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Global Media and Communications Watch The International Legal Blog for the Tech, Media and Telecoms Industry
Posted in Drones E. Tazewell EllettLisa Ellman

US: A Historic Day for Commercial Drones: Part 107 Takes Flight

Until this week, any company looking to fly drones to enhance its business operations – whether for disaster response, infrastructure inspection, agriculture, newsgathering, filmmaking, aerial photography, or anything else – had to apply for a special exemption from the FAA. That “Section 333 Exemption” approval process was burdensome and costly, and constrained true expansion within the drone industry.

That has changed effective August 29th. We have reached a milestone for the industry, as the final rule for the operation and certification of small UAS (Part 107) has officially gone into effect – for the first time, broadly authorizing commercial small drone operations in the United States.

We have reviewed many of the conditions and limitations imposed by the rule in greater detail elsewhere. The FAA has recently released additional guidance on studying for the certificate test, applying for waivers, and how to operate in controlled airspace. Over the last few months, in response to our webinar and more generally, we have received a flood of questions from clients about what this means for them and their business. To commemorate the effective date of Part 107, we have come up with our own “Top 10 List.”

Top 10 Received Questions on Part 107:

1. What do I have to do to receive a Remote Pilot Certificate, and how difficult will it be to obtain one?

If you do not already have a manned aviation pilot’s license, you will need to take an aeronautical knowledge exam. The test has 60 multiple choice questions and you need to score a 70% or better to pass. You can register to take the exam at one of the FAA’s 700+ Testing Centers by calling CATS (Computer Assisted Testing Service) at 1-800-947-4228. You will also need to submit an application electronically using the FAA’s IACRA system and pass a TSA background check.

2. How can I fly near airports/heliports?

Under Part 107 you are prohibited from interfering with airport/heliport operations and you need to yield the right-of-way to other aircraft, but there is no required set-back from airports and heliports like there was under the Section 333 Exemption/Blanket-COA framework. Keep in mind, however, that you will need air traffic control (ATC) approval to operate in Class, B, C, D, and E airspace (Hint: airspace below 400-feet AGL around most non-towered airports/heliports is still Class G airspace, which does not require prior ATC approval to fly in). Hobbyists still need to notify the airport and ATC (if there is a tower) when flying within 5 miles of an airport/heliport.

3. How difficult will it be to get a Part 107 waiver and how long will it take?

We will have to wait and see. So far the only guidance we have from the FAA on timing is that waiver applications should be submitted at least 90 days before the intended flight operation. The key to the waiver process is making the safety case that you can fly with an equivalent level of safety to operations conducted under Part 107. Ultimately, the length of the review process will probably vary depending on the complexity of what you are asking to do, but the whole drone industry and drone operators are hoping that the waiver process will be more streamlined and efficient than the Section 333 Exemption process.

4. What will be required for a waiver authorizing UAS operations beyond visual-line-of-sight of the Remote Pilot?

Part 107 requires UAS to be operated within the visual line of sight (VLOS) of the Remote Pilot because the Remote Pilot needs to be able to see-and-avoid other aircraft and obstacles. If you need operations beyond VLOS, you will need to demonstrate to the FAA that the UAS is equipped with technology that can safely satisfy the see-and-avoid requirement of Part 107.

5. What are the restrictions on flying over people?

You cannot fly directly over unsheltered people that are not “directly participating in the operation of the UAS.” People directly participating in the operation of the UAS include the Remote Pilot, Visual Observer(s) (if used), and any other personnel necessary for the safe operation of the UAS. An important difference from the Section 333 Exemption regime is that under Part 107, “participants” only include personnel involved with the flight itself.  You can request a waiver under Part 107 to operate over unsheltered people who are not involved in the operation of the UAS, but you will need to demonstrate to the FAA that you can do so safely.

6. Do I need to get permission to fly over someone else’s private property?

Unlike the Section 333 Exemption/Blanket-COA regime, Part 107 does not include a requirement to obtain permission to fly over someone else’s private property. That being said, it is important to remember that there is a patchwork of state and local laws relating to, among other things, trespass, nuisance, and privacy that might impact where you can fly. There are UAS privacy best practices that the industry adopted which may be helpful in this regard.

7. How can I stop someone from conducting unauthorized or unsafe UAS operations over my property?

Now that this amazing technology with such huge potential has been developed, everyone seems to be asking if they can shoot drones out of the sky. Don’t do that. There are a lot of interesting legal theories surrounding this issue, but the short answer is that that kind of action will just create legal headaches for you. The best thing to do is document the unauthorized or unsafe flight and contact local law enforcement. Keep in mind that you might have to educate responding officers regarding the circumstances and the applicable legal standards. Make sure you understand what the regulatory requirements are for flying in the airspace around your property, and be prepared to discuss those requirements with any responding officer. Please let us know if you would like to know more about that process.

8. Can the FAA regulate indoor UAS flights?

No, the FAA’s jurisdiction covers navigable airspace, which does not include airspace inside of an enclosed structure that it would be impossible for the UAS to escape from. For example, the FAA would not have jurisdiction over a fully enclosed outdoor-netted cage so long as it would be impossible for the UAS to escape the cage.

9. Does Part 107 change anything for hobbyists/recreational users?

No. If you satisfy the existing requirements for model aircraft in Section 336 of the FAA Modernization and Reform Act of 2012 (below 400-feet AGL, within VLOS, not over people etc.), you can keep doing everything you’ve been doing. However, that does not mean you cannot take advantage of the benefits of Part 107. Hobbyists, like public aircraft operators, can voluntarily choose to operate under and comply with Part 107.

10. Is my Section 333 Exemption good for anything anymore?

If you already have a Section 333 Exemption, you may continue to operate under it or you can elect to operate under Part 107. Whether it makes sense to continue operating under your Section 333 Exemption will depend on what you want to do. You will obviously want to operate under the regime that provides the most operational flexibility. For most operators, Part 107 will provide more flexibility than the conditions and limitations in the Exemption.

An example of where it might make sense to continue operating under a Section 333 Exemption/COA would be closed-set filming activities involving flights over people. If you have a Section 333 Exemption that authorizes UAS operations for the purpose of closed-set filming, you could avoid the need for a separate waiver, which would be required if you wanted to conduct the same operation under Part 107. Keep in mind though that you would still need to comply with the other Conditions and Limitations in your Section 333 Exemption/COA if you choose to go this route. We discuss this issue a bit more in our blog post here.