By Henry H. Perritt, Jr. and Eliot O. Sprague
As the RTDNA reported last week, the FAA has released its final rule for small drones. The rule adds a new Part 107 to the Federal Aviation Regulations and conforms other regulations to the new drone material. It will be effective in late August. Part 107 provides a much-sought level of legal certainty for newsgathering drones and eliminates some of the biggest barriers under the interim system of section 333 exemptions—particularly the requirement for a traditional licensed pilot to fly a drone, the requirement for at least 24 hours of notice to the FAA, and the requirement for a separate visual observer.
The final rule tracks the February, 2015 notice of proposed rulemaking (NPRM) closely, allowing commercial flight of drones weighing less than 55 pounds below 400 feet AGL during the daytime as long as they remain within line of sight of the operator. Notably, like the NPRM and unlike the section 333 exemptions, the new Part 107 does not require a conventional pilot’s license to operate a drone.
Instead it requires a “remote pilot certificate.” A remote aircraft pilot certificate, is obtainable by passing a security check and successfully completing a written examination. The rule imposes no flight experience or flight test requirements for training. Someone who already has a pilot certificate can obtain a new remote pilot certificate by completing online training on drones. No examination is required.
Flights over people are not permitted unless they are participating in the activity for which the drone is being flown, but no particular distance from people is outlined. Accordingly, a newsgathering or other mission flown at an offset from people is permissible. Operations must not pose undue risk to persons or property. The final rule prohibits a single remote pilot from operating multiple drones at the same time. It also prohibits operations from a moving vehicle except over sparsely populated territory. The exception for sparsely populated territory should enhance the possibilities for powerline, pipeline, and railroad patrol.
The final rule specifies the subjects to be covered on the new knowledge test, adding "maintenance and preflight inspection” of small drones to the list published in the NPRM. The same subjects are to be covered on the training component for manned aircraft pilots. Presumably, the nature and content of such training is left to the discretion of the person or entity conducting the training, similar to the method of ground instruction provided by CFI’s for manned aircraft ratings conducted under part 61. Knowledge areas are outlined in the PTS (Practical Test Standards), and airman training is structured to meet those knowledge areas for the rating sought. Designated Pilot Examiners (DPE’s) and Certified Flight Instructors (CFI's), among others, are authorized to conduct the required training of existing pilots and to certify completion of training and currency.
The new rule does not specify how the contents of the new tests and training modules will be determined. Tests will be administered through existing aviation knowledge testing centers. Presumably, as with other airman testing, the actual tests will select questions from question pools developed by the FAA or its contractors.
The final rule shows additional flexibility in a number of relatively minor but important areas. For example, it makes explicit what the co-authors had assumed: someone who lacks formal remote-pilot qualification can manipulate the controls of a drone if he is directly supervised by a fully qualified pilot in command. Second, it provides flexibility for the height limit to be adjusted for operations involving buildings. A drone can fly higher than 400 feet AGL so long as it days within 400 feet above and 400 feet horizontally from a structure. This permits bridge and tower inspections that otherwise would be prohibited by the general 400-foot height limit. It allows operations near airports and heliports so long as they do not interfere with traffic patterns or other traditional manned aircraft operations. ATC authorization is required, however, to operate in controlled airspace near busier airports.
The final rule makes it clear that the remaining restrictions most objectionable to the news industry are subject to waver upon application. The rules authorize waivers from the Part 107 limitations, and invite application for waiver of certain limitations such as: prohibition on night flying, prohibition on operation from moving vehicles, or flying over people. It also invites requests for waiver of the light-of-sight requirement and the controlled-airspace restrictions. The agency promises an online process for applying for such waivers and burdens the applicant for a waiver with explaining how the proposed operation can be conducted safely.
Although the FAA got off to a slow start in providing an appropriate regulatory structure for drones, the final rule is a model of good agency judgment and good agency procedure. In more than 500 pages of preamble, the FAA carefully works through major comments and explains why it accepted or rejected suggestions for change in the NPRM.
Publication of the final rules represent a leap forward for journalism, which now is able to use this promising new technology without too many hurdles. The uncertainty, cost, and delay of applying for section 333 exemptions are gone, and any journalist should be able to prepare for the knowledge test and certification as a remote aircraft pilot within a few weeks, at minimal cost.
Other provisions in the NPRM that remain in the final, such as prohibition of flights over people, night flight, and for moving vehicles are identified for waiver on a case-by-case basis through an expedited basis through a new online application process. And, because of the availability of temporary remote aircraft certifications, journalists can begin flying merely by applying, while they prepare for the knowledge test.
Henry Perritt, Jr. is is a law professor and former dean at Chicago-Kent College of Law. Eliot O. Sprague is a full-time news helicopter pilot and is a helicopter flight instructor. The pair have written several articles about the potential use of drones in newsgathering, and co-own a company, Modovolate Aviation, LLC; which was formed to conduct drone research, experimentation, demonstration, and education. Their new book, Domesticating Drones: The technology, law and economics of unmanned aircraft, is being published this fall by Routledge.