The FAA’s Drone Drill: An Introduction

If you want to use your drone for your business, you'll need to know what to ask for and how to ask for it.

Let's be honest: you want a drone, just like the rest of us. (True fact: We here in the CommLawBlog bunker have frequently fantasized about flying our own - appropriately branded - drone straight to the FCC to deliver filings from the 18th floor rooftop patio here on the CommLawBlog Tower. We are not optimistic, however. We'll get to that in a minute.) But, also like the rest of us, you'd probably like to use your drone for something more than purely recreational purposes, and you've heard that the FAA expects you to jump through a number of hoops before you can do so.

What are those hoops and how do you jump through them? Read on.

First, though, an editorial observation. The FAA's current insistence on imposing stringent regulations on "commercial" drone use (as opposed to purely recreational, or hobbyist, drone use) is of dubious legality, as my colleague Kevin Goldberg noted last year. While Congress has implicitly authorized the FAA to impose rules on nonrecreational drone use, the FAA has not to date adopted any such rules. It did, at long last, launch a rulemaking proceeding last February looking to formally codify various policy statements and internal guidelines that it had issued over the years. But until that proceeding results in properly adopted rules, the interim enforceability of the FAA's earlier policy statements and guidelines could be challenged.

And, indeed, they were challenged, successfully, before an NTSB administrative law judge in 2013. That decision was reversed by the full NTSB on relatively narrow grounds not relating to the FAA's "commercial v. recreational" distinction, and the case was eventually settled, with the drone operator admitting to no violations of any rules. (For a collection of documents related to the case, including briefs setting out in detail arguments relative to the validity of the FAA's interim policies, see this site.)

But for now, the FAA is sticking to its guns. And while Congress has directed the FAA to get its new rules in place pronto (the initial target date specified by Congress was September, 2015), all signs are pointing to considerable delay on that front. So let's take a look at what you would need to do to get the FAA's blessing, today, to use your drone for commercial purposes.

First up, what kind of drone will you need? While we like the word "drone," in FAA-speak they are referred to as "unmanned aircraft systems" or UAS. You'd need a "small UAS," which is an unmanned aircraft weighing less than 55 pounds. (For those keen on drone facts, there is also a "micro UAS" class, which the FAA proposes to mean aircraft of up to 4.4 lbs., made of fragile materials that can break easily and not cause harm upon collision, and which cannot exceed an airspeed of 30 knots.)

As long as you won't be taking to the skies within certain distances from certain airports, in otherwise restricted airspace or in certain densely populated areas, you'll need three things to operate your drone commercially:

• An exemption, issued under a process pursuant to Section 333 of the FAA Modernization and Reform Act of 2012, which can obviate the need for a separate FAA-issued Airworthiness Certificate and will come with a limited Certificate of Waiver or Authorization (COA);
• An authorized pilot (i.e., someone with an FAA-issued Airman Certificate); and
• A properly registered UAS.

Section 333 Exemption, Airworthiness Certificate and COA. Historically, commercial drone operators had to apply for, and obtain, two different certificates from the FAA: an Airworthiness Certificate and a COA. The FAA's new and improved 333 Exemption process, a temporary process put in place until the agency issues permanent rules, expedites things by allowing would-be drone operators to obtain both certificates through a single process. The process essentially requires filing paperwork to show that a UAS is "airworthy" and that its proposed operation will otherwise satisfy the FAA's temporary rules.

With respect to airworthiness, note that while 333 Exemptions are issued to operators and not manufacturers, showing that the particular drone model already has been determined to be "airworthy" will help get that authority faster. (Alternatively, a drone operator may still separately seek a formal "airworthiness certification" in one of three categories, but that could take a year to process.)

On the operational side, an applicant for a 333 Exemption must describe in some detail the nature of its proposed operations, including the nature of the equipment to be used, the manner in which and the area in which it will be used, and the RF spectrum on which the drone controls and any related on-board gear (e.g., cameras) will operate consistently with FCC requirements. It must also include the qualifications of the Pilot in Command (PIC) who will be responsible for the drone's operation. You can find a more detailed listing of the requirements for an exemption, as well as the process for getting your exemption petition filed, here.

A successful 333 Exemption petition will result in the issuance of a "blanket" COA that will permit operation of the drone essentially nationwide (with some exceptions). Blanket COAs generally limit drone operation to no higher than 200 feet above ground level during daylight only, with drone weight of less than 55 pounds. Operation pursuant to a blanket COA is prohibited within certain distances of airports/heliports, otherwise restricted airspace and certain densely populated areas.

333 Exemptions also require that the PIC controlling the drone maintain visual line of site (VLOS) of the drone at all times, unaided by any device other than corrective lenses. No, you can't operate a drone from a moving vehicle, so you won't be able to maintain VLOS by following your drone around in a car. And no drone-flying over (or within 500 feet of) "nonparticipating" persons unless those persons (a) are protected by adequate barriers or structures or (b) have given their consent and the operation doesn't constitute an undue hazard to them.

(Pretty much any of those conditions would put the kibosh on the drone filing service we here at CommLawBlog were contemplating. At 18 stories, our building is just around the 200 foot limit, so the roof-top is probably not a good launch point. While the FCC is less than three miles away from our bunker as the drone flies (according to Google, at least), and while we can make out the Portals from our roof-top patio on a clear day, it's doubtful that we could maintain the necessary VLOS. Also, our anticipated flight path would pass over sidewalks, streets, a river full of boaters and a Mall full of tourists, all of whom would be "nonparticipating" as far as the FAA is concerned. And let's not forget that we'd have to fly through a Reagan National Airport approach path and right past the White House, i.e., areas where the Feds strongly discourage any drone use.)

If you want to fly in any of the no-fly areas not covered by the blanket COA, or if you want to operate beyond any of the other parameters specified in the blanket COA, you'll have to file separately for a stand-alone COA - but you'll still have to get a 333 Exemption first.

How long does it take to get a 333 Exemption? The FAA has sped up its 333 Exemption process significantly since first issuing them in 2014, and now has issued more than a thousand 333 Exemptions. It appears that, in recent months, the process has taken four to six months from initial petition to issuance of the COA. (You can find copies of all of those at this FAA website page.)

Authorized Pilot. While Congress has afforded the FAA some flexibility in the issuance of 333 Exemptions and COAs, it has not done so with regard to airman certification standards. As a result, individuals operating commercial drones in the National Airspace System must have an FAA airman certificate (though the FAA relaxed initial requirements and now allows those with sport or recreation pilot certificates to fly UAS). We understand that some available services provide qualified pilots for short-term hires.

A Registered Drone. In addition to the formal 333 Exemption, operators must also separately register their drone(s) with the FAA. Registration is accomplished by submission to the FAA of an original (no computer generated copies, please) AC Form 8050-1 and a plethora of other information. More paperwork, to be sure, but kudos to the FAA for charging only $5 for this process, a bargain compared to FCC filing fees which can run in the hundreds of dollars.

Bear in mind that the 333 Exemption process is, in theory, in place only temporarily, until the FAA finalizes its anticipated UAS regs. So will those regs make drone authorization and operation any easier?

At this point, many are doubtful. While the proposed rules would eliminate the airworthiness certification requirements and make obtaining an airman's certificate for UAS operations easier, they also include a number of the limitations on commercial drone use currently in place. These include prohibitions on: flying at night; flying over people not associated with your project; and flying where the pilot lacks VLOS of the drone. This limits much of what the burgeoning industry wants to do, and what is being done in other countries, i.e., delivering not just Amazon packages, but prescription medicines and medical equipment to rural areas; conducting search and rescue missions and sending drones out to obtain a better understand the state of a wildfire; inspecting pipelines and critical infrastructure like railroad lines and cellular towers; and precision agriculture.

Key industry players are pushing the FAA to allow for highly automated, non-visual line of sight operations (after all, our Defense Department is not shy of using these technologies overseas), but at this point the FAA does not appear open to the idea. So plans for a "drone superhighway" (Amazon has proposed low altitude - i.e. 200-400 feet - "transit pathways," with a "no fly zone" in 400-500 feet AGL to provide a protective space between drones and aircraft) and a drone air traffic control system (NASA is busy at work on this) are a bit premature. The FAA will have to be confident that drones operating in the superhighway could detect, communicate with, and avoid other drones, and generally be able to "see and avoid" and otherwise retain control while being operated from a distance. This will take time.

For now, then, if you want to use your drone for your business - such as newsgathering - it would probably be a good idea to get a 333 Exemption petition on file. Despite Congress's direction that the FAA's new rules be in place this month, a number of observers are estimating that those rules won't be ready until late 2016 or even 2017. If you apply for a 333 Exemption now, you'd be likely to be in operation by early 2016. Let us know if we can help in the process.