To Fly or Not to Fly? The Current Landscape for Civilian Unmanned Aircraft

June 15, 2015 Published Work
TerraLex Connections

Introduction

Unmanned aerial vehicles ("UAVs"), also referred to as unmanned aircraft systems ("UASs") or drones, have been operating in the United States and abroad for over two decades. Previously, however, UAVs were relegated to limited, governmental uses—principally for military and federal law enforcement purposes. For example, as well-documented, the U.S. military has used drones for years to deliver remote strikes overseas, U.S. Customs and Border Protection has used them to police the border, the U.S. Coast Guard used them in search and rescue operations, and the CIA used them to gather covert intelligence.

Today, significant advancements in technology accompanied by substantial decreases in cost have made UAVs cheaper to produce and easier to operate. Now, for example, anyone can buy a UAV for under $300 that is capable of streaming high-definition video and high-resolution photographs to a smartphone or tablet from an altitude of over 600 feet, while flying along at speeds of over 25 miles per hour. This increased accessibility has, in turn, stirred great interest in the potential uses for this impressive and low-cost technology. As recounted in numerous media reports, UAVs can be used to deliver packages, film movies, take aerial photographs and videos over land and sea, survey land and crops, respond to natural disasters and local emergencies, and monitor critical infrastructure such as bridges, power lines, and dams. However, on the legal front, UAV technology is an outcast. It is a poor fit for current Federal Aviation Administration ("FAA") regulations, and yet the FAA nonetheless uses its regulatory authority to restrict and police the use of unmanned aircraft. The consequence has been legal uncertainty and growing frustration within the emerging domestic UAV industry.

In an attempt to quell the frustration, Congress passed the FAA Modernization and Reform Act of 2012 (the "Reform Act"), mandating that the FAA quickly and safely integrate UAVs into the U.S. National Airspace System ("NAS").1 The FAA has been working to develop a regulatory framework for UAV operations, including a certification and approval process addressing design, safety, and training standards.2

On February 15, 2015, the FAA released its long-awaited initial proposed rules governing small UAVs. Among other requirements, these rules would allow UAVs weighing less than 55 pounds to fly in visual line of sight, at an altitude of up to 500 feet, and at a speed of up to 100 miles per hour.3 The proposed rules are subject to public comment and have been criticized,4 and it may be eighteen months or more before they are finalized, likely in a revised form. In the meantime, the FAA's current unmanned aircraft rules remain in place.

Under the current rules, the FAA has recognized three categories of permissible UAV operations: (1) recreational (or "model aircraft") flights; (2) public use by national, state, and local government agencies, including public universities; and (3) commercial operations as limited under existing airworthiness certificate requirements5 or the new Special Rules for Certain Unmanned Aircraft Systems, Section 333 of the Reform Act (a "Section 333 exemption").6 This article discusses the law currently governing each category, with particular emphasis on the Section 333 exemption process.7

Model Aircraft

Currently, hobby or recreational uses of UAVs are governed only by voluntary guidelines under FAA Advisory Circular 91-57.8 These guidelines date back to 1981, and contain four substantive limitations: (1) the operator must select a site away from areas that are populated and sensitive to noise; (2) the user cannot operate the model aircraft in the presence of spectators until it has been successfully flight tested and proven airworthy; (3) the aircraft cannot be flown higher than 400 feet above ground level and, when flying the aircraft within three miles of an airport, the operator must notify the relevant traffic control authorities; and (4) the operator must give right of way to, and avoid flying in the proximity of, manned aircraft, and use observers if possible.9

Public Use

Public unmanned aircraft operations conducted by national, state, and local government agencies and other public agencies, such as public schools and universities can include, to name but a few examples, academic and scientific research, law enforcement, firefighting, border patrol, search and rescue, disaster relief, military training, and other government operations.10 To fly a UAV for such purposes, the public entity must obtain from the FAA a Certificate of Authorization or Waiver (a "COA"), which authorizes use of the UAV "for a specific purpose, in a designated area."11 The objective of this requirement is to "ensure an equivalent level of safety to manned aircraft operations," usually entailing "several safety mitigations including, but not limited to, requiring that the [UAV] not operate in a congested area and is observed either by someone in a manned aircraft or someone on the ground."12

Accordingly, in an application for a COA, a public entity must detail its proposed operation, such as the location, class of airspace it will operate in, whether the operations will take place at night, and the altitude and ground speed at which the UAV will travel.13 It must also describe the performance details of the UAV itself, including its weight, its operating speeds and altitudes, its safety features, and other avionics or equipment, and identify the flight crew qualifications and certain safety measures, such as the procedures to be followed if the UAV loses communication with its pilot.14

Commercial Operations & Section 333

By contrast, the FAA issued and is enforcing a near-complete moratorium on UAV operations for revenue-producing commercial purposes until its final rules are in place. To that end, the FAA has issued cease-and-desist letters to and imposed civil penalties against unauthorized commercial operators of UAVs.

This ban initially caused many manufacturers and operators to choose to test and develop their UAVs outside the U.S.15 Google and Amazon, for example, test their delivery-drone prototypes in Australia and Canada, respectively.16 And they are not alone. Seattle-based Applewhite Aero, for example, "struggled to get permission from the [FAA] just to fly its drones, which are designed for crop monitoring," and had plans to move its proposed operations to Canada.17 And DHL has already been authorized to deliver parcels to customers in Germany using unmanned aircraft.18 This growing trend of domestic innovators going abroad created a nearly unanimous perception that the delay in clear regulation and the interim ban on commercial operations were placing the domestic industry at a critical disadvantage from which it may never recover.19

As a stop-gap, the FAA recently began to leverage its statutory authority under Section 333 of the Reform Act to permit vetted UAV operators to enter the commercial market and conduct their operations before its final rules are in place.

Background. Section 333 grants the Secretary of Transportation the authority to determine, on a case-by-case basis, whether a proposed commercial UAV operation may be exempted from the FAA's otherwise applicable airworthiness certification requirements. Generally, an aircraft operator must apply for an Airworthiness Certificate before it can fly any aircraft. However, many of the detailed requirements are inapplicable and burdensome to unmanned aircraft operations. For example, certification typically requires that all aircraft display their registration numbers and categories near the entrance to their cabin, cockpit, or pilot station.20 Small UAVs have no such structures. Certification can also require that a current approved Airplane or Rotorcraft Flight Manual be available on the aircraft at all times.21 Most small UAVs cannot carry such manuals, and, even if they did, no one would be aboard to read them. Other certification requirements address minimum flight altitudes,22 maintenance requirements,23 and record-keeping,24 having little, if any, applicability to unmanned aircraft technology.

A Section 333 exemption allows UAV flights to proceed without meeting such inapplicable or burdensome requirements. Specifically, it allows the FAA to determine:

  1. If certain UAVs as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security, and
  2. Whether a certificate of waiver, certificate of authorization, or airworthiness certification under Section 44704 of title 49, United States Code, is required for the operation of unmanned aircraft systems identified [above].25

Reform Act § 333.

Section 333 Petition. Since the FAA recently implemented its summary grant process for Section 333 petitions, there are now two methods for obtaining a Section 333 exemption. The first, and most efficient, method leverages the two hundred and forty-eight Section 333 petitions that have already been granted by the FAA. Under this approach, while the FAA still reviews each petition individually, it will issue an expedited summary grant, without conducting a detailed analysis or posting the petition in the Federal Register for public comment, when it finds it has already granted a previous exemption similar to the new request.26 The FAA expects that most petitions for film and television production and aerial data collection will be handled through the summary grant process.27 For more unique requests outside of these categories, the FAA will use the pre-existing approach, publishing the petition in the Federal Register for public comment and conducting a detailed analysis.28

Regardless of which approach applies to a particular proposed commercial operation, all Section 333 petitions must still provide the FAA with certain detailed information regarding the UAV in question, the operation of that UAV, and the pilot in command and crew of the UAV.

With regard to the UAV itself, an applicant must describe the design and operational features of the UAV. 29 The petition should also describe all procedures the applicant would implement (such as pre-flight inspection, maintenance, and repairs) to ensure that the UAV is maintained in a safe condition for flight. The petition should also include information regarding the radio frequency spectrum used for control of the UAV and whether it complies with Federal Communications Commission or other agency requirements.

The petitioner should next describe the intended UAV operation and how it will provide a level of safety at least equivalent to that provided by the regulations from which the operator seeks to be exempted. Here, the FAA is looking for clearly defined operational boundaries and procedures that will ensure safe operations. Specifically, the operator should describe operational details such as maximum speed and altitude, minimum flight visibility, and distance from potential hazards such as populated areas.30 There must also be discussion of whether operations will be conducted near airports and how the operation will comply with the requirement that all UAV operations be conducted within visual line of sight limitations.

Finally, operators must describe the pilot's qualifications, including information such as certifications, relevant training, hours of flight experience, and total flight time with the particular UAV.31 If other crewmembers will be used, such as visual observers, information about their operational role is also required.

Petitions Granted. As the number of successful Section 333 petitions increases, a picture is beginning to emerge of the kinds of operations that are most likely to gain approval from the FAA. For example, some of the first petitions approved by the FAA were submitted by six aerial photo and video production companies, who wished to fly UAVs in connection with motion picture and television productions. In their successful petitions, among other things, these operators noted that their UAVs would be operated in a "sterile area," would weigh less than 55 pounds, would not be flown at a ground speed exceeding 50 knots, would not be operated at an altitude of more than 400 feet above ground level, and would be operated within the visual line of sight of the pilot in command at all times. Their pilots would also have logged 200 flight cycles and 25 hours of total time as a UAV rotorcraft pilot, at least 10 hours as a UAV pilot with a similar UAV type (single blade v. multirotor, etc.), and at least 5 hours as a UAV pilot operating the make and model of the UAV to be used.32 The FAA accepted these conditions and others, but also required the pilot to perform an inspection of the UAV before each flight, prohibited operations at night, required that a written Plan of Activities be submitted to the local Flight Standards District Offices at least three days before use, and prohibited operations in restricted airspace or within 5 nautical miles of an airport.33

Not surprisingly, safety is also paramount. In granting the photo and video production company petitions, for example, the FAA emphasized that the firms had submitted detailed UAV flight manuals with safety procedures, and had also explained the safety and environmental benefits of such technology over traditional approaches, explaining that "[t]he enhanced safety achieved using a [UAV] with specifications described by the petitioner and carrying no passengers or crew, rather than a manned aircraft of significantly greater proportions, carrying crew in addition to flammable fuel, gives the FAA good cause to find that the [UAV] operation enabled by this exemption is in the public interest."34

Relatedly, the geographical area of proposed operations is critical. Indeed, many successful petitions have been for operations in remote areas, such as the Alaskan wilderness, remote oil rigs in the Gulf of Mexico, rural farmland, and the Arctic Ocean, or for operations in "sterile" areas or strictly limited to private property, where the operator can restrict access and thus control and limit potential hazards. For this reason, petitions to allow private farm land surveillance or monitoring of private facilities and infrastructure, are likely to have more success in the near term than petitions for overflight of more densely populated or residential areas.

On an operational level, the majority of successful petitions, like the six aerial photo and video production petitions, have involved proposed operations with UAVs weighing less than 55 pounds, flown at a ground speed below 100 miles per hour, operated at an altitude of less than 400 feet above ground level, and operated during daylight hours within the visual line of sight of the pilot in command.35 These operations are also often required to remain a certain distance from airports and to give notice to the local Flight Standards District Offices before each operation.

Conclusion

To date, the pace of implementation of unmanned aircraft into the U.S. national airspace has generally hampered and frustrated the domestic commercial UAS industry. Although the FAA has proposed rules for the commercial operation of small UAVs, the rules will be debated and likely revised, and it may be eighteen months or longer before any such rules are finalized. In the meantime, would-be commercial UAV operators can look to the FAA's Section 333 exemption process as an increasingly viable option.


1 The FAA defines the NAS as the "common network of U.S. airspace; air navigation facilities, equipment and services, airports or landing areas; aeronautical charts, information and services; rules, regulations and procedures, technical information, and manpower and material. Included are system components shared jointly with the military." FAA Pilot/Controller Glossary, available at/content/uploads/2018/07/pcg_4-03-14.pdf.

2 Many states are also in the process of developing their own regulations to work in conjunction with federal rules. For example, the Connecticut General Assembly's Legislative Program Review and Investigations Committee is considering an array of UAV-related legislation, including amendments to the statutory definition of an "aircraft," registration requirements beyond the anticipated federal registration requirements, and new civil and criminal penalties for the use of UAVs in the commission of crimes or torts. Legislative Program Review and Investigations Committee, Connecticut General Assembly, Drone Use Regulation: Staff Findings and Proposed Recommendations (Comm. Print Dec. 11, 2014), available at http://www.cga.ct.gov/pri/docs/2014/Drone%20Use%20Regulation%20Staff%20Findings%20and%20Proposed%20Recs%20vmeeting.pdf. In response, thus far, the Connecticut General Assembly has proposed legislation adding "unmanned aerial vehicles" to the general statutes, creating a new class C felony for operating or using "any . . . unmanned aerial vehicle . . . that allows a person, when not physically present, to release mace, tear gas or any like or similar deleterious agent or to remotely control a deadly weapon," and governing the use of UAVs by law enforcement officers and other state employees. S.B. No. 971, Gen. Assemb., 2015 Reg. Sess. (2015); S.B. No. 974, Gen. Assemb., 2015 Re. Sess. (2015).

3 DOT and FAA Propose New Rules for Small Unmanned Aircraft Systems, Fed. Aviation Admin. (Feb. 15, 2015), available at https://www.faa.gov/news/press_releases/news_story.cfm?newsId=18295. These new rules would not apply to model aircraft or public use aircraft operations.

4 See, e.g., FAA Shoots Down Amazon's Drone Delivery Plans, USA Today, available at http://www.usatoday.com/story/tech/2015/02/15/amazon-cool-to-drone-rules/23473791 (last visited on Feb. 23, 2015).

5 See 14 C.F.R. § 21.191 (experimental category for purposes such as research and development and crew training); id. § 21.17(b) (special class category); id. § 21.25 (restricted category).

6 See Public Guidance for Petitions for Exemption Filed Under Section 333, Fed. Aviation Admin. (revised Sept. 25, 2014), available at http://www.faa.gov/uas/legislative_programs/section_333/how_to_file_a_petition/media/section333_public_guidance.pdf. Until recently, there was some uncertainty regarding whether UAVs were properly considered to be "aircraft" falling within the purview of the FAA's jurisdiction, or whether they were, instead, unregulated "model aircraft." The National Transportation Safety Board ("NTSB" or the "Board") answered the question in Huerta v. Pirker, holding that UAVs are, indeed, "aircraft," subject to the FAA's reach. NTSB Order No. EA-5730 (Nov. 17, 2014).

7 Companies have turned to Section 333 after finding that the airworthiness certificate process is lengthy and ill-suited for the demands of the UAV industry. For example, Amazon Logistics, Inc. was recently granted an experimental airworthiness certificate after many months of discussions with the FAA. Press Release – Amazon Gets Experimental Airworthiness Certificate, FED. AVIATION ADMIN. (Mar. 19, 2015), available at http://www.faa.gov/news/updates/?newsId=82225. However, this authorization was of little use to Amazon, since, as Paul Misener, Vice President of Global Public Policy, testified before Congress, "while the FAA was considering our applications for testing, we innovated so rapidly that the [drone] approved last week by the FAA has become obsolete. We don't test it anymore. We've moved on to more advanced designs that we already are testing abroad." Unmanned Aircraft Systems: Key Considerations Regarding Safety, Innovation, Economic Impact, and Privacy: Hearing Before the Subcomm. on Aviation Operations, Safety, and Security, 114th Cong. (2015) (statement of Paul Misener, Vice President of Global Public Policy, Amazon.com), available at http://www.commerce.senate.gov/public/?a=Files.Serve&File_id=8711c6f8-cf1b-42b9-8ebc-26971c245f7f. Amazon's Section 333 petition was ultimately granted on April 8, 2015.

8 Although these guidelines are voluntary, the FAA does retain authority to penalize recreational users who operate UAVs in a reckless or dangerous manner. See, e.g., Huerta v. Pirker, NTSB Order No. EA-5730 (Nov. 17, 2014).

9 Dep't of Transp., Fed. Aviation Admin., Advisory Circular 91-57 (June 9, 1981), available at /content/uploads/2018/07/91-57.pdf. The FAA's differential treatment of recreational and commercial unmanned aircraft operations has been a source of frustration for would-be commercial operators, who take issue with the substantially more costly and burdensome procedures and limitations they face under the current regime. Among other things, commercial operators point out that the stated justification for the requirements – namely, safety – cannot support the distinction, citing the fact that many of the recent UAV accidents and near misses publicized so widely in the news have been due to recreational users. See, e.g., Craig Whitlock, Near-Collisions Between Drones, Airliners Surge, New FAA Reports Show, Wash. Post (Nov. 26, 2014), available at http://www.washingtonpost.com/world/national-security/near-collisions-between-drones-airliners-surge-new-faa-reports-show/2014/11/26/9a8c1716-758c-11e4-bd1b-03009bd3e984_story.html; Andrew Grossman and Jack Nicas, White House Drone Crash Said to Be ‘Recreational,' WALL ST. J. (Jan. 26, 2015, 5:43 PM), http://www.wsj.com/articles/drone-crashes-on-white-house-grounds-1422286164.

10 Public Operations (Governmental), Fed. Aviation Admin. (last modified Aug. 8, 2014, 12:45 PM), http://www.faa.gov/uas/public_operations.

11 Id.

12 Id.

13 See Sample COA Application, Fed. Aviation Admin. (last updated Sept. 10, 2008), /content/uploads/2018/07/coa20sample20application20v201-1.pdf.

14 Id.

15 Many other U.S. manufacturers are finding that they not only cannot test-fly or market their unmanned aircraft in the United States – they also cannot export them to foreign markets due to U.S. export rules. See Export Basics for the UAV Industry, Wiggin and Dana LLP (June 18, 2014), http://www.wiggin.com/15273; UAVs and ITAR: Why Range Matters, Wiggin and Dana LLP (Dec. 17, 2014), http://www.wiggin.com/15501.

16 Jack Nicas, Regulation Clips Wings of U.S. Drone Makers, Wall St. J. (Oct. 5, 2014, 6:07 PM), http://www.wsj.com/articles/regulation-clips-wings-of-u-s-drone-makers-1412546849.

17 Jack Nicas, Regulation Clips Wings of U.S. Drone Makers, Wall St. J. (Oct. 5, 2014, 6:07 PM), http://www.wsj.com/articles/regulation-clips-wings-of-u-s-drone-makers-1412546849.

18 Jack Nicas, Deutsche Post DHL to Deliver Medicine via Drone, Wall St. J. (Sept. 25, 2014, 6:29 AM), http://www.wsj.com/articles/deutsche-post-dhl-to-deliver-medicine-via-drone-1411576151.

19 Associated Press, Congress Told US Lags Other Nations on Drones, Bos. Herald (Dec. 10, 2014), available at http://www.bostonherald.com/business/business_markets/2014/12/congress_told_us_lags_other_nations_on_drones.

20 14 C.F.R. § 45.23(b).

21 14 C.F.R. § 91.9(b)(2).

22 14 C.F.R. § 91.119.

23 14 C.F.R. § 91.407(a)(1).

24 14 C.F.R. §§ 91.417(a) and (b).

25 Section 333 provides statutory flexibility only relative to 49 U.S.C. § 44704 (type certificates, production certificates, airworthiness certificates, and design and production organization certificates) and § 44711 (prohibitions and exemption) for purposes of airworthiness certification. Thus, even if the Secretary grants an exemption under Section 333, the operator must still comply with all other applicable regulations concerning the operation of aircraft, like regulations regarding noise, and regulations regarding pilot in command certification under 14 C.F.R. Part 61.

26 News and Updates – FAA Summary Grants Speed UAS Exemptions, Fed. Aviation Admin. (last modified April 9, 2015), available at https://www.faa.gov/news/updates/?newsId=82485.

27 Id.

28 Id.

29 For example, the petition by Erie Insurance Group sought approval for UAV operations to conduct surveys and inspections of damages and losses after catastrophes and casualty events. As part of its petition, Erie disclosed that it would use Phantom 2 Vision Plus UAVs manufactured by Dajiang Innovation Technology Inc., and submitted the UAV's Flight and Maintenance Manual for the FAA's review. With approval, Erie may now use UAVs to access compromised structures, to access parts of properties that may be blocked by flooding or debris, and to inspect the upper portions of damaged structures. Erie also sought to use UAVs for underwriting purposes. For example, it will use UAVs to inspect the roofs of large commercial structures instead of sending personnel to do these inspections at significant risk. See Petition of Erie Insurance Group for Section 333 Exemption (Nov. 14, 2014), Regulatory Docket No. FAA-2014-0962, available at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0962-0001. Erie's petition was approved on April 8, 2015.

30 For example, the Dow Chemical Company wanted to use UAV platforms to inspect its chemical facilities. Petition of Dow Chemical Company for Section 333 Exemption (Nov. 3, 2014), Regulatory Docket No. FAA-2014-0933, available at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0933-0001. Its petition to the FAA disclosed that its UAVs (Aeryon SkyRangers) would weigh no more than 55 pounds, would not operate in restricted airspace, would be limited to the boundaries of Dow owned and operated property, would only fly in daylight, would be operated only within visual line of sight of the pilot in command, and at a maximum speed of 50 knots and an altitude of no more than 400 feet. Id. at 6-13. Dow Chemical Company's petition was approved by the FAA on April 3, 2015.

31 Along with its expedited summary process, the FAA has also recently amended its licensing requirement for UAV pilots in command. Where the previous rule required that a UAV pilot in command hold at least a private pilot certificate, the new requirement permits piloting by holders of a recreational or sport pilot certificate. These new certificates are easier to obtain and less costly than a private pilot certificate. News and Updates – FAA Summary Grants Speed UAS Exemptions, Fed. Aviation Admin. (last modified April 9, 2015), available at https://www.faa.gov/news/updates/?newsId=82485.

32 Grant of Section 333 Exemption of Aerial MOB, LLC (Sept. 25, 2014), Regulatory Docket No. FAA–2014-0353, available at http://www.faa.gov/uas/legislative_programs/section_333/media/Aerial_MOB_LLC-11066.pdf.

33 Id.

34 Petition of Aerial MOB, LLC for Section 333 Exemption, Regulatory Docket No. FAA-2014-0353, Final Agency Decision (Sept. 25, 2015), available at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0353-0005.

35 On May 6, 2015, the FAA announced a partnership with the UAV industry to explore next steps in UAV operations, beyond the types of operations the FAA proposed in its draft rule. The FAA and the industry will focus on three areas: (1) visual line-of-sight operations in urban areas; (2) extended visual line-of-sight operations in rural areas; (3) beyond visual line-of-sight in rural/isolated areas. Press Release – FAA-Industry Initiative Will Expand Small UAS Horizons, Fed. Aviation Admin. (May 6, 2015), available at https://www.faa.gov/news/press_releases/news_story.cfm?newsId=18756.

A prior version of this article was originally published with the International Association of Defense Counsel in March 2015.