Drones are the future of transportation and information technology. Recent innovations have transformed what used to be considered toys into powerful tools that provide substantial safety and efficiency benefits to commercial industry, educational institutions, humanitarian NGOs, and the public.  Once properly enabled, the integration of drones into our nation’s National Airspace System will save countless lives and have a significant economic impact here in the United States.

However, many of the safety and efficiency benefits of drones require the ability to operate over people. To respond to disasters, or deliver packages, or gather the news, companies need to be able to fly in urban and suburban environments, where people are. The current regulatory framework does not allow for flights over people without a Part 107 Waiver from the FAA.  But according to one recent study of FAA Part 107 waivers granted and denied to-date, a waiver to operate over people is the most difficult waiver to receive from the FAA. This makes the new and precedent-setting FAA Part 107 Waiver issued to CNN for operations over people all the more important.

The FAA recently issued the first ever Part 107 Waiver authorizing drone operations over people for closed-set filming to CNN. This is a significant success for not just film and media companies, but for large swaths of the commercial drone industry.

To understand the significance of the new operations over people waiver issued to CNN, some background on Part 107, the rule broadly authorizing commercial operations with small UAS (drones), and the FAA’s history of approving closed-set filming drone operations under the “Section 333” process is necessary.

Background: History of Closed Set Filming under Section 333 Exemptions

Building off its historical practice of issuing waivers to authorize helicopter operations at low altitudes over people for closed-set motion picture and television filming, in September 2014 the FAA issued the first “Section 333” exemptions to six different Hollywood film companies to allow drone flights over people on a movie set. As part of its review process, the FAA correctly recognized that operations over people who are involved with and have consented to an operation should be treated differently than operations over members of the public, and that different policy frameworks should govern each. Notably, “participants” in the Section 333 closed-set filming context were defined as people associated with the filming production who acknowledged and accepted the risks associated with the drone operations.  This definition was broader than the flightcrew only.

By the time Part 107 became effective in August 2016, the FAA had issued over 500 of these closed-set filming exemptions. There were no known safety incidents.  These exemptions had a limited duration of two years.

Part 107 Waiver Process

Implemented in August 2016, Part 107 was an important step forward for the commercial UAS industry. However, Part 107 limited operations in critical ways.  Significantly, the rule prohibited flights directly over people other than the flightcrew. “Participants” was defined narrowly under Part 107, and unlike the Section 333 context, did not include people who acknowledged and accepted the risks associated with the drone operations.  Under this narrow definition of a “participant,” personnel engaged in activities related to what the drone is being used for are nonparticipants, just as if they were any other member of the general public. This prohibition has created significant obstacles for commercial drone operators that want to use drones near, around, and over people, as a waiver would therefore be necessary to fly a drone over participants other than the flightcrew.

Meanwhile, as Part 107 took effect, the FAA phased out Section 333 exemptions. So the question then became whether the Part 107 Waiver process would provide companies with a viable path forward for conducting operations over participants other than the flightcrew.

Until now, there did not appear to be a viable path forward. In reviewing waiver applications, the FAA for months utilized only very conservative thresholds for assessing the risks associated with drone operations over people.  Consistent with the framework proposed by the Micro-UAS Aviation Rulemaking Committee (Micro-UAS ARC) for flights over people, the FAA’s review process focused solely (or almost entirely) on kinetic energy at impact. In other words, the FAA asked only: How hard will a drone hit someone if it falls from the sky? While this kinetic injury-based approach to assessing risk has value in simplicity, it fails to account for the full scope of operational and technical mitigations adopted by many applicants to help ensure safety.  Moreover, a kinetic injury-based approach will only work if the thresholds adopted are reasonable.  As we previously blogged about here, even the FAA’s own commissioned report on UAS human collision hazards suggests that previously considered thresholds were too conservative and did not accurately reflect the risks to a person of being struck by a falling drone.

The Significance of the New Part 107 Waiver

The FAA took a critical step forward with its issuance of CNN’s new Part 107 Waiver. On the surface, the waiver is important for the commercial drone industry because it is the first waiver authorizing drone operations over people for closed-set filming.  But its real significance goes deeper: With this new waiver, the FAA has once again recognized (correctly) that different policy frameworks should govern operations over people who are involved with the work being performed and have consented to the risks of drone overflight, versus operations over general members of the public.  Unlike prior FAA Waivers issued for operations over people, the FAA did not look solely to the kinetic energy of a falling drone for its risk assessment.  The waiver authorizes CNN to operate any drone weighing less than 55 pounds over people with no altitude restrictions (beyond those that apply generally to all Part 107 operations).

Importantly as well, the category of people over whom CNN is authorized to fly drones under the new Part 107 Waiver is broader than what used to be permitted in the Section 333 closed-set filming context.  In the Section 333 context, the ability to fly over people only applied to operations conducted for the purpose of closed-set motion picture and television filming and production.  In this new precedent-setting waiver, the authority to fly over people is not tied to any specific type of operation.  Under the CNN waiver, authorized persons whom the drone can fly over include people “necessary to accomplish the work activity directly associated with the operation…

This is a big deal because it sets a precedent for not just film and media companies, but for other industries that also need to operate over people. The authority that CNN has to fly over news broadcasters on a film set could apply just as equally to flights over workers on a construction site or plant personnel at a critical infrastructure facility.

We should all be thankful for this step forward for the commercial drone industry. The new CNN waiver marks a common sense step forward as the FAA seeks to allow safe and expanded drone operations over people.  We hope that broad authorization in the form of a reasonably-crafted “operations over people” rulemaking will come next.

For additional information, see our press release on CNN’s new Waiver here.

In the last few weeks, both houses of Congress have released draft FAA Reauthorization bills to continue FAA funding which runs out this fall. While the House bill’s proposal to privatize air traffic control in the United States has garnered the most attention, both the House and Senate bills contain lengthy and significant legislative language that could have a dramatic effect on commercial and hobbyist drone operations in the United States.  Below is a brief summary of the main UAS provisions in both the House and Senate version of the bill.  We are closely tracking this legislation and will keep readers apprised of updates as they occur.

Officially titled the 21st Century Aviation Innovation, Reform, and Reauthorization (AIRR) Act, the House FAA Reauthorization Bill includes the following UAS highlights:

  • UAS Traffic Management (UTM) System: Directs the FAA to initiate rulemaking within 18 months to establish procedures for issuing air navigation facility certificate to operators of low-altitude UTM systems. Similar to the “Section 333” process in the FAA Modernization and Reform Act of 2012, the bill directs the FAA to consider whether UTM systems posing the least amount of risk to the National Airspace System or the public could safely operate now, and if so, to establish requirements for their safe operation in the National Airspace System.
  • Risk-Based Permitting Process: Establishes a risk-based permitting process to authorize UAS operations that meet certain safety standards. This section of the bill is a holdover from the House’s proposed Bill last year and was obviously drafted prior to the enactment of the FAA’s Small UAS Rule (Part 107).
  • Small UAS Air Carrier Certificate: Establishes an air carrier certificate for operators of small UAS for package delivery.
  • Beyond Visual Line of Sight (BVLOS) Operations at FAA Test Sites: Extends the FAA test site program and directs the FAA to permit and encourage BVLOS flights of UAS equipped with sense-and-avoid technology at test sites.
  • UAS Privacy Review: Requires a DOT study on the privacy implications of UAS operations.
  • UAS Registration: Directs the DOT Inspector General to assess the FAA’s small UAS registration system and requires FAA to develop and track metrics to assess compliance with and effectiveness of the system.
  • Study the Role of State and Local Governments: Directs the DOT Inspector General to study the potential roles of state and local governments in the regulation and oversight of low-altitude small UAS operations.
  • Pay-to-Play: Requires the Comptroller General to study appropriate fee mechanisms to recover the costs of regulation and oversight of UAS and the provision of air navigation services to UAS.

The Senate also released its own version of the draft FAA Reauthorization Bill, which includes the following UAS provisions:

  • New Privacy Policy Requirement: Requires commercial UAS operators to have a publically available written privacy policy that describes how they collect, use, retain, disseminate and delete any data collected with the UAS.  Newsgatherers using UAS would be exempt from the requirement.
  • New Database of Commercial and Governmental UAS Operators: Requires the FAA to establish a public database of public and civil (commercial) UAS operators. The database would include the owner/operator’s name, email address, phone number and UAS registration number.
  • Safety Design Standards and New Requirements for UAS Manufacturers:  Directs FAA to charter an aviation rulemaking committee (ARC) to develop design and production standards (consensus safety standards) for small UAS sold in the United States.  In order to sell most small UAS in the U.S. market, manufacturers would be required to certify to the FAA that the small UAS meets the consensus safety standards.
  • Review of Privacy Issues Associated with UAS: Requires the Comptroller General of the United States to conduct and submit to the appropriate committees of Congress a review of the privacy issues and concerns associated with the operation of UAS.
  • UAS Test Sites: Continues test site funding through September 30, 2021.
  • UAS Safety Enforcement: Requires the FAA to establish a program to utilize available remote detection and identification technologies for safety oversight, including enforcement actions against operators of UAS that are not in compliance with applicable federal laws and regulations.
  • Airport Hazard Mitigation and Enforcement: Directs the FAA to work with DoD and DHS to develop, test and deploy counter-UAS systems to mitigate threats from rogue UAS interfering with safe airport operations.
  • Package Delivery: Requires the FAA to issue a final rule authorizing the carriage of property by small UAS for compensation or hire within 1 year.
  • Collegiate Training Initiative: Establishes a Collegiate Training Initiative program to make agreements with institutions of higher education for preparing students for careers involving UAS.
  • Improvements to the Part 107 Waiver Process: Directs the FAA to: (1) publish a representative sampling of safety justifications offered by Part 107 waiver/authorization applicants for each regulation waived or class of airspace authorized and; (2) update the online waiver/authorization portal to provide real time confirmation that an application has been filed and allow applicants to review the status of the application.
  • Study the Role of Federal, State and Local Governments in Regulating UAS: Directs the U.S. Comptroller General to conduct a study and submit a report to Congress on the relative roles of the Federal Government and State and local governments in regulating the national airspace system, including UAS operations.
  • New Criminal Offenses for Unsafe UAS Operations: Establishes criminal penalties for UAS operators that knowingly and willfully interfere with manned aircraft operations or fly within a runway exclusion zone of an airport.

 

 

 

Part 107, the rule broadly authorizing commercial UAS (drone) operations, was an important step forward for the commercial UAS industry.  However, Part 107 limited operations in important ways.  One significant limitation surrounds flights over people.  Under current FAA regulations, flights over people other than the UAS flightcrew are prohibited.  This prohibition creates significant obstacles for commercial UAS operators, especially those that typically need to occur in more urban and suburban environments, such as media and newsgathering activities, real estate, infrastructure inspection and, someday, package delivery, will require the flexibility to operate over people. Continue Reading New FAA-Commissioned Report on Unmanned Aircraft Systems (UAS) Human Collision Hazards May Support Broader Approval for UAS Flights Over People

Germany has introduced a new “Regulation for the Operation of Unmanned Aircraft Systems” (“Drone-Regulation“). On 7 April 2017, the new Drone-Regulation entered into force adapting national legislation to the risk-based approach of the European Union and setting the way for innovative technologies. However, the new rules also contain identification and qualification obligations as well as strict authorisation requirements for specific operations of Unmanned Aircraft Systems (“UAS”).

Some aspects of Germany’s new UAS regulations parallel the Federal Aviation Administration’s (“FAA”) Small UAS Rule (Part 107) that went into effect in the United States last August. Similar to the rules adopted by the FAA, Germany’s new UAS regulations place general restrictions on operating UAS beyond visual line of sight (“BVLOS”) and limit operations over people. Notably, however, Germany’s new regulations also provide a pathway for authorizing more advanced commercial UAS operations that go beyond the scope of the regulations in circumstances where it is safe to do so. This is similar to the waiver process adopted by the FAA in Part 107 for authorizing operations beyond the scope of the rule. Continue Reading Sky full of drones – Germany opens up for new drone opportunities as it introduces its new UAS Regulation

White House Open to Stakeholder Meetings about Drone Operations Over People

In a major new development, the FAA has just sent to the White House Office of Information and Regulatory Affairs (OIRA) the proposed rulemaking for performance-based standards and means-of-compliance for the operation of small unmanned aircraft systems (UAS, or so-called “drones”) over unsheltered people not directly participating in the operation.

This is big news and an important step in moving drone policymaking forward. As most of you likely know, the current Part 107, which went into effect in August, does not allow for flights over unsheltered people not directly participating in the operation – in other words, anyone other than your remote pilot, visual observer, or anyone else essential to the flight operation. Continue Reading Big News: Proposed Small UAS Rule for Flights Over People at White House for Review

On September 21, Hogan Lovells’ Unmanned Aircraft Systems lawyers Lisa Ellman, Patrick Rizzi, Matthew Clark, and Elizabeth Meer presented a webinar on Drones on Campus: Navigating the FAA’s New Small UAS Rule.

Colleges and universities across the country are finding new and innovative ways to use unmanned aircraft or “drones.” To name just a few, higher education institutions are using drones to support research and learning in areas like precision agriculture, wildlife habitat monitoring, and aerial surveying and mapping. They are using drones to film football practices, inspect their infrastructure, and shoot promo marketing videos. Continue Reading Drones on Campus: Navigating the FAA’s New Small UAS Rule

The commercial UAS industry in the U.S. took a giant leap forward yesterday, as DOT and FAA released its Final Rule for the Operation and Certification of Small UAS (Part 107). At 624 pages long, there is certainly a lot to digest and we will be following up with more analysis of Part 107 throughout this week and next. For the time being, we wanted to provide you with a high-level overview of Part 107 and to identify a few areas where the FAA surprised us (mostly in a good way).

Timeline for Implementation

Part 107 will become effective 60 days after it is officially published in the Federal Register in the next 5-7 days making August the next milestone date for our industry.

Operator Certification

As a threshold matter, we would note that the FAA determined that calling the individual operating the UAS the “operator” might be confusing, so the person operating the UAS will now be referred to as the “Remote Pilot.” The Remote Pilot Certificate will replace current requirements to hold a manned pilot’s license, which is one of the biggest hurdles to operating UAS commercially under a Section 333 Exemption. Continue Reading Huge News: FAA/DOT Release Small UAS Rule

Colleges and universities across the country are finding new and innovative ways to use drones in the classroom.  To name just a few, institutions of higher education are using drones to support research and learning in areas like precision agriculture, wildlife habitat monitoring, and aerial surveying and mapping.

While speaking at the AUVSI annual conference in New Orleans this morning, FAA Administrator Michael Huerta announced the release of a new Legal Interpretation that will expand the scope of permissible UAS operations by students and educational institutions.  The FAA’s principal conclusions are:

  1. A person may operate an unmanned aircraft under the carve-out for hobbyist operators in Section 336 of the FAA Modernization and Reform Act of 2012 (FMRA) at educational institutions and community-sponsored events provided that the person is (a) not compensated or (b) any compensation received is neither directly nor incidentally related to that person’s operation of the aircraft at such events.
  2. A student may conduct model aircraft operations in accordance with section 336 of the FMRA in furtherance of his or her aviation-related education at an accredited educational institution.
  3. Faculty teaching aviation-related courses at accredited educational institutions may assist students who are operating a model aircraft under section 336 and in connection with a course that requires such operations, provided that the student maintains operational control of the model aircraft such that the faculty member’s manipulation of the model aircraft’s controls is incidental and secondary to the student’s.

The FAA cautioned that a faculty member engaging in the operation of an unmanned aircraft, as part of professional duties for which he or she is paid, would not be engaging in a hobby or recreational activity.  Similarly, a student operating UAS for research on behalf of a faculty member is associated with the faculty member’s professional duties and compensation and, thus, is not hobby or recreational use by the student pursuant to section 336.  Faculty and students in these situations would need to seek and obtain authorization from the FAA.

The FAA also concluded, however, that limited instructor involvement in student operation of UAS as part of coursework does not automatically make the flight non-hobbyist or commercial in nature. This would include courses at accredited institutions where the operation of the unmanned aircraft is not the primary purpose of the course (for example, using drones as part of an agricultural science class).  This exception for limited instructor involvement would not extend to classroom courses where the primary purpose of the class is UAS flight instruction.

While the new Legal Interpretation won’t eliminate the need to seek and obtain authorization from the FAA for all UAS flight activities at educational institutions, the announcement is welcome news and a step in the right direction for expanding drone use in academia.

Energy companies that operate critical infrastructure face regulatory challenges on a daily basis as they strive to provide effective and efficient service safely. Congress may make some of these regulatory challenges less burdensome by lifting restrictions on the use of drones to monitor their assets. UAVs for Energy Infrastructure Act (S.2684), sponsored by Senator Jim Inhofe and introduced on March 15, 2016, would enable critical infrastructure operators to use unmanned aerial vehicles (UAVs or so-called drones) to comply with existing federal regulations, as well as to respond to an emergency, natural disaster or severe weather event. Specifically, the bill would allow the use of a drone to conduct any activity already allowed to be accomplished with manned aircraft. Senator Inhofe plans to include the bill in the FAA authorization legislation. Continue Reading Taking to the Air: Using Drones to Ensure Regulatory Compliance for Natural Gas and Oil Pipelines and Other Critical Infrastructure Owners and Operators

The FAA’s Office of Chief Counsel yesterday released new guidance for state and local government authorities as they increasingly seek to regulate unmanned aircraft systems (UAS), or drones. The FAA’s State and Local Regulation of UAS Fact Sheet provides basic information about the federal regulatory framework for use by states and localities when considering proposing legislation or ordinances that would affect the use of UAS.

In response to a flurry of local and state UAS policy proposals, the FAA clarified that “A consistent regulatory system for aircraft and use of airspace has the broader effect of ensuring the highest level of safety for all aviation operations. To ensure the maintenance of a safe and sound air transportation system and of navigable airspace free from inconsistent restrictions, FAA has regulatory authority over matters pertaining to aviation safety.” Continue Reading FAA Warns State and Local Governments on Impermissible Regulation of UAS