Drone Operation within the United States National Airspace System: A Review of the Current Landscape and a Look at what is on the Horizon
Drones, whether you like it or not, they are everywhere and they have the potential to change the way we interact with the world. In the United States, where the term of choice is unmanned aircraft (UA), the Federal Aviation Administration (FAA) has been given the titanic task of integrating them into our national airspace system. This process has been ongoing for several years but is just now starting to show significant progress. While the current progress is good news for UA operators, there is still a long road ahead. In this article we will explore the current regulations guiding non-recreational operation of civil UA in the USA and then take a look what the future may hold.
Under the current landscape, Congress has officially defined UA as “aircraft” which makes them subject to all current aircraft requirements under Title 14 of the Code of Federal Regulations. However, Congress has also called for the FAA to come up with a system to specifically address UA and allow them to safely and efficiently operate in our national airspace system. The goal is to realize the economic and social benefit that UA can provide without compromising the safety of people on the ground or aircraft in the sky. The new system is well on its way to becoming a reality, however the proposed regulations are complex which is prolonging finalization. In the interim, the FAA has provided several ways for UA operators to safely operate in our national airspace system under the current regulatory structure.
Before we dive further into FAA regulations of UA we must make one important, often misunderstood, distinction and that is the difference between recreational operation and non-recreational operation. For the purpose of this article we refer to non-recreational operation as commercial operation or use. The basic structure is that all UA are regulated in the same manner as manned aircraft. However, Congress has determined that if an operator is only using their UA within certain parameters designated for recreational operation then that UA is considered a “model aircraft” and therefore not subject to FAA regulation. The distinction is essentially based on two criteria, safety and compensation. Basically, if you are flying a small UA, in a safe manner, within visual line of sight, for hobby or recreational purposes, away from airports and manned aircraft, and not for compensation or furtherance of business then you are considered to be operating a model aircraft which is not currently subject to any FAA regulations. The distinction, while simple, is not always clear and can be further blurred by the fact that the same person, operating the same unmanned aircraft, in the same manner can be operating under either commercial or recreational rules based on underlying details of the flight.
While recreational UA operators may not currently be affected by FAA regulations, those operating in the commercial realm certainly are. As mentioned earlier the FAA holds commercially operated UA to the same standards as manned aircraft including “see and avoid” and aircraft certification requirements. The “see and avoid” requirement requires a pilot, onboard the aircraft, to monitor and observe their surroundings to make sure they are not on a collision course with another aircraft. This requirement is impossible for a UA pilot to comply with as they are, by nature of the aircraft, not onboard. Additionally, all commercially operated UA are currently held to the same certification requirements as any manned aircraft. This includes obtaining a type certificate, an airworthiness certificate, and exclusive operation of the aircraft by a pilot certified by the FAA. These certifications requirements carry with them substantial time commitments and financialand financial costs, both of which are simply too much to shoulder for the majority of UA operators, pilots, and manufacturers. Accordingly, the current regulatory framework in place for manned aircraft is simply too restrictive for most commercial UA operations.
Fortunately, the FAA has recognized the impossible challenge of subjecting commercial UA to the current manned aircraft regulations. Therefore, the FAA has offered operators several options to make commercial UA operations more viable prior to the introduction of new regulatory framework for UA. These options include airworthiness certification standards, experimental aircraft designation, and request for exemption. Ultimately, due to cost and time barriers, the only viable option for prospective commercial UA operators is the request for exemption. The exemption requested by commercial UA operators is commonly referred to as a 333 Exemption which is a reference to the section of the legislative act that allows for such UA exemption. The 333 Exemption process involves submitting a petition to the FAA containing information about the petitioner, the UA, the specific regulations from which relief is being sought, the extent of such relief being sought, how the exemption would benefit the public as a whole, and why the exemption would not adversely affect public safety.
The FAA reviews petitions for exemption on a case by case basis with an analysis focused on safety and public interest. If a petition is similar enough to a prior grant of exemption then it may be expedited via a summary grant of exemption, otherwise petitioners can expect to wait 120 days or more, depending on demand, for a decision to be made. While the FAA has agreed to offer relief to many of the most UA restrictive regulations in recent exemptions, they have been reluctant or unable to offer relief to other regulations that still put an enormous burden on UA operators. For example, even under the most generous 333 Exemptions granted to date, UA operators are still required to register the UA with the FAA and use only pilots with a current FAA airman certificate.
If a hopeful commercial UA operator makes it to the point at which the 333 Exemption has been granted, the UA has been registered with the FAA, and the intended pilot has obtained a current FAA airman certificate, then the last step is to obtain a Certificate of Waiver or Authorization (COA). The COA is the document that allows for a specific UA operation under the granted 333 Exemption. Currently all 333 Exemptions come with a standard “blanket” COA which allows for operation of an exempted UA, weighing less than 55 pounds, at or below 200 feet, during daytime, in Visual Flight Rules conditions, within visual line of sight, and at least two, three, or five miles from airports depending on their level of air traffic control. If a UA operator wants to fly outside the parameters of the “blanket” COA then they must obtain a separate COA from the FAA specific to the requirements of their intended flight. To obtain a separate COA the UA operator must apply for such through the FAA’s online UAS Civil COA portal. In our experience, while applying for a separate COA is a fairly simple process, approval of such can take 60 days or more depending on the level of demand. This lengthy process can lead to significant delays, especially when dealing with deadlines and potential customers who can’t or don’t want to wait 60 days.
As clearly illustrated even in this brief article, the road to commercial UA operations under the current regulatory system is long, difficult, and full of hurdles. However, this will most likely not always be the case as there is hope on the horizon. In February the FAA proposed a new set of regulations for the operation of relatively small UA. These proposed rules, if and when adopted, will become a separate set of regulations designed especially for UA and they will make things much clearer and easier for certain UA to operate in our national airspace system. More specifically, the proposed regulations will become Part 107 of Title 14 of the Code of Federal Regulations. While this is generally great news for UA operators, Proposed Part 107 will have a somewhat limited scope and therefore will not address all UA needs. Proposed Part 107 will apply to only small UA, which have been defined as those weighing less than 55 pounds. Additionally, it will also only apply to UA operations conducted within visual line of sight, during daylight hours, at no more than 100 mph airspeed, at or below an altitude of 500 feet, and within permitted airspace. All UA and UA operations not falling within the scope of Proposed Part 107 will continue to be regulated by the current manned aircraft framework discussed above.
While not totally comprehensive, Proposed Part 107 will still alleviate many of the unnecessarily burdensome requirements currently placed on UA operators. Under the proposed framework the impossible “see and avoid” requirement will be replaced by a more reasonable and applicable requirement that the UA operator maintain unassisted visual line-of-sight from the ground via the operator’s own eyes or via the use of a visual observer. As for the certification requirements, it is anticipated they will also be replaced by a more reasonable requirement. According to Proposed Part 107, the need for type and airworthiness certificates will be replaced with a simple requirement that the UA operator inspect the UA prior to each flight to ensure that it is in a condition for safe operation. Additionally, the pilot certification requirement will be relaxed and a UA pilot will be allowed to operate a UA under a new category of Operators Certificate which will be granted based specifically on the pilot’s knowledge of information relative to the operation of UA. One requirement which appears will remain under Proposed Part 107 is that of aircraft registration. An operator under Proposed Part 107 will still be required to register their UA with the FAA just like manned aircraft.
The new regulations under Proposed Part 107 will make commercial UA operations in the US national airspace system easier and more accessible. Nevertheless, even with the new regulations there will be many potentially beneficial UA operations that will remain prohibited. Proposed Part 107 will not allow for operations beyond line of sight, operations at night, operations solely from onboard cameras, operations of UA larger than 55 pounds, operations over people, operations involving parcel delivery, or operations that involve towing another aircraft or object. Many of these prohibited operations represent the future of UA potential and will quickly need to be integrated into future regulations to keep from stifling the rapidly expanding UA industry. So while Proposed Part 107 is a reasonable start, in reality the FAA has only yet addressed the tip of the iceberg when it comes to the true potential of UA.