Key Issues And Insights For Transportation And Energy Companies Regarding Commercial Drone Operations

On June 21, 2016, the Federal Aviation Administration ("FAA") released Part 107 of the Federal Aviation Regulations that, for the first time, provide standards for general operation and certification of drones or small unmanned aircraft systems ("sUAS"). The new Part 107 was published in the Federal Register on June 28, 20161 and is effective on August 29, 2016. It is significantly more accommodating of the commercial considerations associated with sUAS operations than previously indicated in the FAA's notice of proposed rulemaking ("NPRM") or previously allowed under the FAA's Section 333 Exemption regime.

One of the most significant improvements is that operations under Part 107 can cover a broader geographic area in one flight. Although operations must remain within the controlling pilot's visual line of sight ("VLOS"), control of the aircraft can be transferred between pilots mid-flight, and a controlling pilot can operate from a moving vehicle or vessel in sparsely populated areas. Additionally, operations can be conducted up to 400 feet above ground level ("AGL"), and higher if operating within 400 feet of a structure.

Although some remaining limitations inhibit maximum commercial operations, the FAA contemplates a system to allow waivers from those limitations. Two of the key limitations are: (i) limiting operations to "fair weather flying" by requiring three miles of visibility and significant clearance from clouds, both laterally and horizontally; and (ii) no night operations. However, an operator can seek a waiver of these rules by demonstrating that the contemplated operations can be conducted safely under the terms of the waiver. Also, the FAA has indicated that it intends to relax the new rules further with additional safety improvements and demonstrations.

This Commentary analyzes these key issues and provides insights into how they will affect commercial operations, particularly in the transportation and energy industries. Additionally, it explores the impact of Part 107 on existing operations under Section 333 Exemptions. Finally, it lists several additional noteworthy Part 107 requirements.

The Basics

General Requirements for Operation. Part 107 contemplates three potential types of personnel, or crewmembers, involved in sUAS operations: a Remote Pilot in Command ("Remote Pilot"), a person manipulating the flight controls, and a visual observer ("Observer").2 All sUAS flights must have a designated Remote Pilot.3 The Remote Pilot is responsible for a number of aspects of the sUAS flight and operation. However, the Remote Pilot does not have to be the person manipulating the flight controls (although often he or she will be) and can instead supervise that individual. Each Remote Pilot may conduct or supervise only one sUAS operation at a time. The Observer is a separate individual who can assist the Remote Pilot in surveying the unmanned aircraft and the surrounding environment.4 The use of an Observer is optional, and Observer responsibilities may be handed off between multiple people. The Observer and Remote Pilot are allowed to communicate by means of a cell phone or radio transmitter.5 This allows the Observer to be geographically distant from the Remote Pilot and flight controller.

The Remote Pilot, the person manipulating the flight controls, and the Observer must be able to see the unmanned aircraft with unaided vision throughout the duration of the flight (maintain VLOS). Although all crewmembers must have the capability to see the sUAS at all times,6 only the Observer or the Remote Pilot and the flight controller are actually required to: (i) determine the unmanned aircraft's location, attitude, altitude, and direction of flight; (ii) observe the airspace for other air traffic; and (iii) determine that the unmanned aircraft does not endanger the life or property of another.7 In other words, if an Observer can see the sUAS as required, then the Remote Pilot and person manipulating the flight controls are required merely to keep the unmanned aircraft within their general field of view. Since the Observer may exercise the VLOS capability instead of the Remote Pilot and flight controller, the pilot can use First Person Viewer technology during flight to better conduct a particular surveillance activity. Such a device allows the sUAS operator to observe the flight virtually from the perspective of the unmanned aircraft.

Licensing Requirements. Under the Final Rule, Remote Pilots must possess a Remote Pilot certificate. A valid pilot license will no longer be sufficient. Observers and the person at the controls, if not the Remote Pilot, are not required to possess a pilot certificate of any kind.

In order to receive a Remote Pilot certificate, an applicant with no prior pilot certificate must take an initial aeronautical knowledge test designed for sUAS operations. This test must be taken at an FAA-approved testing center, and the applicant's identity will be verified at that time. Upon receiving a passing score, the applicant will apply for the certificate online and will be assessed by the Transportation Security Administration ("TSA") as a possible security risk. The applicant will also certify that he does not have a physical or medical condition that would interfere with the safe operation of the sUAS. The FAA anticipates that the TSA vetting will be completed within 10 days, although there could be delays depending on the number of applicants. Once TSA approval has been received, the FAA will issue a temporary pilot certificate that is valid for 120 days. This will allow sufficient time for processing the official certificate. The certificate does not expire but requires recurrent training every 24 months to remain active.

Pilots (other than student pilots) with a current flight review have the option of either taking the initial knowledge test or taking an online training program. If taking the knowledge test, the pilot follows the same steps as outlined above, but the 10-day TSA waiting period will not apply since the individual has already been vetted by TSA. If choosing to take only the training, the pilot must submit the application for a Remote Pilot certificate to one of several individuals authorized by the FAA. The point of this requirement is to confirm that the individual is who he says and to verify that the applicant meets the applicable flight review requirements. Again, TSA vetting will not be required since the pilot has already been evaluated. As is the case with individuals with no previous pilot's license, there is a recurrent training requirement every 24 months for the Remote Pilot certificate to remain valid.

At present, there appears to be a glitch in the regulation that, unless corrected, will affect the practical effective date of the Final Rule. Unless the FAA determines otherwise, an applicant will not be able to take the required knowledge test or submit an application until the Final Rule takes effect. Thus, absent a correction, there will necessarily be some lag time between the Final Rule's August 29 effective date and the...