proposed Rulemaking (NPRM) – Operations Over People and at Night

First, the Federal Aviation Administration (FAA) released a draft NPRM that would allow for operations of small UAS at night and over people in certain conditions without obtaining a waiver. Under the proposed regulations, for night operations, a remote pilot in command may operate a small UAS at night as long as: 1) The remote pilot has satisfactorily completed updated knowledge testing or training requirements; and 2) the small unmanned aircraft maintains certain anti-collision lighting that remains lit throughout the flight.

For operations over people, which are more complex, no waiver would be required under certain conditions, based on the level of risk the sUAS is deemed to present to people on the ground. The proposed rule imposes certain requirements on manufacturers and others on operators.

The FAA divides operations into three categories of permissible operations over people. Category 1 operations, i.e. those utilizing sUAS of 0.55 pounds or less, would be broadly allowed to fly over people. Category 2 and 3 operations would require compliance with a performance-based set of parameters in order to fly over people.

Among other requirements, Category 2 and Category 3 have injury threshold requirements. First, the sUAS must be designed such that it will not result in an injury to a person as severe as the injury that would result from a transfer of 11 ft-lbs of kinetic energy (Category 2) or 25 ft-lbs of kinetic energy (Category 3) from a rigid object. Second, the FAA proposes that the sUA would not have exposed rotating parts that could lacerate human skin. Third, no small UAS could be operated over people if it has an FAA-identified safety defect. For Category 2, a safety defect would be any material, component, or feature that presents more than a low probability of causing a casualty when operating over people (a casualty being a serious injury, which corresponds to a level 3 injury on the Abbreviated Injury Scale). For Category 3, the safety defect would be one that presents more than a low probability of causing a fatality when operating over people.

Category 3 allows for a higher injury threshold than Category 2, but limits an individual’s exposure to the risk of injury through three operational limitations: (1) a prohibition on operations over any open-air assembly of people; (2) the operations would have to be within or over a closed or restricted-access site and anyone within that site would have to be notified that a sUA may fly over them; (3) for operations not within or over a closed or restricted-access site, the sUA may transit but not hover over people.

Before a Category 2 or Category 3 sUA could be used to fly over people, the manufacturer would be required to demonstrate, to the FAA’s satisfaction, that the aircraft met these injury threshold requirements through a Means of Compliance (i.e., the method a manufacturer would use to show that its small UAS would not exceed the injury threshold upon impact with a person). The FAA’s proposal does not tell manufacturers which method or test to use to establish compliance, instead allowing the manufacturer to develop a test and present evidence to the FAA showing that the test is appropriate and accurately demonstrates compliance.

Notably, the NPRM discusses the importance of security and notes that the FAA plans to finalize the remote identification rulemaking prior to finalizing the proposed expanded operations rule. The proposed rule would also expand the categories of operations from which a Part 107 waiver could be sought.

2. Drone security “pre-rule”

Second, the FAA released a draft Advanced Notice of Proposed Rulemaking which seeks input and information from the public on drone security issues around how to balance innovation with law enforcement and national security needs. Topics covered include whether and in what circumstances the FAA should promulgate new rulemakings to require stand-off distances, additional operating and performance restrictions, the use of UAS Traffic Management (UTM),
additional payload restrictions, design requirements, and critical safety systems.

The FAA, and perhaps other agency partners, may design rules around the feedback the agency receives. Any company or organization interested in drone security issues ought to consider filing public comments for consideration. There will be a comment period of 60 days after publication in the Federal Register.

These regulatory actions will be discussed at our upcoming Domestic Drone Safety and Security Event on April 9, 2019. If you have not yet registered, space is filling quickly; please RSVP today.

Image result for avitas systems imagesThe commercial unmanned aircraft systems (UAS or drones) market is taking off in the United States and around the world. Recent innovations have transformed what used to be considered toys into powerful tools that provide substantial safety and efficiency benefits to the commercial industry, governmental institutions, and the public.

However, many of the most promising drone-use cases require the ability to fly long distances beyond the range of human sight. Whether drones are being used to inspect oil and gas and other critical infrastructure in remote locations, respond to natural disasters like hurricanes, or deliver packages, companies need to be able to fly drones beyond visual line of sight (BVLOS) of the pilot.

However, under the current regulatory framework for commercial drone operations in the United States (Part 107), drone flights BVLOS of the pilot are prohibited without an approval from the Federal Aviation Administration (FAA), and those approvals often have conditions that can limit their commercial usefulness.

The FAA recently issued Avitas Systems, a GE venture, a precedent-setting exemption that opens the door to true commercial BVLOS operations. The exemption allows Avitas Systems to operate its UAS BVLOS of the pilot in Texas’ Permian Basin for critical infrastructure inspections and the permission granted to them is unique in that it does not require the use of visual observers.

As of October 25, the FAA has issued 2,174 Part 107 waivers – but only 24 of them (or .011 percent) are BVLOS waivers (with a few additional BVLOS exemptions that have been approved). While the FAA and industry have referred to these previously granted approvals as “BVLOS,” all of these approvals required the use of more visual observers to constantly visually scan the airspace with their eyes to identify other aircraft that could create a collision hazard with the drone. This method is limited in its utility; it requires the use of more personnel on site, which can be expensive and impractical for many real-world drone operations that require long-range flights, often in rural remote areas.

Instead of having to rely on human eyes as the primary means of deconfliction with other aircraft, the FAA has authorized Avitas Systems to use a ground-based radar system to detect other aircraft flying at low altitudes near the area of operation. This is the first FAA-approved use of radar for civil BVLOS operations.

The ability to operate in the Permian Basin is hugely important for Avitas Systems, and the BVLOS permission is just as significant for the commercial drone industry at large. Avitas Systems’ new permission represents a very important development for oil and gas safety, and for the commercial drone industry at large. The FAA’s willingness to approve BVLOS operations that rely on technology mitigations, like ground-based radar, as opposed to impractical operational mitigations like visual observers, is a strong step in the right direction as we seek to bring the safety and efficiency benefits of commercial drones to the American people.

Allowing BVLOS operations is also a boon to transportation safety in the Permian Basin. According to 2018 statistics published by the Texas Department of Transportation, a vehicular fatality occurred every 37 hours across 16 counties in the Permian Basin for the first four months of 2018. UAS technology is valuable in helping address these numbers by reducing the number of hours that inspectors travel on a regular basis to perform surveillance activities in remote areas. The use of UAS technology also facilitates the fulfillment of critical safety and environmental goals of the oil and gas industry and government agencies.

Avitas Systems used AiRXOS’ waiver and exemption service for system design, safety mitigation, testing, analysis, and validation support in obtaining the BVLOS permission. Avitas Systems was also supported by AiRXOS and Shell Air Transport – Americas. Partner Lisa Ellman and Senior Associate Matthew J. Clark of Hogan Lovells assisted the team through the FAA exemption process.

The Federal Communications Commission is proposing to bring a $2.8 million penalty against HobbyKing for marketing drone-attachable audio/video (AV) transmitters that operate on unauthorized frequencies.

For marketers and retailers of unmanned aircraft systems (“UAS”) and attachable devices, this penalty signals that the FCC is cracking down on the makers and marketers of noncompliant UAS and UAS-attachable devices. This penalty also serves as a reminder to operators, who are required to have an FCC license to operate a drone, even if it only operates on amateur frequencies.

According the FCC’s Notice of Apparent Liability, HobbyKing purported to offer UAS-attachable AV devices that operate on amateur radio frequencies (which do not require FCC certification).  On closer inspection, though, those devices also operated on additional frequencies, including some that require certification.  Moreover, as the notice states, some of the devices also apparently operated at power levels in excess of what is permitted for amateur equipment.

HobbyKing argued that it did not market its devices to customers based in the U.S.  The FCC was not persuaded, however, finding that HobbyKing had a record of sales in the U.S. and did not place limitations on shipping to the U.S.  The Commission was also not persuaded by Hobby King’s argument that the burden was on the customers to comply with local laws, stating that the burden of device compliance falls on the makers and marketers of the devices.

The Commission also took issue with:

  • Repeated violations after the FCC informed HobbyKing of the compliance issues;
  • Intentional marketing of the devices; and
  • Untimely and incomplete responses to the FCC’s letter of inquiry.

The FCC found particularly problematic that twelve of the devices operated on restricted frequencies used by the FAA, creating a risk to public safety and that another three devices operated at impermissibly high power levels.

The base forfeiture for violating these FCC rules is $7,000 for each violation or each day of continuing violation. The Commission adjusted this base upward to $12,500 for each of the 50 of the AV transmitters, due to the repeated violations, intentional marketing of unauthorized devices, and untimely/incomplete responses. For the remaining 15 transmitters that operated on restricted frequencies or at impermissible power levels, the FCC raised the penalty to the statutory maximum of $147,290. Adding another $39,278 for HobbyKing’s failure to fully respond to the Letter of Inquiry or to respond at all to the Letter of Inquiry Citation, the Commission proposed total forfeiture of $2,861,128.

Typically when a Notice of Apparent Liability is filed, the recipient has the option of paying the fine, petitioning for reconsideration of the facts or legal bases of the notice, or entering into a consent decree with the Commission.

To assist consumers, marketers, and manufacturers of drone AV transmitter accessories, the FCC’s Enforcement Bureau also issued an enforcement advisory.  For marketers and operators of AV transmitters, here are a few important takeaways:

  1. Only manufacture or market devices that operate on amateur frequencies, unless you receive FCC certification for operating on other bands;
  2. Keep transmitter power within the levels of the Commission’s rules;
  3. If the FCC contacts you regarding devices you’re marketing, seek legal counsel;
  4. If you receive a Letter of Inquiry, respond in a timely, complete, and accurate manner; and
  5. Both commercial and amateur drone operators have a responsibility to ensure that the equipment they are using complies with applicable FCC regulations because they could also be subject to FCC civil penalties for operating drones with noncomplying radio frequency devices.

For clients who operate at the intersection of communications, transportation, and data collection and use, Hogan Lovells provides a deep bench of experienced global regulatory practitioners. For more information on the laws and regulations concerning UAS and UAS-attachable devices or other connected device and communications issues, please contact Lisa Ellman at Lisa.Ellman@hoganlovells.com, Mark Brennan at Mark.Brennan@hoganlovells.com, or Trey Hanbury at Trey.Hanbury@hoganlovells.com.

The authors wish to thank Ryan Thompson in our Washington D.C. office for his assistance in preparing this article.