COA


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Drone Law for Drone Training Educators, K-12 Schools, & Universities.

drone-law-education-teacher-professor-school

This article is written to help drone training educators and schools who offer drone training courses to understand the legal issues surrounding drones.

Why? We need drones in the schools to promote STEM education. Why am I all pro-STEM education? My wife and I ran a LEGO robotics business for a while where we taught physics and robotics. If you are an educator or school needing material, I have created a dedicated drone education resource page where I will continually add resources to help you in this area. 🙂

If you are setting up a drone program, you should check out my article 5 Problem Areas When Integrating Drones Into Large Companies as it brings up many questions that need to be answered by schools or universities setting up a drone program.

Don’t want to read? Watch or listen to the article here while you are doing something.

 

I. Foundations of Drone Law for Drone Training Educators

 

From my book Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them:

The Commerce Clause of the U.S. Constitution gives Congress authority to “regulate commerce with foreign nations, and among the several states.”[1] Congress created the Federal Aviation Agency by the Federal Aviation Act of 1958,[2] but in 1967, Congress changed the name into the Federal Aviation Administration (“FAA”) and moved that agency into the Department of Transportation (“DOT”) which is a Presidential cabinet department.[3] The FAA has been given by Congress jurisdiction to regulate navigable airspace of aircraft by regulation or order.[4] . . . .

The FAA has created regulations,[5] known as the Federal Aviation Regulations (“FARs”), which govern the certification of only civil aircraft,[6] civil pilot licensing,[7] airspace,[8] commercial operations,[9] general pilot operating rules,[10] pilot schools and certificated agencies,[11] airports,[12] and navigational facilities.[13]

federal-aviation-regulations-versus-interpretaions
The FAA also “regulates” in multiple ways by creating advisory circulars, or memos or interpretations on the regulations. Regulations ARE the law while advisory circulars, memos, and interpretations are the FAA’s opinion of how to follow the law, but they are NOT the law.  However, they somewhat become law in effect because even though they are not law, the interpretations change people’s behavior who would rather not pay an attorney to defend them in a prosecution case. They in effect stay out of the grey area like the guy with the yellow shirt in the graphic. When I say grey, I don’t mean that it is not clear as to whether it is law, the grey area is not law, but I mean that it is unclear as to whether a judge would agree with the FAA’s opinion and would find the guy in the yellow shirt to be in violation of the regulations. In short, the law is what you get charged with violating, but the interpretations/memos/advisory circulars are what determine if you are on the FAA “hit list” so they can go fishing to try and get you with the law.

Keep in mind that the FAA has the super vague regulation which prohibits you from acting in a careless or reckless manner[14] which functionally acts as a catch-all. This gets thrown in as a charge for almost every FAA prosecution out there. Out of the 23 FAA enforcement actions against drone operators I studied, all 23 of them were charged with violating 91.13 (107.23 was NOT around at the time the prosecutions started).

Why are these regulations created? They are really safety standards that have been proscribed by the FAA for us to follow to maintain the safety of the national airspace system. The FARs apply to almost everything that touches aviation. A good exercise is to find something that the FARs do NOT regulate. Below is a graph to help you understand the different areas that the FAA regulates which all contribute to the safety of the national airspace system.

faa-far-standards-pilot-aircraft-maintenance-medical

 

II. How Drone Training Educators Can Fly Legally

 

Unmanned aircraft can be flown as public aircraft under a public COA, as civil aircraft flown under a Section 333 exemption, as non-recreational unmanned aircraft under Part 107, or under Part 101 as a recreational unmanned aircraft. The classification of the aircraft will determine which set of regulations and standards are used. Below is a graphical summary of the requirements of each of the different classifications. Purple is where the burden of determining the standards is placed upon the remote pilot in command. Grey is where the FAA determines the standards.

part-107-101-333-exemption-publicc-coa-comparison

We are now going to explore each of the 4 options as they relate to drone education.

A. Public Aircraft Operations Under a Public Certificate of Authorization (COA).

public-coaPublic aircraft are those that (1) fall into 1 of 5 statutorily defined owned/operated situations,[15] (2) are flying for a governmental purpose,[16] and (3) are NOT flying for a commercial purpose.[17] The big benefit to obtaining public aircraft status is the public aircraft operator determines their own standards for the pilot, aircraft, maintenance of the aircraft, and the medical standards of the pilot, but they still must fly under the restrictions given to them by the FAA as listed in the public certificate of authorization (COA).

Unfortunately, educators and schools are unable to fly unmanned aircraft under a public COA for education. (Keep in mind many universities are flying under public COAs but for purposes like aeronautical research.)

The FAA answered the question of whether education was a governmental function in a letter from Mark Bury of the FAA’s Chief Counsel’s Office to Jim Williams of the UAS Integration Office by saying:

If the FAA now were to read a concept as broad as education into the statute, it could exponentially expand the operation of unregulated aircraft. As a concept, education is not restricted to age or curriculum, and would include aviation education such as flight schools. All manned flight schools are civil operations, and are subject to significant regulation – none use public aircraft to teach students to fly, nor would we allow uncertificated pilots operating unregulated aircraft to teach others. The same must hold true for UAS, as the statute contains no distinction in the type of aircraft used to conduct a public aircraft operation. Accordingly, we must answer in the negative your question of whether a university could, in essence, conduct a UAS flight school using its COA.

You also asked whether some limited form of education could be found governmental. It would not be defensible to include education as a governmental function but then draw artificial limits on its scope, such as the level of education being provided, the curriculum, or the aircraft that can be used. Since our agency mission is the safe operation of the national airspace, including the safe integration of UAS into it, any analysis of whether the list of governmental functions can reasonably be expanded to include education must contain a clear consideration of the overall effect that such a change would have on aviation as a whole. There is nothing in the law or its minimal legislative history to suggest that Congress intended education to be a governmental function that a state needs to carry on its business free of aviation safety regulations.

 

Let’s go to the next option for educators.

 

2. The Section 333 Exemption for Drone Training and Education

section-333-exemptionstandardsSection 333 of the FAA Modernization and Reform Act of 2012 says:

(b) ASSESSMENT OF UNMANNED AIRCRAFT SYSTEMS.—In making the determination under subsection (a), the Secretary shall determine, at a minimum—

(1) which types of unmanned aircraft systems, if any, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not create a hazard to users of the national airspace system or the public or pose a threat to national security; and

(2) whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 of title 49, United States Code, is required for the operation of unmanned aircraft systems identified under paragraph (1).

This authority given to the FAA was created before Part 107 or Part 101 were created.  The FAA’s view at that time was that all the FARs applied to civil aircraft.  These regulations were very burdensome to comply with. For example, 14 CFR 91.119 requires the aircraft to be at least 500ft away from non-participating people and property which makes it very hard to do aerial photography from 500ft! The FAA was given authority under Section 333 but needed another legal tool to help the drone operators get airborne.

The FAA used the authority given to them in Section 333 to determine that the unmanned aircraft did not need an airworthiness certificate. The remaining regulations were taken care of by using the Part 11 exemption process. This is why the paperwork allowing you to fly was nicknamed the 333 exemption, even though Section 333 does NOT provide any exemption powers!

The operator operates under all the federal aviation regulations, except for those specifically exempted.  Where  exempted, the operator flies according to the restrictions which will provide an equivalent level of safety as the regulations they were exempted from.

The FAA wisely decided to create restrictions in the 333 exemption which required the pilot in command to determine the airworthiness of the aircraft and determine proper maintenance; however, all the pilots were still required to have a sport pilot license or higher, a driver’s license or a 3rd class medical, and they were still limited by Part 91 and its restrictions regarding their operation.

Exemptions are operation specific. The first group of exemptions were for the cinematography industry which was focused on creating movies, not on instructing or education. The restrictions slowly morphed over time to be “eh O.K.” enough to allow for other industries to use the 333 exemptions.

Over a year after the first exemptions were granted, on November 20, 2015, the FAA finally granted a Section 333 exemption to Kansas States University to allow for flight instructing.

The FAA issued their educational memo on May 4, 2016 and Part 107 was released June 21, 2016 which is far easier to operate under than the Section 333 exemption. The idea behind the memo was to allow people to fly for purposes of education without having to obtain a Section 333 exemption.

To further promote flight training, the FAA granted on November 14, 2016 an amendment to a giant list of exemptions to allow many exemptions to conduct training of students. See FAA Updated Section 333 Exemptions.

3. The FAA’s Memo on the Educational Use of Drones and Part 101 (Recreational Operations)

far-part-101-recreational-model-aircraft-dronesa. Background to Part 101 Subpart E.

Up until Part 101 Subpart E went into effect, the FAA was pretty much echoing the definition of model aircraft as defined in Section 336 of the FAA Modernization and Reform Act of 2012. Part 101 Subpart E is just a copy-paste of Section 336.

Keep in mind that the terms “model aircraft” and “recreational aircraft” are used interchangeably throughout the FAA’s website and material even though recreational aircraft might not be a miniature model versions of a full-sized manned aircraft (e.g. Phantom 4 as opposed to a model P-51 Mustang).

The FAA’s treatment of Section 336 is really weird because the FAA uses Section 336 to somehow define model aircraft but Section 336 was specifically directed at the FAA telling them what NOT to regulate.  The FAA ignored what Congress said in Section 336 twice. Once when the FAA created the new Part 48 registration regulations and secondly when they created Part 101 Subpart E.  For a much more in-depth discussion of how the FAA has violated Section 336 see my article on why the registration requirements and regulations are illegal.

The reasons I have question marks over these areas is that the newly created Part 48 regulations and the FAA’s interpretation that all aircraft are required to be registered are being challenged in the D.C. Circuit Court of Appeals. How the court rules will determine the effect of the FAA’s interpretations, Part 101, and Part 107 on model aircraft operations.

b. The Educational Memo

The reason why the educational memo was created was that many universities were wanting to offer classes where students would be required to fly the aircraft. This brought up questions such as “does the university need a Section 333 Exemption?” or “does the student need a pilot license?” There were also spin-off questions such as “can we teach the local 4-H, Boy Scouts, etc. about drones?”

The FAA summed the memo up in three points:

  • A person may operate an unmanned aircraft for hobby or recreation in accordance with Section 336 of the FAA Modernization and Reform Act of 2012 (FMRA) at educational institutions and community-sponsored events[1]provided that the person is (1) not compensated or (2) any compensation received is neither directly or incidentally related to that person’s operation of the aircraft at such events;
  • A student may conduct model aircraft operations in accordance with Section 336 of the FMRA in furtherance of his or her aviation-related education at an accredited educational institution;
  • Faculty teaching aviation-related courses at accredited education institutions may assist students who are operating a model aircraft under Section 336 and in common with a course that requires such operations, provided that the student maintains operational control of the model aircraft such that the faculty member’s manipulation of the model aircraft’s controls is incidental and secondary to the students (e.g. the faculty member steps in to regain control in the event the student begins to lose control, to terminate flight, etc.)

UAS Demonstrations

Hobbyists or enthusiasts can fly at an “accredited educational institution or other community-sponsored events to promote the safe use of UAS and encourage students’ interest in aviation as a hobby or for recreational purposes provided the hobbyist receives no compensation of any kind (honorarium or reimbursement of costs), or any such compensation neither directly or indirectly furthers the hobbyists’ business or operation of the UAS.[4]

Keep in mind that the last portion is very broad. If you think this might apply to you, the work around is to just do demos inside a completely enclosed building and avoid all these legal gymnastic problems.

Student Use

We were all wondering if the skills learned from education somehow prevented the flight from being recreational. The FAA’s interpretation of recreational was that the operator was not receiving any direct or indirect benefit. Skills would be an indirect benefit so this kept many on the sideslines.

The FAA went on to say that just because a student learns about the knowledge of flight does not make the flight not hobby and recreational when they will use that knowledge to get a degree.[5] The link between knowledge, to degree, to job is just “too attenuated” to be considered outside of hobby or recreational use.

The FAA concluded that UAS flying for “students at accredited educational institutions as a component of science, technology, and aviation-related educational curricula or other coursework such as television or film production or the arts more closely reflects and embodies the purposed of ‘hobby and recreation[.]’”[6]

If the student receives any reimbursement for costs or an honorarium then that is NOT hobby and recreational; however, a student may receive financial aid, participating in a work-study program, or being a paid research assistant to a faculty member teaching the course.[7]

Faculty Use

Faculty teaching a course or curricula that uses unmanned aircraft as a component of that course may provide limited assistance to students operating the unmanned aircraft” without changing the student’s hobby and recreational classification or the need for the faculty to obtain FAA authorization.[8]

This limited assistance exception is only where the UAS operation is secondary in the course; however, if UAS operations is the primary reason for the course, the faculty member would need authorization, but the student, as defined above, would not.

It is NOT considered hobby and recreational for a faculty member or assistant to operate a drone as part of their professional duties. Additionally, a professor cannot do a “work around” and get the students to fly the drone for purposes of the faculty member’s professional research objectives.

When Does a University’s Class/Operations NOT Fall Into This Exception?

  • Faculty operating the drone for research and development
  • Faculty supervising students doing research and development using a drone
  • UAS flight instruction where the faculty instructor is actively involved in the operation (not incidental and secondary); however, just teaching without touching the controls would be fine. (Think of it like the faculty is the air traffic controller teaching the student how to land the aircraft.)

Problems I See:

  • How much of this has been superseded or will be overruled?
    • Does the newly created Part 101 nullify the older 336 interpretations? Will the FAA treat the 336 interpretations like they were really Part 101 interpretations?
    • How will the Taylor cases in the D.C. Circuit Court of Appeals cause problems to the reach of the interpretations on the 336 protected model aircraft class?
    • Keep in mind the FAA mentioned in the Part 107 preamble that they are revising the 2014 model aircraft interpretation.
  • Must the Model Aircraft Be Registered?
    • Nothing is said in the memo about whether the aircraft must be registered or not. This is most likely an oversight on the FAA’s part since they have been campaigning hard about the need for all aircraft 250 grams or above to be registered.
    • The FAA’s interpretation of Section 336 is that it prohibits the specific regulation of model aircraft, not the regulation of all aircraft as a whole like it is some sort of civil rights for drones equal protection clause which does not in any way work with the meaning of “special” in the title to Section 336. In other words, how are model aircraft special (as indicated in the title of 336) if model aircraft are required to be treated like everyone else?
  • Are Model Aircraft Special or Not?
    • There is something seriously incongruous with the FAA’s view of Section 336 and Part 101 and how Section 336 actually reads. The FAA seems to view 336, and now Part 101, as a means of allowing model aircraft flights without “authorization”[9]when in reality it is specifically addressed at the FAA telling them to not create any rule or regulation governing model aircraft.
  • FPV Flying
    • The FAA in their 2014 interpretation on the model aircraft rules indicated that FPV racing would NOT fall within Section 336’s definition of model aircraft.[11]An interesting point here is the Federal Aviation Regulations required the pilot to “see and avoid” other aircraft[12] and Section 336 defines the model aircraft as being “flown within visual light of sight of the person flying the aircraft.”[13] This all logically follows that the FAA’s interpretation would be that FPV racing, while possibly permitted under this interpretation, would NOT be permitted under their model aircraft interpretation from 2014 since it would not be considered a “model aircraft” for purposes of Section 336 or Part 101.

So what does all this mean?

There are more problems here than a MacGyver episode.

There are two easy solutions for educators and schools: (1) have the students and teachers all fly indoors or (2) have the teacher/professor obtain a Part 107 remote pilot certificate and one student flies under the direct supervision of the teacher/professor. Part 107 is a far less restrictive than the newly amended Section 333 exemptions.


4. Part 107 (Non-Recreational Operations)  Drone Training 

far-part-107-standards

The best choice is for the professor/teacher to obtain a remote pilot certificate. (In-depth step-by-step instructions for obtaining the certificate for first time and current pilots are located here). There are two options for obtaining it:

  1. Manned aircraft pilots certificated under Part 61 and who are also current with a biannual flight review can take a free online training course. They can then get identified from either a certified flight instructor, an FAA aviation safety inspector, a designated pilot examiner, or from an airmen certification representative. They then file through an online portal. They’ll receive and email later notifying them they can print out their temporary remote pilot certificate.
  2. Brand new pilots can take the remote pilot initial knowledge exam ($150) at a testing center. Also, manned pilots who are not current will have to take the knowledge exam.

 

If you are brand new to all of this and don’t know much about Part 107, read What Drone Operators Need to Know About the New Part 107 Drone Regulations.

There are many resources out there to study for the exam. There are some paid courses out there, but I have created a FREE 100+ page study guide for this test.

Part 107 Articles You Might Enjoy

Important Points About Part 107 For Educators & Schools:

Please understand that this is NOT a complete list.

The minimum age of the remote pilot in command is 16 years of age. Keep in mind there is no limit how young a person can be who is flying under the direct supervision of the teacher.

Part 107 is for OUTSIDE buildings while in the national airspace. You can get around the regulations by operating in a completely closed building.

The FAA said on page 103-104 of the preamble to the final rule:

To further enable the educational opportunities identified by the commenters, this rule will allow the remote pilot in command (who will be a certificated airman) to supervise another person’s manipulation of a small UAS’s flight controls. A person who receives this type of supervision from the remote pilot in command will not be required to obtain a remote pilot certificate to manipulate the controls of a small UAS as long as the remote pilot in command possesses the ability to immediately take direct control of the small unmanned aircraft. This ability is necessary to ensure that the remote pilot in command can quickly address any mistakes that are made by an uncertificated person operating the flight controls before those mistakes create a safety hazard.

The ability for the remote pilot in command to immediately take over the flight controls could be achieved by using a number of different methods. For example, the operation could involve a “buddy box” type system that uses two control stations: one for the person manipulating the flight controls and one for the remote pilot in command that allows the remote pilot in command to override the other control station and immediately take direct control of the small unmanned aircraft. Another method could involve the remote pilot in command standing close enough to the person manipulating the flight controls so as to be able to physically take over the control station from the other person. A third method could employ the use of an automation system whereby the remote pilot in command could immediately engage that system to put the small unmanned aircraft in a pre-programmed “safe” mode (such as in a hover, in a holding pattern, or “return home”).

 

III. Potential Liability Issues that Drone Training Instructors and Schools Face

Instructors and schools face liability issues from multiple areas. Please understand that this is NOT a complete list. You should talk to an attorney to find out what applies to your situation.

A. State and Local Law Issues

All sorts of states, towns, and counties have started creating drone laws. It is becoming very problematic to keep track of them all since they are springing up like mushrooms. It is almost as if drones laws are the like the latest fad for government officials – like Pokemon and we are now as drone operators trying to catch them all.

Here are two resources that could be very valuable to help you find out your STATE laws:

Regarding county, city, and town laws…good luck.  You are on your own there. This is a big problem for the industry because there is no easy way to track the laws. The databases aren’t complete and these local governments all are wanting to play FAA use all sorts of different terms (drones, UAS, unmanned aircraft, model aircraft, model airplanes, etc.).  You end up having to search for a bunch of different terms and hope one get’s a hit; otherwise, you are stuck in the land of uncertainty wondering if you didn’t find the drone law out there or there aren’t any.

The reason I bring this up is there are state laws that have criminal penalties and other liability issues. For example, Florida’s law provides for a private right of action for an individual to sue the drone operator using a drone to gather data of the person’s property that was not able to be seen at eye level. Make sure you check your local laws! The FAA is NOT the only one trying to regulate your drones.

B. Students Versus the Teacher

Let’s say a student is flying the drone and the teacher isn’t paying attention to the student’s flying. BAM. Now the student injured himself, the teacher, or another student.  Uhhh ooo.

Was the teacher proficient in instructing? Was there a means to override the student’s actions to prevent this? Is there insurance covering the teacher, school, and student?

C. Third Party Bystander Versus Teacher (Now & Later)

This area of liability can be broken down into current liability and a residual type of liability.

The current type of liability would be the teacher and student versus other third parties in the area at the time. (Maybe a mom jogging with a baby stroller, the mailman, old guy walking his dog, etc.)

The more subtle and dangerous type of liability is the lingering residual type of liability that happens when you train many students. If you train 100 students, that is 100 reasons flying around to get you sued. If one of them crashes into someone, you could get brought into a lawsuit as a defendant under the idea that you provided negligent instruction to the student. Hopefully you will have an insurance policy that will cover this. This is why myself, and other flight instructors, stop instructing all together because we don’t want to have this lingering liability.

You should also document the living daylights out of all the training you give to students. This will come in handy later on if there is a lawsuit. I created a drone operator’s logbook which will be helpful for documenting training.  Yes, it is a paper logbook which means you WON’T have battery, connectivity, firmware, IOS version, etc. problems.

Conclusion

This is an evolving area of the law. On top of that, it is confusing. If you are setting up a program or currently are running one, you might want to consider working with an aviation attorney to help you navigate this area safely.  Additionally, you might need waivers and/or authorizations for some of your operations. If you are needing help, contact me so we can get your program off the ground and soaring to new heights of success by integrating drones to save time, money, and lives.

 

[1] U.S Const. art. I, § 8; see also 49 U.S.C. § 40103 (a)(1)(“The United States Government has exclusive sovereignty of airspace of the United States.”).

[2] Federal Aviation Act, Pub. L. No. 85-726, 72 Stat. 731 (1958).

[3] See A Brief History of the FAA, Fed. Aviation Admin., http://www.faa.gov/about/history/brief_history/

[4] See 49 U.S.C. § 40103(b)(1)(Congress delegated to the FAA the job to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.”)(emphasis mine).

[5] 14 C.F.R. §§ 1-199.

[6] 14 C.F.R. §§ 21-49.

[7] 14 C.F.R. §§ 61-67.

[8] 14 C.F.R. §§ 71-77.

[9] 14 C.F.R. §§ 119-135.

[10] 14 C.F.R. §§ 91-105.

[11] 14 C.F.R. §§ 141-147.

[12] 14 C.F.R. §§ 150-161.

[13] 14 C.F.R. §§ 170-171.

[14] 14 C.F.R. § 91.13; 107.23.

[15] See 49 U.S.C § 40102(a)(41).

[16] See 49 U.S.C. § 40125(a).

[17] See id.


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Press Release: Rupprecht Law’s Client Just Received a Part 107 Night Waiver

Part-107-night-waiverImmediate Press Release:

Rupprecht Law, P.A.’s client Red Raptor just picked up a night waiver today. Here is a picture from the first page.  The waiver is good for the entire United States in Class G airspace. It lasts until 2020. The manual used was developed by Airspace Consulting.

 

Why are night waivers so important?

14 CFR 107.29 requires:

(a) No person may operate a small unmanned aircraft system during night.

(b) No person may operate a small unmanned aircraft system during periods of civil twilight unless the small unmanned aircraft has lighted anti-collision lighting visible for at least 3 statute miles. The remote pilot in command may reduce the intensity of the anti-collision lighting if he or she determines that, because of operating conditions, it would be in the interest of safety to do so.

(c) For purposes of paragraph (b) of this section, civil twilight refers to the following:

(1) Except for Alaska, a period of time that begins 30 minutes before official sunrise and ends at official sunrise;

(2) Except for Alaska, a period of time that begins at official sunset and ends 30 minutes after official sunset; and

(3) In Alaska, the period of civil twilight as defined in the Air Almanac.

All sorts of jobs need night waivers:

  • Search and rescue at night
  • Inspecting roofs using a FLIR camera to spot water damage
  • Firefighting or law enforcement at night
  • Aerial cinematography
  • Sport or event filming
  • Security
  • Wildlife monitoring/filming

pilotheadshot

If you are needing help in obtaining a night waiver, please contact Rupprecht Law, P.A. today.

In selecting an aviation attorney to help your company, it is important to look at their background to see if they have any aviation experience. Don’t hire a poser, hire an aviation attorney who is also a commercial pilot. Jonathan is a commercial pilot and current flight instructor, has co-authored an American Bar Association legal treatise on unmanned aircraft law, co-authored a book on UAS flight instructing soon to be published by the ASA, has helped over 100 individuals or companies with drone law, and received a 100% on his Part 107 initial knowledge exam which he took to validate the principles he taught in his FREE Part 107 study guide.


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Q & A about Section 333, Part 107, and Drone Law.

I was recently interviewed by Jeremiah from Commercial UAV News. The title of the article is Your FAA Regulation Questions Answered: Part 107, Section 333 and the Future of Drone Law.  I would highly suggest everyone take the time to read over this Q & A article.

 

Your FAA Regulation Questions Answered: Part 107, Section 333 and the Future of Drone Law


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

FAA Part 107 Waiver (COA) – What Drone Pilots Need to Know

FAA drone regulatory flexibiltiy

The FAA understands that not everything will fall neatly into the set of the FAA Part 107 regulations. Sometimes things fall outside of the “box,” but still need to be made safe and legal. The FAA builds into regulations what is called “regulatory flexibility” which can be understood as legal “wiggle room.” There are multiple ways that regulatory flexibility can happen in the regulations: waivers, authorizations, deviations, and exemptions. If the particular regulation you are interested in cannot be resolved by waiver, authorization, or deviation, then the exemption process is all that is left. Since September 2014 until June 21, 2016, the exemption and waiver process was what was being legally used to get drones airborne.

The FAA has wisely built into Part 107 a specific section that lists out what regulations are specifically waivable. An individual applies to the FAA for a certificate of waiver. Many in the industry describe this by using the term COA. This is because the form that is used to apply for a waiver is for a certificate of waiver or authorization. You aren’t getting an authorization, but a waiver so COW would be the most legally correct term – but don’t have a cow over the proper legal term. An unmanned aircraft waiver typically lasts for 4 years  and will need to be renewed.

Section 107.205 lists out specifically what regulations are waivable. Below are the waivable regulations and examples of operations that would need this type of waiver.  If you are interested in any type of operation in either list below, please contact me.

The FAA Part 107 Regulations That Can Be Waived:

  • 107.25 – Operation from a moving vehicle, boat, or aircraft. Here are operations that will need a waiver from this regulation: moving vehicle and drone
    • Operating a drone from a moving aircraft.
    • Powerline inspection in populated areas.
    • Pipeline inspection in populated areas.
    • Cinematography or car commercials for TV in populated areas.
  • 107.29 – Daylight only operations. (Article on How to Fly Your Drone at Night or Civil Twilight). Here are operations that will need this waiver:moon
    • Search and rescue at night
    • Inspecting roofs using a FLIR camera to spot water damage.
    • Firefighting or law enforcement at night.
  • 107.31 – Visual line of sight aircraft operation. Here are operations that will need this waiver:beyond visual line of sight
    • Beyond visual line of sight operations for mapping, agriculture, search and rescue (but none of these are package delivery of another person’s property.)
    • FPV racing commercially WITHOUT a visual observer.
  • 107.33 – Visual observer.
  • 107.35 – Operation of multiple small unmanned aircraft systems. Here are operations that will need this waiver:
    • The pilot in command wants to fly two or more drones at the same time.
    • Swarming drones for entertainment like Intel and Disney are interested in.
  • 107.37(a) – Yielding the right of way.
  • 107.39 – Operation over people. Here are operations that will need this waiver:crowd
    • News over crowds
    • Law enforcement monitoring large crowds.
    • Filming concerts or demonstrations.
  • 107.41 – Operation in certain airspace. Here are operations that will need this waiver:
    • Flying airportin Class B, C, D, or E airspace which is almost always near an airport. Yes, you have to have a COW to operate in these airspaces. I explain this in my FAA Part 107 FAQ page.
  • 107.51 – Operating limitations for small unmanned aircraft. Here are operations that will need this waiver:
    • Flying higher than 400ft.
    • Faster than 100MPH
    • Flying in less than 3 statute miles of visibility
    • Flying within 500 ft. below or 2,000 ft. horizontally of clouds.

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Not All Of The Part 107 Regulations Can Be Waived.

Here is a list of things that CANNOT be waived under 107:

  • Operations from a moving aircraft, vehicle, or boat while carrying property of another on the drone for compensation or hire.
    • Amazon and Google package delivery
  • Beyond visual line of sight aircraft operations carrying property of another on the drone for compensation or hire.
    • Amazon and Google package deliverydrone package delivery
  • 55 pounds and heavier operations
    • Crop dusting with the Yamaha R-Max
    • Closed-set cinematography using large cameras or dual cameras for stereo filming.
  • Carrying hazardous material.
    • Carrying spare LIPO batteries to other operators. LIPOs NOT in the drone are considered hazardous material.
    • Fireworks
  • Autonomous Operations– No Part 107 remote pilot in the loop.

There are other ways of getting operations in the second list legal. Just because you are in this list doesn’t mean that it is “game over.” Time until approval and associated costs with obtaining the approval are the big two concerns with obtaining approvals in the 2nd list. Some of the operations will be eligible and others not for approval under the Section 333 exemption.

The FAA wants you to apply to get these waivers at least 90 days before you need them. As we saw from the whole Section 333 exemption situation, don’t count on 90 days. Apply well in advance of when you think you will need the waiver.

I hope these two lists help you differentiate between when you can operate purely under Part 107 and when you’ll need to seek approval.

This post is part of an overall Part 107 blog series and you may enjoy a few of these other Part 107 blog posts.


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Rupprecht Law’s In-Depth Analysis of the New 400ft Blanket COA for Commercial Drone Operators

On March 23, 2015,[1] the FAA announced the “blanket” COA that would be given out to all Section 333 Exemptions for commercial drone operations going forward. Fast forward a year to March 29, 2016,[2] the FAA announces a revision to the blanket COA to allow operations up to 400ft.

Why is the 400ft increase so important? The reason for the blanket COAs being created in the first place was because EVERY COA was geographically defined. Unless the old blanket COA, which “blanketed” most of the operations, was created, the system would have choked to death in months. The 200ft old blanket COA somewhat worked for some operations around the U.S., but there are many lattice radio towers all over the U.S. that are between 200 – 400ft. Under the old blanket COA, each of these towers would need a new 400ft COA that would be site-specific and not nationwide like the blanket COA. This bogged down the system tremendously because EACH radio tower had to have a COA. Now commercial operations have the ability to fly their commercial drones up to 400ft. This new blanket COA has the ability to speed up the COA process because COA analysts won’t be wasting their time on these 200-400ft towers but now putting their skills to better use at looking at near airport COAs. The FAA “estimates the move will lessen the need for individual COAs by 30 to 40 percent.”[3] The new blanket COA coupled with the new Section 333 exemptions being given out with the “super list” of 1,120 pre-approved drones means processing times for 333 exemptions and COAs will start to decrease.

Many in the drone community have been frustrated because recreational drone operators can fly up to 400ft while the commercial operators were always stuck at 200ft, unless they obtained another COA. The FAA changing things while leaving other things inefficient shouldn’t surprise us. The FAA has been doing that over the past couple of years with recreational drones. See my analysis on Advisory Circular 91-57A.

Let’s compare the new and old COAs to see what has changed.

OLD COA

NEW COA

Max Height is 200ft Above Ground Level

 

Max Height is 400ft Above Ground Level

 

Signed by Jacqueline R. Jackson

 

Signed by Scott Gardner

 

SEE-AND-AVOID SECTION

3. The operator or delegated representative must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone. Such areas are depicted on charts available at http://www.faa.gov/air_traffic/flight_info/aeronav/. Additionally, aircraft operators should beware of and avoid other areas identified in Notices to Airmen (NOTAMS) which restricts operations in proximity to Power Plants, Electric Substations, Dams, Wind Farms, Oil Refineries, Industrial Complexes, National Parks, The Disney Resorts, Stadiums, Emergency Services, the Washington DC Metro Flight Restricted Zone, Military or other Federal Facilities.” 3. The operator or delegated representative must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, except operations in the Washington DC Special Flight Rule Area may be approved only with prior coordination with the Security Operations Support Center (SOSC) at 202-267- 8276. Such areas are depicted on charts available at http://www.faa.gov/air_traffic/flight_info/aeronav/. Additionally, aircraft operators should beware of and avoid other areas identified in Notices to Airmen (NOTAMS) which restricts operations in proximity to Power Plants, Electric Substations, Dams, Wind Farms, Oil Refineries, Industrial Complexes, National Parks, The Disney Resorts, Stadiums, Emergency Services, the Washington DC Metro Flight Restricted Zone, Military or other Federal Facilities.”
4. All aircraft operated in accordance with this Certificate of Waiver/Authorization must be identified by serial number, registered in accordance with 14 CFR part 47, and have identification (N-Number) markings in accordance with 14 CFR part 45, Subpart C. Markings must be) as large as practicable.4. The unmanned aircraft will be registered prior to operations in accordance with Title 14 of the Code of Federal Regulations.

REPORTING REQUIREMENTS ON PAGE 4 (Brand New)

4. Incident/Accident/Mishap Reporting After an incident or accident that meets the criteria below, and within 24 hours of that incident, accident or event described below, the proponent must provide initial notification of the following to the FAA via email at mailto: 9-AJV-115- UASOrganization@faa.gov and via the UAS COA On-Line forms (Incident/Accident).

1. All accidents/mishaps involving UAS operations where any of the following occurs:
a. Fatal injury, where the operation of a UAS results in a death occurring within 30 days of the accident/mishap
b. Serious injury, where the operation of a UAS results in: (1)hospitalization for more than 48 hours, commencing within 7 days from the date of the injury was received; (2) results in a fracture of any bone (except simple fractures of fingers, toes, or nose); (3) causes severe hemorrhages, nerve, muscle, or tendon damage; (4) involves any internal organ; or (5) involves second- or third-degree burns, or any burns affecting more than 5 percent of the body surface.
c. Total unmanned aircraft loss
d. Substantial damage to the unmanned aircraft system where there is damage to the airframe, power plant, or onboard systems that must be repaired prior to further flight
e. Damage to property, other than the unmanned aircraft.
2. Any incident/mishap that results in an unsafe/abnormal operation including but not limited to
a. A malfunction or failure of the unmanned aircraft’s on-board flight control system (including navigation)
b. A malfunction or failure of ground control station flight control hardware or software (other than loss of control link)
c. A power plant failure or malfunction
d. An in-flight fire
e. An aircraft collision involving another aircraft.
f. Any in-flight failure of the unmanned aircraft’s electrical system requiring use of alternate or emergency power to complete the flight
g. A deviation from any provision contained in the COA
h. A deviation from an ATC clearance and/or Letter(s) of Agreement/Procedures
i. A lost control link event resulting in
(1) Fly-away, or
(2) Execution of a pre-planned/unplanned lost link procedure.

  1. Initial reports must contain the information identified in the COA On-Line Accident/Incident Report.
  2. Follow-on reports describing the accident/incident/mishap(s) must be submitted by providing copies of proponent aviation accident/incident reports upon completion of safety investigations.
  3. Civil operators and Public-use agencies (other than those which are part of the Department of Defense) are advised that the above procedures are not a substitute for separate accident/incident reporting required by the National Transportation Safety Board under 49 CFR Part 830 §830.5.
  4. For other than Department of Defense operations, this COA is issued with the provision that the FAA be permitted involvement in the proponent’s incident/accident/mishap investigation as prescribed by FAA Order 8020.11, Aircraft Accident and Incident Notification, Investigation, and Reporting.

AIR TRAFFIC CONTROL SPECIAL PROVISIONS

(nothing)3. The area of operation defined in the NOTAM must only be for the actual area to be flown for each day defined by a point and the minimum radius required to conduct the operation.
3. Operator must cancel NOTAMs when UAS operations are completed or will not be conducted.4. Operator must cancel NOTAMs when UAS operations are completed or will not be conducted.
4. Coordination and deconfliction between Military Training Routes (MTRs) is the operator’s responsibility. When identifying an operational area the operator must evaluate whether an MTR will be affected. In the event the UAS operational area overlaps (5 miles either side of centerline) an MTR, the operator will contact the scheduling agency 24 hours in advance to coordinate and deconflict. Approval from the scheduling agency is not required. Scheduling agencies are listed in the Area Planning AP/1B Military Planning Routes North and South America, if unable to gain access to AP/1B contact the FAA at email address mailto:9-AJV-115-UASOrganization@faa.gov with the IR/VR routes affected and the FAA will provide the scheduling agency information. If prior coordination and deconfliction does not take place 24 hours in advance, the operator must remain clear of all MTRs.5. Coordination and de-confliction between Military Training Routes (MTRs) is the operator’s responsibility. When identifying an operational area the operator must evaluate whether an MTR will be affected. In the event the UAS operational area overlaps an MTR, the operator will contact the scheduling agency 24 hours in advance to coordinate and de-conflict. Approval from the scheduling agency is not required. Scheduling agencies are listed in the Area Planning AP/1B Military Planning Routes North and South America, if unable to gain access to AP/1B contact the FAA at email address mailto:9-AJV-115 UASOrganization@faa.gov with the IR/VR routes affected and the FAA will provide the scheduling agency information. If prior coordination and

de-confliction does not take place 24 hours in advance, the operator must remain clear of all MTRs.

FLIGHT PLANNING REQUIREMENTS

(1) At or below 200 feet AGL(1) At or below 400 feet AGL
d) 2 NM from a heliport, gliderport or seaplane base[4]  d) 2 NM from a heliport

 

The new blanket COA can be downloaded here. 

Drone Operator's Logbook

Drone Operator’s Logbook

The monthly COA reporting requirements have not changed, see another blog post on it here, which is good because this means the Drone Operator’s Logbook is still compatible. Unfortunately, the new COA still has the near airport restrictions. If you are needing help with Class B, C, D, E, or G airspace COAs, Rupprecht Law, P.A. can help with obtaining these COAs.

I hope this helps. If you have any questions, you can contact me. Remember, when dealing with drone law matters, don’t hire a poser, hire a lawyer who is a pilot!

pilotheadshot

pilotheadshot

[1] https://www.faa.gov/news/updates/?newsId=82245

[2] http://www.faa.gov/news/updates/?newsId=85264&cid=TW416

[3] Id.

[4] Notice BOTH COA’s still say, “Beyond the following distances from the airport reference point (ARP) of a public use airport, heliport, gliderport, or seaport listed in the Airport/Facility Directory[.]”


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Commercial Drone Law for Film & TV Production

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Note: The FAA just recently changed (3/7/2016) some of the language on their exemptions so this presentation is about 95% accurate.

Are you interested in using commercial drones in TV/movie production?  This video is specifically geared to the TV/movie production industry.

You’ll learn:

  • How do people or companies commercially operate drones?
  • Why do I need a Section 333 Exemption?
  • What are some of the restrictions in a Section 333 Exemption?
  • Myths that put production companies at risk.
  • Common myths surrounding the Section 333 exemptions.
  • Things you can NOT do under a Section 333 exemption and your Blanket COA.
  • Curent federal enforcement from the FAA and other agencies as well as state and local law enforcement.
  • Tips on vetting drone companies to making sure they are in complaince with what the FAA says.
  • The FAA’s future proposed commercial drone rules.
  • Operations that will NOT be allowed under the future proposed commercial drone rules.

Aviation Insurance is a must for anyone that hires, leases or operates a drone for commercial use. Contact the HUB International to learn more about how aviation insurance can protect you.

 

About HUB

As a Top 10 insurance broker in the world, HUB International is a trusted provider of personal, commercial and health insurance services. HUB Entertainment specializes in providing insurance solutions to film, TV & internet production companies, touring artists & bands, concert promoters, live event producers, theatrical productions and video game publishers and developers.  Please visit us at www.hubentertainment.com to get a quote for aviation insurance if you are using a drone in your business.


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Short list of things a 333 operator canNOT do under their stock 333 and blanket COA

I was recently asked, “What can a drone operator with a 333 NOT do when flying for cinematography purposes?”  Here is a partial list of some of the things that a 333 operator cannot do.  These are the most common types of violations I see.

 

Under the current 333 exemptions being given out, a drone operator cannot:

  • Fly at night (flying after civil twilight which is roughly around 20 minutes after sunset).
  • Fly within 500ft of non-participating and unprotected individuals, unless they have closed-set approval and those individuals are considered “participating” (actors) under the motion picture manual.
  • Fly aircraft weighing more than 55 pounds
  • Allow the drone pilot to fly when he does not have an FAA sport pilot license or higher license
  • Fly a drone while in a moving vehicle
  • Fly a drone that is not listed on their exemption
  • Fly a drone that is not registered

 

Under their blanket certificate of authorization or waiver (COA), a drone operator cannot:

  • Fly unless they have filed a notice to airman AND waited 24 hours
  • Fly over 200 feet above the ground
  • Fly within 5 nautical miles of an operational towered airport
  • Fly within 3 nautical miles from an airport having a published instrument flight procedure, but not having an operational control tower; or
  • Fly within 2 nautical miles from an airport not having a published instrument flight procedure or an operational control tower; or
  • Fly within 2 nautical miles from a heliport, gliderport or seaplane base; or
  • Fly near Power Plants, Electric Substations, Dams, Wind Farms, Oil Refineries, Industrial Complexes, National Parks, The Disney Resorts, Stadiums, Emergency Services, the Washington DC Metro Flight Restricted Zone, Military or other Federal Facilities.

 

Keep in mind that the 333’s being given out give these restrictions. They can be changed if an “equivalent level of safety” is shown.  Also, an individual can get a COA to fly near an airport, but the operator must put in an application that is site specific to the airport.  If you don’t like these restrictions, you can try and change them. They are NOT set in stone.

 


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

Monthly COA Reporting

COA reports

If you have a 333 with a blanket COA, you have to report your monthly activity even if you did NOT fly. Yes, I know this stinks because I myself have a 333 and have to report each month. The FAA’s COA website says, “The Monthly Operational report is expected to be submitted within 5 business days after end of the reporting month.”

Thankfully, these requirements are not in Part 107 going forward. However, there are NTSB and FAA reporting requirements if your drone happens to crash. Better to read and know them BEFORE you crash so you are not fumbling around if the situation happens.

Do we have a continuing obligation to report once we all switch over to Part 107 and stop using our 333s? Strictly speaking, yes, because the 333 and COA are still valid and the COA requires you to report even when you do not fly. I would continue to do it until the FAA tells you to stop or until the exemption expires 2 years after the grant date. You can find your expiration date by looking at the last page of your exemption.

Filing reports shouldn’t be much trouble if you set up an alert in your schedule or digital calendar to remind you at the end of each month.

SHARE! You should let your friends know about their monthly reporting requirements. Simply click one of the social media or email buttons located above or below to share with your friends.

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Reporting Requirements from the Blanket COA

1. Documentation of all operations associated with UAS activities is required regardless of the airspace in which the UAS operates. NOTE: Negative (zero flights) reports are required.
2. The operator must submit the following information through mailto: 9-AJV-115-UASOrganization@faa.gov on a monthly basis:

a. Name of Operator, Exemption number and Aircraft registration number
b. UAS type and model.
c. All operating locations, to include location city/name and latitude/longitude
d. Number of flights (per location, per aircraft)
e. Total aircraft operational hours
f. Takeoff or Landing damage
g. Equipment malfunctions. Reportable malfunctions include, but are not limited to the following:

(1) On-board flight control system
(2) Navigation system
(3) Powerplant failure in flight
(4) Fuel system failure
(5) Electrical system failure
(6) Control station failure

3. The number and duration of lost link events (control, performance and health monitoring, or communications) per UA per flight.

 


Jonathan Rupprecht

Mr. Rupprecht is an aviation attorney who focuses on drones. Read more about his background as a commercial pilot, flight instructor, Embry-Riddle Aeronautical University grad, and legal author. He has had media appearances on Forbes, Newsweek, Politico, NPR, Marketwatch, The Independent, Motherboard, and other sources. Feel free to send Jonathan a message here.

No, Part 107 Does Not Fix Everything.

The FAA released Part 107 on June 21, 2016.  This post is part of an overall series on Part 107.

I recently went on TV to briefly discuss the new drone regulations:

Make sure you sign up for my free newsletter if you want to receive blog posts like this in your email.

Will Part 107 fix all my problems?

Many people mistakenly believe that Part 107 is the answer to all their needs. This is not true as there are certain types of operations that are not covered under Part 107 which leaves individuals, businesses, public agencies to turn to other means of getting the aircraft’s flight authorized such as a waiver, a Section 333 exemption, a Public COA, or a Special Airworthiness Certificate and COA.

Part 107 ALONE does NOT cover:

  • Beyond Visual Line of Sight
    • Power line inspections in those really remote areas
    • SAR
    • Firefighting
  • Night Operations
    • SAR at night.
    • Firefighting at night.
    • Inspections using thermal equipment in hot environments where the best use is in the evenings and night.
    • Cinematography for tv/movie scene at night.
    • Inspections on critical time/sensitive material (example: turbidity monitoring for dredging operations) that need to be monitored 24/7.
    • Sports at night.
  • 55 pounds and heavier
    • Large package delivery
    • Crop dusting
    • Firefighting retardant delivery
    • High-end LIDAR to monitor crops such as lumber. The LIDAR is used to detect the diameter of the wood so the loggers know which forest to harvest first.
    • Cinematography (Dual Red Epics for 3d filming or full Arri Alexa with lens and large stack of batteries for extra flight time.)
  • 400ft and higher, unless you stay within 400ft of the building.
  • 100 mph and faster
    • Survey large areas fast
    • Fast package/medical delivery
  • Operation Over Persons
    • Concerts
    • Live News Events
    • Sports
  • Operations from a moving vehicle over populated areas.

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So if you are currently thinking these areas could be potentially beneficial, I would suggest looking into getting approvals for these types of operations because when the competition floods into the market after Part 107 becomes final, these areas will be more profitable. Contact me if you are interested in more information.

As always guys, stay safe and when choosing an attorney, don’t hire a poser – hire a pilot.