Drone Law


FAA FAR Part 107 Frequently Asked Questions (FAQs)

part-107-drone-questionsSince Part 107 came out, there have been many questions surrounding the remote pilot certificate, TSA background checks, waivers vs. authorizations, where to take the exam, etc.  I wrote them down and I hope I provide you some clarity and answers to this evolving area of the law.

I’m breaking the FAA Part 107 FAQs down into these sections:

  1. General Questions,
  2. Part 61 Pilots (Sport, Recreational, Private, Commercial, ATP, but NOT Student),
  3. Non-Pilots,
  4. Those with Pending Section 333 Exemptions, and
  5. Those Who Already Have Section 333 Exemptions.

This is part of an overall FAA Part 107 Series of blog posts:

 

General Questions

 

If I pass this Part 107 remote pilot exam, can I charge for the flight?

Yes, provided you fly within the requirements of Part 107.

 

Do model aircraft individuals have to get a 107 exam?

No. Section 107.1 says Part 107 does not apply to “Any aircraft subject to the provisions of part 101 of this chapter[.]” Part 101 is the section for model aircraft. You are going to have to meet the criteria of Part 101 or you will be forced to fly under Part 107. One area that has not been fully clarified is whether FPV racing will be allowed to fly under Part 101 since FPV racing does not fully comply with the FAA’s 2014 Model Aircraft Interpretation which said FPV could not be used to see and avoid other aircraft. The preamble to Part 107 in Pages 73-77 said they will issue a final interpretation on the 2014 interpretation sometime coming up but they did NOT address the interpretation in Part 107. Interestingly, Part 107 DOES allow for FPV provided you use a visual observer.  See page 149 of the Part 107 Preamble.

 

Part 107 isn’t for model aircraft people but just commercial people, right?

No, everyone on the internet incorrectly classified everything as either commercial or non-commercial when the correct way to do it is model or non-model. Non-profit environmental organizations or fire departments are two good situations where they aren’t charging for the flight and cannot fall into model aircraft operations. They would need to get authorized some other way to fly.

 

What does Part 107 mean for the drone industry?

I was a guest on the Drone Radio Show podcast and gave my thoughts on how this will affect the industry.

 

How do I take this Part 107 exam?

See How to Get Your FAA Drone Pilot License (For First-Time and Current Pilots) for more information about how to get your drone pilot license.

 

What in the world do I study?

FREE Drone Pilot License Study Guide!

  • 100 + pages.
  • 41 FAA practice questions with answers.
  • 24 exclusive sample questions.
  • 6 "cram" pages.

"I just want to say THANK YOU for creating your site and explaining the 40 Sample Questions. I just took the remote pilot exam on 2/28/2017 and passed it with 93%!" -Peter

"[U]sed your Part 107 study guide extensively. Proud to say that I passed with 88% on August 31st[.]" -David

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How much does remote pilot initial knowledge exam cost?

First time pilots have to take the initial knowledge exam which is estimated at $150.[1] Current manned pilots can either take the initial knowledge exam for $150 or take an initial online training course for free.

 

When does Part 107 go into effect?

August 29, 2016.

 


I saw some link on the Facebook forums about a Part 107 test. I took it and received a certificate like what is on the right. Am I good to go?

drone pilot licenseThat online test is NOT the Part 107 initial knowledge exam. That test is ONLY for the current manned aircraft pilots who wish to obtain a remote pilot certificate. See How to Get Your FAA Drone Pilot License (For First-Time and Current Pilots) for more information about how to get your drone pilot license.

 

How many different exams are there?

The current manned aircraft pilots can take either the initial online training course or the Part 107 initial knowledge exam while the first time pilots can ONLY take the initial Part 107 knowledge exam. After you receive your remote pilot certificate, you’ll have to pass a recurrent exam within 24 calendar-months of passing either an initial or recurrent aeronautical knowledge test.

 


I read some people on Facebook telling me about the law……

Let me stop you right there. Getting aviation law advice off Facebook forums is like getting medical help off Craigslist – it’s dumb. Yes, I know there are a few good attorneys online that do help, but there are also a ton of posers. Friends don’t let friends drive drunk or get aviation law info off Facebook. On top of this, some of the people on these Facebook groups are committing the unlicensed practice of law by picking up clients for legal work but are too ignorant of their own criminal laws to know they are breaking these laws. Offering to help you be compliant with the law – while breaking the law themselves.

What happens if I fail the Part 107 initial knowledge test? 

The FAA’s Advisory Circular says on page 27, “Retaking the UAS knowledge test after a failure:

  • 14 CFR part 107, section 107.71 specifies that an applicant who fails the knowledge test may not retake the knowledge test for 14 calendar days from the date of the previous failure.
  • An applicant retesting after failure is required to submit the applicable AKTR indicating failure to the testing center prior to retesting.
  • No instructor endorsement or other form of written authorization is required to retest after failure.
  • The original failed AKTR must be retained by the proctor and attached to the applicable daily log.”

 

Let’s Talk About the TSA Background Check.

 

I’m a new pilot, does TSA pre-check or global entry count?

Don’t know.

 

I’m a current part 61 pilot trying to obtain my remote pilot certificate, do I have to get TSA background checked?

No, you already had your check when you obtained your Part 61 certificate.

 

I’m a fire fighter, law enforcement officer, government agency employee, etc……can I get my 107 certificate and then go do government stuff?  

Sure. But keep in mind that sometimes it might be beneficial to get a Public COA to accomplish the mission as there are certain restrictions with Part 107. However, there are Part 107 waivers that can be obtained. Contact me as each situation is different.

 

What can I NOT do under Part 107?

See my blog post on Part 107 waivers.

 

I did a drone certification course with some company, does that count?

No, your certification is worth nothing. A bunch of these drone courses popped up being taught by unqualified individuals who were far more proficient at WordPress and Mailchimp than they were at teaching weather and manuals.

 

Why do you use the term drone pilot license in the title of one of your blog posts when the correct term is remote pilot certificate?

I know the correct term is remote pilot certificate; however, when writing a blog post, it is important to write a title that would be understood by new individuals.  If you were new to this area, what would you type in Google?  I wrote the articles for first-time pilots, not existing pilots who know how to speak “aviationese.”

 

Do you have to have a pilot’s license to fly a drone?

It depends on. If you are flying recreationally according to Part 101, you do NOT need to have a pilot license. If you are flying non-recreationally (commercial, etc.), then you would need a pilot certificate.

 

Part 61 Pilots (Sport, Recreational, Private, Commercial, ATP, but NOT Student).

  1. How does a current manned aircraft pilot get a 107 certificate? See How to Get Your FAA Drone Pilot License (For First-Time and Current Pilots) for more information about how to get your drone pilot license.
  1. How long does my temporary certificate last? § 107.64(a) says, “A temporary remote pilot certificate with a small UAS rating is issued for up to 120 calendar days, at which time a permanent certificate will be issued to a person whom the Administrator finds qualified under this part.”

 

First Time Pilot Questions

  1. How do I go about getting my drone pilot license? The correct term is a remote pilot certificate. See How to Get Your FAA Drone Pilot License (For First-Time and Current Pilots) for more information about how to get your remote pilot certificate.
  2. Where can I take the 107 knowledge exam? You take it at a knowledge exam testing center. A complete list is located here.
  3. Can I fly under the Part 107 restrictions now since they will be out soon? I don’t have a 333 exemption. Nope. You can’t fly under them without having a remote pilot certificate.

Those with Pending Section 333 Exemptions

  1. I filed a 333 petition and it is still pending. Now what? The FAA will post a letter to your docket. See here for an example of what one looks like. The FAA is breaking the petitions down into three tiers: (1) operations that can be done within 107, (2) operations that can be done within 107, but need a waiver, and (3) operations that cannot be done within 107 even using a waiver.  Aerial data collection and closed-set exemption petitions are going into tier 1 which means the FAA is closing your docket and no further action is needed from you. You are going to have to go fly under Part 107 and you won’t be given a 333 exemption.
  2. But my exemption was just about to be approved. Am I goofed?  There was a line drawn in the sand. Exemption petitions or amendments that were posted to regulations.gov by June 22nd are being put into 1 of 3 tiers. Exemptions posted June 23 and onward will NOT be analyzed and put into one of 3 tiers. But going back to the answer to question 1, you most likely will be Tier 1 and the docket will be closed.
  3. Has the FAA gone through all the petitioners posted up until June 22nd? I think most of them have been analyzed.
  4. Which tier does a closed-set TV/movie filming petition go? Tier 1. Remember that Part 107 does not allow operations over people and would need a waiver. We were hoping that petitions asking for closed-set operations would be put in Tier 2 to have a waiver to operate over participating actors operating under the MPTOM. The FAA analyzed the newer summary Section 333 exemptions (~March  and onward) that were granted and determined that they do not allow operations over participating actors; thus, closed-set petitions cannot go into Tier 2.  Restriction 28 says:
    1. Over or near people directly participating in the operation of the UAS. People directly participating in the operation of the UAS include the PIC, VO, and other consenting personnel that are directly participating in the safe operation of the UA.
    2. Near but not over people directly participating in the intended purpose of the UAS operation. People directly participating in the intended purpose of the UAS must be briefed on the potential risks and acknowledge and consent to those risks. Operators must notify the local Flight Standards District Office (FSDO) with a plan of activities at least 72 hours prior to flight operations.
  5. Why did the FAA choose to do a cut-off? One primary reason is Part 11 of the Federal Aviation Regulations. Part 11 governs the FAA rulemaking process, which exemptions are a part of.  14 C.F.R 11.81 says, “You must include the following information in your petition for an exemption . . . The specific section or sections of 14 CFR from which you seek an exemption[.]” There was no Part 107 before. All the exemptions were asking for exemptions from certain parts of Part 61, Part 91, etc. Now we have Part 107. We need to file petitions for exemption from particular regulations of Part 107. We didn’t have the final rules before so we couldn’t have anticipated the specific regulations that we wanted exemptions from.
  6. I waited all this time and the FAA is just goofing me up? The FAA’s response would be that you should have filed sooner. They have thousands of pending 333 petitions.

Those Who Already Have Section 333 Exemptions

  1. I have a 333 and want to do a job tomorrow. Can I do it or do I have to wait to get a 107 certificate? Page 81 of the Preamble to Part 107 says, “the FAA will allow any Section 333 exemption holder to either continue operating under the terms and conditions of the exemption until its expiration, or conduct operations under Part 107 as long as the operation falls under Part 107.” Some time later you should switch over to Part 107 before the 333 exemption expires. Remember that Part 107 is not in effect right now so you can’t start operating under Part 107, which isn’t in effect, and on top of that, you don’t have a Part 107 certificate or 107 add-ons to your existing Part 61 certificate. Think of it like hats. You have a 333 hat right now. When 107 is being issued and you pick it up, you then have the choice to put on one hat or the other but remember you can’t mix and match parts of the hats.
  2. Do we still need to get COAs to operate near airports like we did with the 333s? You are required to get an airspace waiver if you are doing operations in Class B, C, D, or E airspace. So you still need a COA near actual legitimate airports. Gone are the days where we had to deal with the middle of nowhere private airports or the heliports that were completely all over the place like a herd of toddlers that somehow got into craft sparkles.
  3. Wait. I read Part 107 and it said ATC permission. It didn’t say anything about waivers. Where are you getting this COA idea from?  The FAA further clarified this area by their own FAQ page which says:
    • How do I request permission from Air Traffic Control to operate in Class B, C, D, or E airspace? Is there a way to request permission electronically?
      You can request airspace permission through an online web portal on the FAA’s UAS website. This online portal will be available on August 29, 2016.
    • Can I contact my local air traffic control tower or facility directly to request airspace permission?
      No. All airspace permission requests must be made through the online portal.
  4. What advantage do 333 guys have now?  You have the ability to transition over to Part 107 when you feel like it. Many are rushing in to get their Part 107 certificate but the test will not be available until August and the new pilots will have to pass a TSA background check – along with a ton of other people. For non-part 61 pilots, the date of taking the exam and date of having a temporary certificate in their hand are going to be two different dates. Another advantage is that the 333 operators with airspace COAs will have an advantage to those without. There could be delays in implementation by the FAA which affects the 107 people but not the 333 people. Ultimately, the 107 is going to replace the 333 exemptions, except for a few situations like 55 pound and heaver, VLOS package delivery, carrying hazardous material, etc.
  5. Can a Part 107 remote pilot fly under our 333 exemption as pilot in command? Prior to June 2016, no 333 exemption had this provision so NO. You can’t mix and match parts and pieces of the 333 and the 107. It is either/or. For example, let’s say you have a COA already for your 333 in Class D airspace, you can’t take that COA and apply it over to your 107 certificate.
  6. So why would I fly under Part 107 as opposed to the 333 exemption? There is no 500 foot bubble rule, no NOTAMs, no sport pilot license at a minimum, no visual observer requirement, etc.
  7. Can I renew my 333 exemption? This depends on whether you can do the operations under 107 or not. Most of the exemptions were for aerial data collection which can be done under Part 107 so they will most likely not be renewed. See page 87 of the preamble to Part 107 for more details.

FREE Drone Pilot License Study Guide!

  • 100 + pages.
  • 41 FAA practice questions with answers.
  • 24 exclusive sample questions.
  • 6 "cram" pages.

"I just want to say THANK YOU for creating your site and explaining the 40 Sample Questions. I just took the remote pilot exam on 2/28/2017 and passed it with 93%!" -Peter

"[U]sed your Part 107 study guide extensively. Proud to say that I passed with 88% on August 31st[.]" -David

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[1] Page 13.

[2] Page 580.


7 BIG PROBLEMS WITH COUNTER DRONE TECHNOLOGY (DRONE JAMMERS, ANTI DRONE GUNS, ETC.)


A Brief Background on the Brewing Drone Problem

drone-jammer-gun-defender-counter-technologyAs the drone industry is taking off, some individuals and groups have started using drones for malicious purposes around the globe. Many companies are watching the trend and are trying to get into the counter drone industry. They have introduced all sorts of drone guns, anti-UAS shotgun shells, attack birds, net cannons, lasers, missiles, radio signal jammers, radio spoofers, etc.

 

Types of Counter Drone Technology

The counter drone technology is getting lumped all into one bucket but I think it is best broken up into two categories: (1) detectors and (2) defenders.  Keep in mind that these terms are my own.

 

Some of what has been talked about as counter drone technology are not really counter technology but are just drone detectors. The systems can’t really do anything to STOP the drone, just tell you where the drone is and maybe the operator. Hopefully, police can locate the drone operator and get him to land the drone before anything happens.

 

Detectors:

  • Radar
  • Radio wave receivers
  • Audio sensors to “hear”
  • Optical sensors to see

These aren’t really a problem legally. The next category is where things get legally complicated fast.

 

Defenders:

  • Jammers
  • Spoofers (for GPS signals)
  • Hackers
  • Destroyers
    • Lasers
    • Electromagnetic Pulse
    • High Energy Microwave
    • Irritated Property Owners with Shotguns
  • Snaggers (a net carried under a drone, shot from an air cannon, or bolo/net shotgun shell projectile.)
  • Attack Birds such as Eagles. – I’m sure PETA will love this one.
  • Random Stuff: Spears, T-Shirts, Baseballs, Soccer Balls

Industries are Trying to Get Ahead of the Situation

baseball-stadium-tfr-smallThere are many industries that are very interested in using this counter drone technology:

  • Defense Sector
  • U.S. Government
  • Private Security
  • Sports Teams and Stadiums
  • Amusement Parks
  • Airports
  • Utilities
  • Chemical Manufacturing
  • Universities

 

Congress is Starting to Pay Attention

The U.S. Congress is interested in the area and has directed the FAA in Section 2206 of the FESSA of 2016 to “establish a pilot program for airspace hazard mitigation at airports and other critical infrastructure using unmanned  aircraft detection systems.” The FAA has since started doing a pathfinder program with some companies to use the technology at airports.

 

In December 2016, Congress passed the National Defense Authorization Act of 2017 (“NDAA”) which created a brand new section on unmanned aircraft in Title 10 of the United States Code and also directed the Secretary of Defense to “submit to the appropriate committees of Congress a report on the potential for cooperative development by the United States and Israel of a directed energy capability to defeat . . . unmanned aerial vehicles, . . .  that threaten the United States, deployed forces of the United States, or Israel.”

 

Section 1697 of the NDAA amended Title 10 of the United States Code by adding the following:

§ 130i. Protection of certain facilities and assets from unmanned aircraft

“(a) Authority.—Notwithstanding any provision of title 18, the Secretary of Defense may take, and may authorize the armed forces to take, such actions described in subsection (b)(1) that are necessary to mitigate the threat (as defined by the Secretary of Defense, in consultation with the Secretary of Transportation) that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset.

“(b) ActIons Described.—

(1) The actions described in this paragraph are the following:

“(A) Detect, identify, monitor, and track the unmanned aircraft system or unmanned aircraft, without prior consent, including by means of intercept or other access of a wire, oral, or electronic communication used to control the unmanned aircraft system or unmanned aircraft.

“(B) Warn the operator of the unmanned aircraft system or unmanned aircraft, including by passive or active, and direct or indirect physical, electronic, radio, and electromagnetic means.

“(C) Disrupt control of the unmanned aircraft system or unmanned aircraft, without prior consent, including by disabling the unmanned aircraft system or unmanned aircraft by intercepting, interfering, or causing interference with wire, oral, electronic, or radio communications used to control the unmanned aircraft system or unmanned aircraft.

“(D) Seize or exercise control of the unmanned aircraft system or unmanned aircraft.

“(E) Seize or otherwise confiscate the unmanned aircraft system or unmanned aircraft.

“(F) Use reasonable force to disable, damage, or destroy the unmanned aircraft system or unmanned aircraft.

“(2) The Secretary of Defense shall develop the actions described in paragraph (1) in coordination with the Secretary of Transportation.

“(c) Forfeiture.—Any unmanned aircraft system or unmanned aircraft described in subsection (a) that is seized by the Secretary of Defense is subject to forfeiture to the United States.

“(d) Regulations.—The Secretary of Defense and the Secretary of Transportation may prescribe regulations and shall issue guidance in the respective areas of each Secretary to carry out this section.

“(e) Definitions.—In this section:

“(1) The term ‘covered facility or asset’ means any facility or asset that—

“(A) is identified by the Secretary of Defense for purposes of this section;

“(B) is located in the United States (including the territories and possessions of the United States); and

“(C) relates to—

“(i) the nuclear deterrence mission of the Department of Defense, including with respect to nuclear command and control, integrated tactical warning and attack assessment, and continuity of government;

“(ii) the missile defense mission of the Department; or

“(iii) the national security space mission of the Department.

“(2) The terms ‘unmanned aircraft’ and ‘unmanned aircraft system’ have the meanings given those terms in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).”.

 

The NDAA is a good first start but itself has flaws as pointed out in an article in Defense News, “[T]he NDAA definition of “covered facility or asset” is limited to those relating to the U.S. nuclear deterrent, U.S. missile defense, or the military space mission. While those are critical places to secure from drones, the authority to prevent such incursions should really apply to all military facilities located within the United States – that should be a first-order item for the House and Senate to address in the 115th Congress at the earliest opportunity.” This article also brought out a good point about counter drone technology needing to be cost effective.

 

However, Many Older Laws are Still in Place

Great – so the military can go Rambo on the drones. But what about everyone else?

 

Here is the problem, there are a bunch of laws already in place which currently prohibits this counter drone technology from being used or creates liability when they are used.  Also, there are currently no bills seeking to change the federal statutes or any regulatory rulemaking being initiated by federal agencies to change the regulations. We have the Safety Act which can limit some liability, but it does NOT solve the situation.

 

Legal Issues Surrounding Counter Drone Technology

 

1. Communications Act of 1934

There are three sections that are problematic:

47 U.S.C Section 301 – Requires persons operating or using radio transmitters to be licensed or authorized under the Commission’s rules (47 U.S.C. § 301). So just to operate the jammer, it needs to be certified.

 

47 U.S.C. Section 302(b) – Prohibits the manufacture, importation, marketing, sale or operation of unlicensed jammers within the United States (47 U.S.C. § 302a(b)) ( Only exception is to the U.S. Government 302a(c)).  Yes, you read that right. Depending on how you market counter drone measures, you could be doing something illegal!  This section also prohibits the testing R & D of drone jammers on your own property. FCC laid the smack down on a Chinese company in 2014 with a fine of $34.9 million!  Yes, you guessed it, the FCC order cited 302(b). Hobbyking found out that the FCC is very serious about the marketing of unlicensed radio transmitters when they received this FCC order.

 

47 U.S.C. Section 333 – Prohibits willful or malicious interference with the radio communications of any station licensed or authorized under the Act or operated by the U.S. Government (47 U.S.C. § 333). I think Amazon is wisely planning for the future when they filed for a technology patent designed to allow their drones to fly if jamming is taking place. The jamming could be illegal or legal but we know it will be happening in the future. People will take things into their own hands and might start creating illegal drone jamming equipment as a means of “self-help.”

 

2. FCC Regulations

47 C.F.R. Section 2.803 – prohibits the manufacture, importation, marketing, sale or operation of these devices within the United States (47 C.F.R. § 2.803)  Section 2.807 – provides for certain limited exceptions, such as the sale to U.S. government users (47 C.F.R. § 2.807)  The FCC regulations are basically echoing the federal statutes that were created. This means Congress has to either make some exceptions to the Communications Act of 1934 AND nullify or amend these regulations OR just change the underlying statute and leave it to the FCC to start the rulemaking process to repeal this regulation.

 

3. The United States Criminal Code 

 

18 U.S.C. Section 1362 – prohibits willful or malicious interference to U.S. government communications; subjects the operator to possible fines, imprisonment, or both. This could be used to apply to GPS jamming.

 

18 U.S.C. Section 1367(a) – prohibits intentional or malicious interference to satellite communications; subjects the operator to possible fines, imprisonment, or both.This could also be used to apply to GPS jamming.

 

18 U.S.C.  Section 32 – Destruction of aircraft or aircraft facilities: “(a) Whoever willfully— (1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce;” . . .  “shall be fined under this title or imprisoned not more than twenty years or both.” This applies to the lasers, shotguns, and my all time favorite, Russian spear thrower.

 

18 U.S.C. Section  2511 says, “ (1) Except as otherwise specifically provided in this chapter any person who— (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication[.]”

 

18 U.S.C.  Section 1030 says, “(a) Whoever . . .  (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . (C) information from any protected computer[.]” This one applies to the hackers.

 

4. Drone Jamming Can Affect More than the Drone

On October 26, 2016, the FAA sent out a letter to airports because “Recently, technology vendors contacted several U.S. airports, proposing to conduct demonstrations and evaluations of their UAS detection and counter measure systems at those airports. In some cases, the airport sponsors did not coordinate these assessments and demonstrations with the FAA in advance. It is important that federally obligated airports understand that the FAA has not authorized any UAS detection or counter measure assessments at any airports other than those participating in the FAA’s UAS detection program through a CRDA, and airports allowing such evaluations could be in violation of their grant assurances.”  The letter went on to say, “Unauthorized UAS detection and counter measure deployments can create a host of problems, such as electromagnetic and Radio Frequency (RF) interference affecting safety of flight and air traffic management issues.”

 

Additionally, the American Radio Relay League sent the FCC a warning letter about video transmitters being sold that operate between 1,010- 1,280 MHz beyond legal limits (~  6 times the legal limit). The letter said, ““Of most concern is the capability of the devices to cripple the operation of the [air traffic control] secondary target/transponder systems[.]” The problem is that one of the frequencies listed can be legally used for amateur radio operations but the rest cannot. This means someone can purchase this equipment and operate it on frequencies not allowed. What operates in that range?

  • TACAN /DME
  • Air Traffic Control Radar Beacons
  • Mode S for Transponders
  • TCAS Air Route Surveillance Radars
  • GPS
  • GLONASS L1

This adds another layer of difficulty to the mix as you might need to jam frequencies that are being used by other industries because some drone transmitters allow for it.

 

So jamming drones near airports can cause problems as well as jamming certain frequencies that certain radio transmitters can use that aviation also uses.

 

Knowing this, now we have another criminal statute in play! 49 U.S.C  Section 46308 says, “A person shall be fined under title 18, imprisoned for not more than 5 years, or both, if the person—(1) with intent to interfere with air navigation in the United States, exhibits in the United States a light or signal at a place or in a way likely to be mistaken for a true light or signal established under this part or for a true light or signal used at an air navigation facility; . .  (3) knowingly interferes with the operation of a true light or signal.”

 

5. State Law

The states have also made some of these counter drone technologies illegal!  States have anti-hacking laws, anti-messing with aircraft laws, etc.  Worse yet, these laws are all over the place with how broad they are, their safe harbors/exemptions, and their punishments.  Basically, what is said in this article x 50 states.

 

6. Civil Lawsuit for Damages

If you violated one of the above crimes, you have potential liability from a civil lawsuit. You can get sued for negligence if you are the proximate cause of an injury by breaching a duty.  Your duty is to not commit crimes. (duh) The legal term is negligence per se. So if someone gets hurt because you committed that crime, and they were in the protected class of people the criminal statute was attempting to protect (great point to argue over in the lawsuit), and you were the proximate cause of the injury, you can be liable.

 

And remember the guys listed above who are interested in this?  (Amusement parks, airports, chemical plants, utilities, etc.) They are prime targets for lawsuits and might get listed as a named defendant in a lawsuit.

 

7.   Aviation Statutes & Regulations

If you just took control over the drone, now YOU are the pilot in command and will need a remote pilot certificate!  See 14 CFR § 107.12; see also §107.19(a).

 

If the drone operator was required to obtain an authorization and waiver to fly at that location and you take control of the drone, now YOU have to have a waiver and/or authorizations to fly in that area!

 

 

Conclusion:

As you can see, there are many legal issues surrounding this area which makes the creation, testing, marketing, and using of counter drone technology problematic.

 

There are ways that the liability can be lessened, but it cannot be completely removed. Congress and the federal agencies are going to need to start creating regulations that allow for the operation of the equipment in the U.S.  Additionally, there is going to be a need for some preemptive language in a future bill that can unclutter this area regarding state laws because I think it is not feasible to have all 50 states attempt to modify their respective laws to accommodate counter drone technology.

 

Are these all the laws? I don’t know. I stopped looking because I just kept finding an increasing amount of legal issues.

 

I fear, however, that Congress will not move on this quickly, and neither will the agencies. I believe what laws and regulations do come out will most likely be, as the old legal adage, written in blood.

 


How to Get Your FAA Part 107 Drone Pilot License (1st-Time & Current Pilots)

drone-pilot-license-part-107-checklistThis page is a how-to guide on getting your Part 107 remote pilot certificate which has also been called all sorts of things such as a drone license, commercial drone license, UAV certificate, drone permit, drone pilot license, etc.

 

The correct term is remote pilot certificate, but throughout this article I will be referring to the remote pilot certificate and drone pilot license interchangeably.

 

This guide is based upon my knowledge as a current FAA certificated flight instructor (CFI & CFII) and aviation attorney. This page is in the question and answer format.

 

Do You Have to Have a Pilot License’s to Fly a Drone Commercially?

Yes, but it is NOT one of the expensive manned aircraft pilot licenses most people think about. You only need the Part 107 remote pilot certificate to operate your drone commercially or for a government purpose.

 

Does My Business Have to Obtain a Remote Pilot Certificate to Use Drones?

No, only individuals can obtain this certificate. However, businesses can obtain waivers or authorizations and allow their remote pilots to fly under those. There must be a remote pilot in command for each non-recreational flight and they must posses a current remote pilot certificate.

 

Why Is It Called a Remote Pilot Certificate and Not a Drone Pilot License?

The term “pilot license” is what is used commonly to describe FAA airmen certificates. The FAA certificates aircraft, mechanics, airmen, remote pilots, etc., they don’t license.  For non-recreational drone operators, the proper term is a remote pilot certificate. These certificates are being issued with a small unmanned aircraft rating which means he could only operate a drone that is under 55 pounds. I foresee the FAA adding ratings onto the remote pilot certificate for certain types of operations such as over 55 pound  operations, night, beyond visual line of sight, etc.

 

What Happens If I Fly the Drone Commercially Without a Remote Pilot Certificate?

You could get fined for each regulation you are violating under Part 107. The FAA has been prosecuting drone operators. The previous fine per violation was $1,100, but it has recently gone up to $1,414 per violation. You could be violating multiple regulations per flight. If you land and then take off again, that is 2x the number of fines since you are breaking the same regulations again on the second flight. Now you understand why Skypan ended up with a $1.9 million aggregate fine. They later however settled with the FAA for $200,000.

 

How Can I Obtain the Remote Pilot Certificate?

You have two ways:

(1) Pass the remote pilot initial knowledge exam, submit the information onto IACRA,  pass the TSA background check, & receive your remote pilot certificate electronically; or

(2) If you are a current manned aircraft pilot, take the free online training course from the FAA, submit your application on IACRA, receive your remote pilot certificate electronically.

Each method has different steps from the other. Keep reading below for super detailed step-by-step instructions for EACH of these methods.

 

commercial drone pilot licenseI’m Brand New. What are the Steps to Obtaining a Remote Pilot Certificate?

You’ll have to take the remote pilot initial knowledge exam at a knowledge testing center. Note: if you took a test on the FAA’s website and received a certificate like what is on the right, this is NOT a Part 107 initial knowledge test for new pilots. The certificate to the right is from the online training course which is only for current manned aircraft pilots transitioning over to drones.

 

Who Can Take the Part 107 Remote Pilot Exam?

To obtain your drone pilot license you must:

  • Be at least 16 years old
  • Be able to read, speak, write, and understand English (exceptions may be made if the person is unable to meet one of these requirements for a medical reason, such as hearing impairment)
  • Be in a physical and mental condition to safely operate a small UAS
  • Pass the initial aeronautical knowledge exam at a FAA-approved knowledge testing center

 

If You Are New, Here Is Your Immediate Flight Plan to Obtain Your Remote Pilot Certificate.

Do these steps in the exact order of how they appear in this list:

  1. Figure out how far you need to schedule the test.
    • Take an honest inventory of the hours you have PER DAY.
    • Multiply the hours by 5. (You are most likely going have things that pop up during the week and you’ll need a day to rest.)
    • Now you have an idea of how many hours per week you can dedicate to studying.
    • You are most likely going to read 1 page every 2 minutes because it is technical reading.  The study guide has a total of 406 pages to read.  406 pages x 2 minutes = 812 minutes of reading (13.53 hours). Keep in mind you are not a robot so you are going to have to go back over and study certain areas to retain the information.
    • For example, if you can set aside 5 hours a week to study, this mean in roughly 2.5 weeks you would have completed all of the reading. I would tack on 2 weeks extra of studying. This gives you an idea of how far out you need to schedule your test.
  2. Immediately schedule a time to take the FAA Part 107 knowledge test at one of the testing sites. There are only two companies that offer the Part 107 exam: CATS and PSI/Lasergrade.
    • Figure out which test site you want to take the test at. There are currently 696 of these centers around the world. CATS does a $10 off discount for current AOPA members. If you want to become a current AOPA student member, you can sign up here. 
    • Find out the site ID so you know who to call. LAS = PSI/ Laser Grade  ABS = CATS
    • Test option 1: CATS is registering and taking appointments for the test!
      • CATS – call and get an appointment for a date.
        • This is their main testing number. Call 1-800-947-4228 and press 3. Monday through Friday
          5:30 AM PST to 5:00 PM PST Saturday & Sunday
          7:00 AM PST to 3:30 PM PST
    • Test option 2: PSI/Lasergrade(August 13) Is also registering people for the Part 107 initial knowledge exam
      •  Call 1-800-211-2754 or  1-800-733-9267 to register for your test.
  3. Start studying. I created free 100+ page Part 107 test study guide. The study guide has the material the FAA suggested you study, but I added essential material they left out. It also comes with 41 sample Part 107 exam questions that are answered and explained. Think of it as your “personal trainer” for Part 107 to get you into a lean mean testing machine. You can read the Part 107 test study guide online or you can sign up for the free drone law newsletter below and be able to download the PDF to study on the go.
  1. Now that you know what the rules are, make a business plan for operations under Part 107. Go back and skim over the Part 107 Summary and read about Part 107 waivers (COAs). You might want to branch out into non-107 types of operations.
  2. Once you have figured out what types of industries and operations you plan on doing, you should spend this time:
    • Building or updating your website.
    • Buying the aircraft or practicing flying your current aircraft.
    • Obtaining insurance for the aircraft that will perform the operations.
    • Finding an attorney for each of the particular areas of law listed below. You may not need the lawyer right away but you have time to calmly make decisions now as opposed to rapidly making decisions in the future when your business is growing. You won’t have time in the future as you do now. Put their numbers in your phone. Ideally, you should have a retainer/ billing relationship set up to get answers rapidly.
      • Business / tax – (Preferably both)
      • Aviation – Contact me to get things set up. Remember. I’m not your attorney until you sign an attorney-client agreement!)
      • Criminal – (in case you get arrested because of some drone ordinance you stumbled upon).
  1. Take the Part 107 initial knowledge test.
  2. Complete FAA Form 8710-13:
    • By filing out the paper based version of FAA Form 8710-13 and mailing it off  OR
    • Online for a remote pilot certificate (FAA Airman Certificate and/or Rating Application) using the electronic FAA Integrated Airman Certificate and/or Rating Application system (IACRA).
        • Login to IACRA with your username and password. If you don’t remember them, follow the “Forgot Username or Password” link.
        • Applicant Console
          • From the Applicant Console, you can start new applications and view any existing applications. Click Start New Application
          • Select ‘Pilot’ from the Application Type dropdown list. This will now show the different types of pilot certificates IACRA has available.
          • Click on Remote Pilot. Starting a Remote Pilot Application
        • The Application Process page will open, and the Personal Information section will be open. This section will be prepopulated with the information you entered when you registered. If no changes are needed, click the green Save & Continue button in the bottom of this section.
        • The Supplementary Data section will open. Answer the English Language and Drug Conviction questions. If you would like to add comments to you application, you can do so here. Click Save & Continue.
        • The Basis of Issuance section will open.
          • Enter all the information related to your photo ID. A US passport or US driver’s license is preferred.
          • Enter the knowledge test ID in Search box. PLEASE NOTE : It can take up to 72 hours after you take your knowledge test before it is available in IACRA. When you find the test, click the green Associate Test button. Now click Save & Continue.
        • The Review and Submit section will open.
          • Answer the Denied Certificate question.
          • Summary information info will be displayed.
          • You must view the Pilots Bill of Rights, Privacy Act and Review your application before you can continue.
        • Sign and Complete
          • You should now sign the Pilots Bill of Rights Acknowledgement form.
          • Sign and complete your application.
          • Your application is now complete and will be automatically sent to the Airman Registry.
          • After 2-4 days, your temporary certificate will be available in IACRA. You will also receive an email reminder.
          • Your permanent certificate will arrive by mail.

How can I Study for the Part 107 Knowledge Test?

I created a FREE 100+ page Part 107 test study guide which includes all the information you need to pass the exam. Let me repeat. ALL the information needed to pass the test is in this study guide. Additionally, the study guide comes with  6 “cram” summary pages, 41 sample Part 107 exam questions that are answered and explained, and 24 super hard brand-new practice questions NO ONE ELSE HAS.

There are many paid training sources out there. But I do not know of any of them that are FAA certificated flight instructors AND also practicing aviation attorneys. Be skeptical of most of the 107 courses out there as some of them had to hire FAA certificated flight instructors to teach the material. This implicitly means they do NOT know the subject. Did the flight instructor they hire edit the material or just merely be recorded. In other words, what quality assurance do you have that the paid 107 course creators didn’t botch something up in the post-production?

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  • 100 + pages.
  • 41 FAA practice questions with answers.
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"I just want to say THANK YOU for creating your site and explaining the 40 Sample Questions. I just took the remote pilot exam on 2/28/2017 and passed it with 93%!" -Peter

"[U]sed your Part 107 study guide extensively. Proud to say that I passed with 88% on August 31st[.]" -David

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Additionally, here is a list of Part 107 articles for you to study further:

How Long Does It Take to Receive My Remote Pilot Certificate After I Submit on IACRA?

If you have a pilot certificate and took the initial knowledge exam, you have already passed a TSA security threat assessment background check when you obtained your manned aircraft pilot certificate. This means you will have your remote pilot certificate faster than someone brand new.

If you are brand-new, I canNOT estimate because (1) the TSA’s backlog of pending IACRA applications seems to be growing and (2) I don’t know all the factors the FAA and TSA are looking at now.

 

I Made Some Mistakes in My Past. What Does the TSA and FAA Look For?

I don’t know all the factors. I can say the FAA really does not like alcohol and drug related crimes.  They also don’t like a breath refusal.

§107.57   Offenses involving alcohol or drugs.

(a) A conviction for the violation of any Federal or State statute relating to the growing, processing, manufacture, sale, disposition, possession, transportation, or importation of narcotic drugs, marijuana, or depressant or stimulant drugs or substances is grounds for:

(1) Denial of an application for a remote pilot certificate with a small UAS rating for a period of up to 1 year after the date of final conviction; or

(2) Suspension or revocation of a remote pilot certificate with a small UAS rating.

(b) Committing an act prohibited by §91.17(a) or §91.19(a) of this chapter is grounds for:

(1) Denial of an application for a remote pilot certificate with a small UAS rating for a period of up to 1 year after the date of that act; or

(2) Suspension or revocation of a remote pilot certificate with a small UAS rating.

 

§107.59   Refusal to submit to an alcohol test or to furnish test results.

A refusal to submit to a test to indicate the percentage by weight of alcohol in the blood, when requested by a law enforcement officer in accordance with §91.17(c) of this chapter, or a refusal to furnish or authorize the release of the test results requested by the Administrator in accordance with §91.17(c) or (d) of this chapter, is grounds for:

(a) Denial of an application for a remote pilot certificate with a small UAS rating for a period of up to 1 year after the date of that refusal; or

(b) Suspension or revocation of a remote pilot certificate with a small UAS rating.

 

Eligibility Requirements for Current Manned Aircraft Pilots to Obtain Their Part 107 Drone Pilot License.

pilotheadshotYou may be either a sport, recreational, private, commercial, or air transport pilot. You CANNOT be a student pilot. Additionally, the pilot must be current according to 14 C.F.R. § 61.56. This can be done multiple ways but the most popular is they have a sign off in their logbook saying they have completed their biannual flight review (BFR).

 

For some, getting a BFR can be much more expensive than taking the Part 107 initial knowledge exam which costs $150. You can be a non-current pilot and take the initial knowledge exam, then submit your application on IACRA. You’ll receive your temporary drone pilot license (remote pilot certificate) electronically so many days later. If this is your situation, then do the “first-time pilot” steps above.

 

Flight Plan for a Current Manned Aircraft Pilot to Obtain the Remote Pilot Certificate:

  1. Read the 3-page Part 107 Summary.
  2. Go, download, and read the latest edition of Part 107. The regulations start on page 590. Anytime you have a question about something, make a note and keep reading. The large majority of the whole document is the FAA repeating the comments made to the NPRM and the FAA’s response and rational for the regulation. Treat it like the FAA’s commentary on the individual regulations. Anytime you have an issue with a particular word or regulation, use the ctrl + f function in Adobe to find the relative sections that discuss the key term you are interested in.
  3. Read the Advisory Circular to Part 107 Notice that the advisory circular has parts that parallel the parts in Part 107 to help answer any questions you have about the regulations.

Drone Pilot License Application Process:

  1. Complete the online training course “Part 107 small Unmanned Aircraft Systems (sUAS) ALC-451” available on the FAA FAASTeam website.
  2. Complete FAA Form 8710-13 (FAA Airman Certificate and/or Rating Application for a remote pilot certificate)
    1. Figure out if you want to do it online at IACRA or by paper (the paper form you print out is located here).
    2. Either way, you are going to need to validate applicant identity on IACRA or 8710-13.
      • Contact a FSDO, a FAA-designated pilot examiner (DPE), an airman certification representative (ACR), or a FAA-certificated flight instructor (CFI) to make an appointment to validate your identity. I would suggest doing this with the FSDO because the inspector can give you a temporary certificate at the same time! Look up your local FSDO and make an appointment. Note: FSDO’s almost always do not take walk-ins.  You can also go to a DPE but I think it is better to meet your local FSDO employees because they are the ones that will be doing the investigations in your area.
      • Present the completed FAA Form 8710-13 along with the online course completion certificate or knowledge test report (as applicable) and proof of a current flight review.
      • The completed FAA Form 8710-13 application will be signed by the applicant after the FSDO, DPE, ACR, or CFI examines the applicant’s photo identification and verifies the applicant’s identity.
        • The identification presented must include a photograph of the applicant, the applicant’s signature, and the applicant’s actual residential address (if different from the mailing address). This information may be presented in more than one form of identification.
        • Acceptable methods of identification include, but are not limited to U.S. drivers’ licenses, government identification cards, passports, and military identification cards (see AC 61-65 Certification: Pilots and Flight and Ground Instructors)
    3. The FAA representative will then sign the application.
  1. An appropriate FSDO representative, a FAA designated pilot examiner (DPE), or an airman certification representative (ACR) will issue the applicant a temporary airman certificate (a CFI is not authorized to issue a temporary certificate; they can process applications for applicants who do not want a temporary certificate). The CFI will submit the information on IACRA and you’ll receive your temporary electronically so many days later.
  2. A permanent remote pilot certificate (drone pilot license) will be sent via mail once all other FAA internal processing is complete.

If you need legal services or want to set up enterprise operations to get all your in-house pilots certified, fleet and pilot management, or crew training, contact me at to help with those needs. I work with many other certified aviation professionals to help large companies integrate drones into their operations to be profitable and legal. When looking for aviation law help, don’t hire a poser – hire an attorney who is a pilot. 

Want to Continue Learning About Part 107?

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  • 100 + pages.
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  • 24 exclusive sample questions.
  • 6 "cram" pages.

"I just want to say THANK YOU for creating your site and explaining the 40 Sample Questions. I just took the remote pilot exam on 2/28/2017 and passed it with 93%!" -Peter

"[U]sed your Part 107 study guide extensively. Proud to say that I passed with 88% on August 31st[.]" -David

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11 Big Problems with the FAA’s Mandatory Drone Registration

  • The DOT’s Announcement Can Be Viewed Here.
  • The FAA’s request for comments is here.
  • The underlying FAA report of drone sightings is located here.
  • The Academy of Model Aeronautics responded to the report with an analysis located here.

Second Update: An individual took the time and responded to this post. I posted my reply at the bottom.

 

Update: Just to clarify, my point is not to “troll” the FAA, I think geofencing will produce far better results by preventing problems as opposed to pointing to who might have done it after something has happened. The uneducated new recreational flyers are the ones I believe causing the problems. Having manufacturers voluntarily “lock” the drones until an unlock access code is provided after an introductory ground school would produce better results. One way to sweeten the pot is not just provide “how to fly safely” video tutorials but also “how to get that awesome shot” tutorials. Education, not enforcement is a better strategy. If anyone higher-up in the FAA is reading this, please contact me so I can help you promote safety in the national airspace. 🙂

 

Note: The FAA DID publish their drone registration regulations. I wrote an in-depth article on Why the FAA’s Drone Registration Requirements Are ILLEGAL

 

Oklahoma City is where aircraft registration gets processed. The aircraft registration process still involves carbon copy forms, which must be filled out perfectly and sent in for an aircraft to be registered. They are extremely, I mean extremely, picky on registration based upon my experience. (If you need help with registration, contact me.) If the paperwork is completed correctly, they will send you back an “N” registration which is required to be displayed on the aircraft. The reason for the “N” is the aircraft is tied to the country it operates in. (Think of license plates where the state is listed on the plate.) N = United States, C or CF = Canada, XA, XB, or XC = Mexico, B= China, JA= Japan, SU= Egypt, etc. The complete list is here at 4-1-1.  So N12345 is a U.S. registered aircraft while XA12345 is a Mexican registered aircraft.

 

Current Registration Requirements for Drones:

Commercial drone operators are required to obtain a 333 exemption or fly under Part 107. The exemptions being given out say, “All aircraft operated in accordance with this exemption 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.” This is in addition to the manned aircraft which are registering with the FAA.  This is currently ONLY for commercial drones while recreational drones are not required to register their drones.

 

Proposed Registration:

“The Department of Transportation is reviewing whether the FAA has the authority to require drones be registered at their point of sale, Transportation Secretary Anthony Foxx told CBS News on Friday.”[1]

 

Furthermore, Senator Feinstein’ s “Consumer Drone Safety Act’’ requires “that a consumer drone be detectable and identifiable to pilots and air traffic controllers, including through the use of an identification number and a transponder or similar technology to convey the drone’s location and altitude[.]”[2]

 

Moreover, Cory Booker’s Commercial UAS Modernization Act prohibits the operations of commercial small unmanned aircraft “unless the owner has registered the aircraft under section 3(a) of the Commercial UAS Modernization Act.”[3]

 

In the FAA’s explanations in the Notice of Proposed Rulemaking (“NPRM”) regarding unmanned aircraft it said, “The FAA’s statute, [49 U.S.C. 44101], prohibits the operation of an aircraft unless the aircraft is registered. Pursuant to this statutory prohibition, this proposed rule would require small unmanned aircraft to be registered with the FAA using the current registration process found in 14 CFR part 47.” The NPRM later showed the proposed rule, “No person may operate a civil small unmanned aircraft system for purposes of flight unless[,] . . . [t]he small unmanned aircraft being operated has been registered with the FAA . . . .”[4]

 

Just today NBC announced, “The federal government will announce a new plan requiring anyone buying a drone to register the device with the U.S. Department of Transportation[.]”[5] Just FYI, the DOT supervises the FAA which explains why they are involved.

 

The clear trajectory of all this is that commercial drone aircraft will be required to be registered and possibly also recreational aircraft. This presents interesting problems so let’s dive into the facts.

FREE Drone Pilot License Study Guide!

  • 100 + pages.
  • 41 FAA practice questions with answers.
  • 24 exclusive sample questions.
  • 6 "cram" pages.

"I just want to say THANK YOU for creating your site and explaining the 40 Sample Questions. I just took the remote pilot exam on 2/28/2017 and passed it with 93%!" -Peter

"[U]sed your Part 107 study guide extensively. Proud to say that I passed with 88% on August 31st[.]" -David

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Sales:

Bloomberg indicated that “Amazon is selling more than 10,000 drones a month[.]”[6] 3DR “is expected to top $40 million in sales in 2015, which would roughly translate to about 53,000 units”[7] and in 2014, “DJI sold about 400,000 units–many of which were its signature Phantom model–and is on track to do more than $1 billion in sales this year, up from $500 million in 2014.”[8]

 

On top of the drone sales, manned aircraft have been sold and already use some of the N numbers. For 2012, it was estimated that there were 209,034 aircraft in general aviation.[9]

 

The Proposed Laws and Regulations Intersecting with the Forecasted Sales.

Let’s get into the math. Let’s assume that all drones have to be registered. How many different combinations are possible?

 

“All U.S. civil aircraft registration numbers are prefixed by an N. The registration number, apart from the N prefix, is made up of one to five symbols, the last two of which may be alphabetical. This alphabetical suffix must be preceded by at least one numerical symbol. The lowest possible number is N1. A zero never precedes the first number. For example: N1 through N99999, all symbols are numeric. N1A through N9999Z, single alphabetical suffix. N1AA through N999ZZ, double alphabetical suffix. Note: To avoid confusion with the numbers zero and one, the letters O and I are never used as alphabetical suffixes.”[10]

 

This is how the math works out. Yes, I had to go to my friend who is an actuary to help with this. 🙂 Here is what he said:

For 1 symbol: 1 through 9 can be used so= 9
For 2 symbols: (1 thru 9) and (digits 0-9 and 24 letters)= 9×34=306

For registration numbers of length three or more we have to break it into cases:
Case I: The next-to-last symbols is a NUMBER
Case II: The next-to last symbol is a LETTER
And we remember the rule that a letter can not precede a number.

For 3 symbols:
Case I: (1 thru 9) and (digits 0-9) and (digits 0-9 and 24 letters)= 9x10x34=3060
Case II: (1 thru 9) and (24 Letters) and (24 letters)= 9x24x24=5184

For registration numbers of length 4 or 5 we remember that only the last two symbols can be letters

For 4 symbols:
Case I: (1 thru 9) and (digits 0-9) and (digits 0-9) and (digits 0-9 and 24 letters)= 9x10x10x34= 30600
Case II: (1 thru 9) and (digits 0-9) and (24 Letters) and (24 letters)= 9x10x24x24=51840

For 5 symbols:
Case I: (1 thru 9) and (digits 0-9) and (digits 0-9) and (digits 0-9) and (digits 0-9 and 24 letters)= 9x10x10x10x34 = 306000
Case II: (1 thru 9) and (digits 0-9) and (digits 0-9) and (24 Letters) and (24 letters)= 9x10x10x24x24= 518400

 

Adding up all possibilities gives 915,399 total possible registration numbers.

 

The reason for the 34 is 10 numbers + 25 letters. The letters I and O cannot be used because they can be confused with the numbers 1 and 0.

 

Further compounding this problem is “A Certificate of Aircraft Registration issued under this paragraph expires three years after the last day of the month in which it is issued.” 14 CFR 47.40(a)(3).

 

Moreover, it is easier to register a drone than transfer registration. If you crash the drone, you’ll have crazy headaches trying to transfer registration of the N-number to the new drone as opposed to just registering a new N number.

 

At this pace, we are going to run out of N numbers in the future.

Proposed Solutions

  • Open up the first 3 spaces to allow also the use of letters. (The FAA must go through the rule making process for this but it is unclear how this would work with the FMRA).
  • Require re-registration of a drone every year. (Currently it is every 3 years as per regulation. This needs to be changed via the rule making process but still the FMRA might cause problems.)
  • Make the N number registration transfer easy so people just don’t keep registering drones. (This can be solved by some type of internet portal as opposed to the difficult paper process now.
  • Add an additional 6th space or 7th (still must go through the rule making process)

next


Why the FAA’s Drone Registration Requirements Are ILLEGAL

This article lays out an in-depth discussion as to the three big reasons why the FAA’s FAR Part 48 drone registration regulations are illegal and should be struck down by a court. The registration regulations are currently being challenged in the D.C. Circuit Court of Appeals by John Taylor and I am assisting him with the lawsuit.

 

Key Point of the Rule:

Persons owning small unmanned aircraft, whether intended to be used as model aircraft or as other than model aircraft, are required to register those aircraft with the FAA[.]” “This rule applies to all owners of small unmanned aircraft which weigh more than 0.55 pounds and less than 55 pounds on takeoff.” It goes into effect Dec 21, 2015. If you do not comply, you could face civil penalties up to $27,500 and criminal penalties of $250,000[1] and/or imprisonment up to 3 years.[2]

 

While the electronic means of registration seems great and would be a wonderful thing for my commercial drone clients, the issue is NOT with the proposed regulations but (1) the apparent direct violation of Section 336 of the FMRA, (2) the improper use of the “good cause” bypass exception to the Administrative Procedures Act, and (3) the lack of statutory authority.

 

 

1. The Violation of Section 336

Section 336 of the FAA Modernization and Reform Act of 2012 says:

IN GENERAL.—Notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft[.]” The key word here is “any” and the major take away is that it prevents the promulgation of new rules or regulations, not the using of already existing regulations (i.e. Part 47 and § 91.203).The FAA believes that model aircraft operators are now subject to 91.203 which requires the drone to be registered prior to operation in the national airspace.

 

FAA responded to the Section 336 prohibition allegation in the registration rule document:

The FAA disagrees with the comments asserting that the registration of model aircraft is prohibited by section 336 of Public Law 112-95. While section 336 bars the FAA from promulgating new rules or regulations that apply only to model aircraft, the prohibition against future rulemaking is not a complete bar on rulemaking and does not exempt model aircraft from complying with existing statutory and regulatory requirements. As previously addressed, Public Law 112-95 identifies model aircraft as aircraft and as such, the existing statutory aircraft registration requirements implemented by part 47 apply.

 

This action simply provides a burden-relieving alternative that sUAS owners may use for aircraft registration. Model aircraft operated under section 336 as well as other small unmanned aircraft are not required to use the provisions of part 48. Owners of such aircraft have the option to comply with the existing requirements in part 47 that govern aircraft registration or may opt to use the new streamlined, web-based system in part 48.”’[3]

Alternative or a New Regulation?

If this is a “burden-relieving alternative[,]” why does the rule seeks to amend the non-alternative current rules in Part 1, § 45.1, § 47.2, § 47.3, § 47.7, § 91.203, § 375.11, and § 375.38? This rule is a new rule coupled with multiple regulations being amended so as to harmonize the new rule in Part 48.

 

One key point is that this is being codified in Part 48 of the Code of Federal Regulations which brings us squarely back to the issue of the prohibition on the creation of rules or regulations.

What Does Section 336 Actually Prohibit?

If it is “not a complete bar on rulemaking[.]” what is it a bar actually on? It has to be a bar on something and it would be completely ludicrous to interpret it as a bar on nothing. The FAA’s interpretation is that it is a bar on “some” rulemaking, just not “any.” The scope of “some” is completely unclear.

 

FREE Drone Pilot License Study Guide!

  • 100 + pages.
  • 41 FAA practice questions with answers.
  • 24 exclusive sample questions.
  • 6 "cram" pages.

"I just want to say THANK YOU for creating your site and explaining the 40 Sample Questions. I just took the remote pilot exam on 2/28/2017 and passed it with 93%!" -Peter

"[U]sed your Part 107 study guide extensively. Proud to say that I passed with 88% on August 31st[.]" -David

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“Any” = “Some?”

Context is king. “Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.[4] We must not seek the FAA’s interpretation of this statute, but Congress’ meaning of the FMRA.

 

Let’s look at the word “any” used elsewhere in Sections 331-336 of the FMRA and replace “any” with the FAA’s interpretation of “some” and see what happens.

“[E]nsure that any [some] civil unmanned aircraft system includes a sense and avoid capability[,]”[5]

“[I]ncorporation of the plan into the annual NextGen Implementation Plan document (or any [some] successor document) of the Federal Aviation Administration.”[6]

IN GENERAL.—Notwithstanding any [some] other requirement of this subtitle, and not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 332 of this Act or the guidance required by section 334 of this Act.”[7]

“[W]hich types of unmanned aircraft systems, if any [some], 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[,]”[8]

“[O]utside of 5 statute miles from any [some] airport, heliport, seaplane base, spaceport, or other location with aviation activities.”[9]

IN GENERAL.—Notwithstanding any [some] other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies, including this subtitle, the Administrator of the Federal Aviation Administration may not promulgate any [some] rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft,”[10]

“[T]he aircraft is operated in a manner that does not interfere with and gives way to any [some] manned aircraft[.]”[11]

 

Using the redefined “any” causes havoc on the reading of the text. The context of all those sections using “any” used it just as if they would have used the word “all.”

 

Though not as contextually persuasive as Sections 331-336, 14 CFR § 1.3 Rules of Construction differs from the FAA’s interpretation, ‘“a person may not * * *” mean[s] that no person is required, authorized, or permitted to do the act prescribed[.]”’ Why did I bring up § 1.3? Because that rule of construction applies to 91.203 which is going to be the regulation cited against individuals flying their drones unregistered, “no person may operate a civil aircraft unless it has within it the following: The FAA’s interpretation of Section 336 “may not promulgate any[,]” meaning some rules or regulations, is different than their interpretation of 91.203 “no person may[,]” meaning all persons, which is currently being used against one individual, Skypan, and will be used against any future individuals who choose to not register their drone prior to operation.

 

Does Any Mean Any Any Time?

The Second Federal Circuit Court of Appeals has said:

As the Supreme Court has frequently observed, use of the word “any” in statutory text generally indicates Congress’s intent to sweep broadly to reach all varieties of the item referenced. See, e.g., United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (quoting Webster’s Third New International Dictionary 97 (1976) in concluding that, ‘[r]ead naturally, the word `any’ has an expansive meaning, that is, `one or some indiscriminately of whatever kind'”); accord HUD v. Rucker, 535 U.S. 125, 131, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002) (same); Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir.2006) (noting that “Congress made [the phrase at issue] even broader when it chose the expansive word `any’ to precede the list” (internal quotation marks omitted)). The Court most recently applied this principle in interpreting the phrase “`any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air'” in the Clean Air Act. Massachusetts v. EPA, ___ U.S. ___, 127 S.Ct. 1438, 1460, 167 L.Ed.2d 248 (2007) (quoting 42 U.S.C. § 7602(g)) (ellipsis and emphases in original). It concluded that “[o]n its face,” the quoted language “embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word `any.[12]

 

The United States Supreme Court has said:

‘[A]ny’ can and does mean different things depending upon the setting. Compare, e. g., United States v. Gonzales, 520 U. S. 1, 5 (1997) (suggesting an expansive meaning of the term “`any other term of imprisonment'” to include state as well as federal sentences), with Raygor v. Regents of Univ. of Minn., 534 U. S. 533, 542-546 (2002) (implying a narrow interpretation of the phrase ‘any claim asserted’ so as to exclude certain claims dismissed on Eleventh Amendment grounds). To get at Congress’s understanding, what is needed is a broader frame of reference, and in this litigation it helps if we ask how Congress could have envisioned the . . . clause actually working. . . . See, e. g., New Jersey Realty Title Ins. Co. v. Division of Tax Appeals of N. J., 338 U. S. 665, 673 (1950) (enquiring into ‘the practical operation and effect’ of a state tax on federal bonds).[13]

 

Contexts indicates that Congress practically intended that model aircraft would be free from the creation of rules or regulations. This is evidenced by sub-section (b) which says, “STATUTORY CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Administrator to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.”[14] The only thing in all of Section 336 that could even be read to limit the FAA is the language “may not promulgate[.]”

 

Buttressing that, sub-section (c) defines “model aircraft” more narrowly than the definition of unmanned aircraft in Section 331 which indicates that it is a “special” sub-classification of the broad classification of unmanned aircraft. This all points to Congress intending to mean any any time it is used in Section 331-336.

 

In conclusion, the United States Supreme Court, while acknowledging that any could mean different things, it is generally to be taken as a broad sweep of the category, unless context indicates otherwise. Furthermore, context indicates that sub-section (b) and (c) both look at (a) as providing something special that unmanned aircraft (non-model and public aircraft) do not get.

 

2. Good Cause Bypass Exception to the Administrative Procedures Act Requirements

5 U.S.C. § 553 says,

(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include—

(1) a statement of the time, place, and nature of public rule making proceedings;

(2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not apply—

(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

 

14 CFR § 11.11 echoes,

A final rule with request for comment is a rule that the FAA issues in final (with an effective date) that invites public comment on the rule. We usually do this when we have not first issued a [proposed rule] . . . , because we have found that doing so would be impracticable, unnecessary, or contrary to the public interest. We give our reasons for our determination in the preamble. The comment period often ends after the effective date of the rule. A final rule not preceded by an [proposed rule] is commonly called an ‘immediately adopted final rule.’

 

So unless the proposed regulation falls into the good cause bypass exception, it has to go through the rule making process required by Congress. It is ubiquitously called “notice and comment.” To make it simple, unless bypassed, the FAA must publish the proposed rule in the Federal Register, the public is given an opportunity to comment on it, the FAA must digests the comments and then publish a final rule. There are many steps involved that are beyond the scope of this article, but if you want more info, I wrote a chapter on the FAA rule making process for the American Bar Association book located here.

 

The green arrow is where Part 48 was with the registration task force’s proposal on November 21, 2015. The blue arrow is where the current Part 107 commercial rule is located that was started back in 2009 and was only just published as a proposed rule in February of 2015 and became a final rule in August 29, 2016. The red arrow is  where the current registration rule, Part 48, is located in the rule making process.  The point I’m making is it bypassed all that stuff in the middle.

FAA registration rule making process

FAA registration rule making process

 

 

The FAA can only do this if it can show that going the notice and comment route is either “impracticable, unnecessary, or contrary to the public interest.

 

The FAA acknowledges the comments of individuals saying this violates the APA in pages 156-159 and points us back to the preamble (page 11) of the document.

 

The FAA’s justifications for the good cause exception were not completely clear on which of the three justifications categories they fall into so I attempted to categorize them from pages 11-20. I was unclear as to where most of the “impracticable” justifications should go and made a good faith effort to represent the FAA’s position accurately because I’m assuming they didn’t throw in non-exception factual justifications.

  • Impracticable
    • “Immediate proliferation of new small unmanned aircraft that will be introduced into the NAS in the weeks ahead.”[15]
    • The Registration Branch can’t handle the influx of Part 47 registrations soon to come in by the FAA now requiring all drones over 250 grams to be registered prior to operation.[16]
    • Part 47 registration was not designed for drones.[17]
    • Part 47 registration will cost the FAA 775 million over the next 5 years.[18]
    • Waiting longer for the notice and comment is impracticable.[19]
  • Unnecessary
    • Drones are already considered aircraft and all aircraft are required to be registered.[20]
    • Congress has directed the FAA to ensure safety of aircraft and airspace.[21]
    • No one would object because it “relieves a significant number of owners from the burden of complying with the paper-based, time-consuming part 47 registration process.”[22]
  • Contrary to the Public Interest
    • FAA estimated 200,000 drones were operated in 2014 and we had 238 reports of potential unsafe drone operations. For 2015, 1.6 million will be sold.[23]
    • Individuals are commercially operating without authority.[24]
    • The FAA lists multiple stories on drone sightings.[25]
    • The FAA lists two tables of drone reports from 2014 and 2015.[26]
    • The FAA details 7 stories of drone reports.[27]
    • Commercial drone sales will “rapidly accelerate” to 11 million by 2020.[28]
    • Many individuals are new and have no clue of the national airspace.[29]

 

Governing Authority

We are going to look at case law where applicable that will explain the good cause exception from 5 U.S.C. 553 and we will also look to the Federal Aviation Regulations, Part 11, which “applies to the issuance, amendment, and repeal of any regulation for which FAA (“we”) follows public rulemaking procedures under the Administrative Procedure Act (“APA”) (5 U.S.C. 553).[30]

 

This is an excerpt from my American Bar Association book chapter on FAA rule making which deals specifically with these areas. Keep in mind I’m not going through the footnotes and trying to correct all the supra’s.

 

Airworthiness Directives are subject to the rulemaking process as described elsewhere in this chapter. The FAA has an Airworthiness Directives Manual[31] which explains these three good cause exceptions that will now be discussed.

  1. When Notice and Comment is Impracticable

            “This exception can be used when an urgent and unsafe condition exists that must be addressed quickly, and there is not enough time to carry out Notice and Comment procedures without compromising safety.”[32] The manual goes on to say the urgency must be explained and the time to give individuals to comply with the AD must reflect the urgency.[33] “For example, it would make little sense to say immediate action is necessary to prevent a landing gear failure and then allow 60 days compliance time to resolve the unsafe condition.[34] Also, the AD should be issued quickly to be consistent with the determination of ‘impracticability.’”[35] In Air Transport Association of America vs. the Department of Transportation,[36] the FAA’s penalty enforcement action was vacated by the U.S. Supreme Court because:

 

[T]he FAA is foreclosed from relying on the good cause exception[, from the APA,] by its own delay in promulgating the Penalty Rules. The agency waited almost nine months before taking action to implement its authority under section 1475. At oral argument, counsel for the FAA conceded that the delay was largely a product of the agency’s decision to attend to other obligations. We are hardly in a position to second guess the FAA’s choices in determining institutional priorities. But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).[37]

 

  1. When Notice and Comment Is Unnecessary

 This type of direct final rule is in effect a “final rule with request for comments. [The FAA’s] reason for issuing [this type of] direct final rule without an NPRM is that [the FAA] would not expect to receive any adverse comments, and so an NPRM is unnecessary.”[38] The FAA plans “the comment period to end before the effective date” so if there are any adverse comments, it can withdraw the final rule and issue an NPRM.[39] If the FAA publishes a rule, but a legitimate adverse comment comes up, the FAA will publish in the Federal Register a notification of withdrawal, part or whole, of the previous direct final rule.[40]  The FAA can then either publish a new direct final rule with the comments taken into account or publish a NPRM.[41]

 

Other unnecessary situation are when: (1) no one in the U.S. would be affected by the regulation and (2) the FAA makes “minor corrections, clarifications, and editorial changes.”[42]

 

  1. When Notice and Comment Is Contrary To the Public Interest

Generally, this exception is coupled with either the impracticable or unnecessary exception. This exception’s purpose “is to excuse an agency from the Notice requirement if providing advance Notice would defeat the purpose of the agency action. For example, issuing advance Notice that the government is contemplating financial controls could cause public reactions so excessive that the financial system could be placed in jeopardy.”[43]

 

The Federal Circuit Court of Appeals for DC said,

Generally, the “good cause” exception to notice and comment rulemaking, see 5 U.S.C. § 553(b)(3)(B), is to be “narrowly construed and only reluctantly countenanced.” Tennessee Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C.Cir.1992) (quoting New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C.Cir.1980)). The exception excuses notice and comment in emergency situations, Am. Fed’n of Gov’t Employees v. Block, 655 F.2d 1153, 1156 (D.C.Cir.1981), or where delay could result in serious harm. See Hawaii Helicopter Operators Ass’n v. FAA, 51 F.3d 212, 214 (9th Cir.1995).[44]

 

Simply put, impracticable means you have no time (emergency), unnecessary means uncontested, and contrary to public interest is where the public would be harmed rather than benefited by the publication of the rule.

 

In light of the above, I will address the factual justifications for the bypass point by point.

 

Impracticable (Emergency)

The DC Circuit Court of Appeals examined this bypass carefully a 2014 case.

Impracticability is an “inevitably fact-or-context dependent” inquiry. See Mid-Tex Elec. Coop. v. FERC, 822 F.2d 1123, 1132 (D.C.Cir.1987). In the past, we have approved an agency’s decision to bypass notice and comment where delay would imminently threaten life or physical property. See, e.g., Jifry v. FAA, 370 F.3d 1174, 1179 (D.C.Cir.2004) (upholding assertion of good cause when rule was “necessary to prevent a possible imminent hazard to aircraft, persons, and property within the United States”); Council of the S. Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C.Cir.1981) (noting the case was one of “life-saving importance” involving miners in a mine explosion); see also Jifry, 370 F.3d at 1179 (observing the good-cause exception should be invoked only in “emergency situations … or where delay could result in serious harm” (emphasis added)).[45]

  • Immediate proliferation of new small unmanned aircraft that will be introduced into the NAS in the weeks ahead.”[46]
    • The FAA had data as far back as 2014 on drone reports which the FAA believes shows an “immediate proliferation.” The AUVSI Economic Report published in March 2013 said, “we used 100,000 unit sales per year as a conservative benchmark.” The FAA did not publish any rule till December 14, 2015. This is almost 3 years after the AUVSI report and around 1-2 years after the FAA started gathering drone sightings. “But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).[47]
  • The Registration Branch can’t handle the influx of Part 47 registrations soon to come in by the FAA now requiring all drones over 250 grams to be registered prior to operation.[48]
    • Once again, the 2014 drone reports have been around for 1-2 years and the 2013 AUVSI report for almost 3 years. The reports cannot be used for justification for immediate implementation when the FAA and DOT waited. Waiting around till a problem becomes an emergency is bad public policy because it allows agencies to sidestep the comment period that was designed to put the public on notice and give the public a means of communicating their grievances.
  • Part 47 registration was not designed for drones.[49]
    • I don’t know why this is cited as a justification for impracticability or contrary to public interest.
  • Part 47 registration will cost the FAA 775 million over the next 5 years.[50]
    • I don’t know why this is cited as a justification for impracticability or contrary to public interest.
  • Waiting longer for the notice and comment is impracticable.[51]
    • Why? The idea behind implacability is this is an emergency, not an inconvenience. When someone call 911, does anyone expect 911 to say, “Yes, we can help you. We first need to create a taskforce on how to solve this problem, the taskforce will propose solutions to us, we will call you and let you know, and then we will be over there one week later.”

Unnecessary (Uncontested.)

  • Drones are already considered aircraft and all aircraft are required to be registered.[52]
    • That is what the United States Code, Code of Federal Regulations, the FAA and the NTSB say; however, while they have no problem with this rule, 99% of the model aircraft flyers out there will oppose this. 14 CFR § 11.13 says, “Our reason for issuing a direct final rule without [notice and comment] is that we would not expect to receive any adverse comments, and so an [notice and comment] is unnecessary. However, to be certain that we are correct, we set the comment period to end before the effective date. If we receive an adverse comment or notice of intent to file an adverse comment, we then withdraw the final rule before it becomes effective and may issue an [notice and comment].” The unnecessary exception is for no contest type of regulations. If this regulation was narrowly tailored to only the Section 333 guys who have to register anyways, this rule would have 99% of the commercial guys supporting it and it would be completely unnecessary to do notice and comment.
  • Congress has directed the FAA to ensure safety of aircraft and airspace.[53]
    • Congress most likely won’t contest this, but the model aircraft guys will; therefore, it still doesn’t fall into unnecessary because it is contested.
  • No one would object because it “relieves a significant number of owners from the burden of complying with the paper-based, time-consuming part 47 registration process.”[54]
    • Only the Section 333 guys currently are required to do this and would not contest this rule. Hidden in this proposed regulations is that 14 CFR 91.203 registration requirement now applies to all aircraft above 250 grams. 91.203 requires the Part 47 route which is difficult. What is happening is the FAA is now “activating” a regulation that has laid dormant to model aircraft individuals and using that now activated difficult regulation as a justification to fall into the unnecessary. Here is the problem with that argument, 99% of the model aircraft community does not even know 91.203 now applies to them; therefore, you can’t have a rule being uncontested if the individuals affected don’t even know what is going on! The whole idea behind the Federal Register Act of 1934 and the Administrative Procedures Act was to keep the public informed.

 

Contrary to the Public Interest (Public Would Be Harmed Rather than Benefited by Notice and Comment)

  • FAA estimated 200,000 drones were operated in 2014 and we had 238 reports of potential unsafe drone operations. For 2015, 1.6 million will be sold.[55]
    • See below.
  • Even commercial guys are operating without authority.[56]
    • Yes, unfortunately that is the case. Many are doing so because they feel the FAA is unjustifiably regulating this area or the Section 333 restrictions are unreasonable. This is why it is extremely important for the FAA and DOT to work within the restrictions of Section 336 and the APA so as to not add fuel to the fire.
  • The FAA lists multiple stories on drone sightings.[57]
    • See the next one.
  • The FAA details 7 stories of drone reports.[58]
    • Out of the 7 stories, 4 of them resulted in the individual being identified without mandatory drone registration, 2 would have never even been remedied by drone registration, and only 1 would have been helped by mandatory drone registration. I’m not sure why these stories were put in here other than to maybe illustrate that education on the front end could have possibly prevented all 7 and in 1 of the stories, the individual could have been identified by registration alone. These facts don’t translate into justifying the good cause exception for notice being against the public interest. Maybe this was used as a justification for impracticability? Even so, there are 7 stories and this does not constitute an emergency.
  • The FAA lists two tables of drone reports from 2014 and 2015.[59]
    • The court’s review of agency rulemaking is highly deferential, limited to determining “whether the agency has considered the relevant factors and articulated a ‘rational connection between the facts found and the choice made.’”[60] The AMA responded to the drone sightings in a report that brings into question the facts being used for justification. https://www.modelaircraft.org/gov/docs/AMAAnalysis-Closer-Look-at-FAA-Drone-Data_091415.pdf It is not clear how many of the sightings of drones are in locations they should not be or how many are seen in areas where they could fly under the FAA’s own guidance documents.
    • Furthermore, compounding the problem is that the FAA has not clearly come out and stated that under AC 91-57, AC 91-57A, FMRA Section 336, and 2014 Model Interpretation and many other areas listed online, that flying a drone near an airport is “illegal.” The lack of clarity leads everyone to believe that this is completely prohibited, and there has been no clarification by the FAA on this common misconception. Therefore, people report drones flying in places they could be flying in accord with the FAA guidance which causes the drone sightings to be inflated and unreliable for rule making.
  • Commercial drone sales will “rapidly accelerate” to 11 million by 2020.[61]
    • See above.
  • Many individuals are new and have no clue of the national airspace.[62]
    • This is a problem and should be remedied according to the APA and getting Congress to change Section 336.

 

 3. Lack of Statutory Authority

This is a major point. If you study out all the statutes where the U.S. Congress delegated authority to the FAA to registered aircraft, you’ll notice they are only give power to register – aircraft. They were never given power to register people anywhere. The statutes always say register and aircraft. Let this sink in. This is a “Do not go pass go” situation. Before we even get to the discussion of 336 and the APA’s good cause exception the FAA needs to answer this.

You don’t even have to own an aircraft to register. The FAA’s own Marke Gibson said he didn’t even own an aircraft but registered. [63]

 

Proposed Solutions for the FAA:

  • Get Congress to pass an amendment to Section 336 so the regulations will not be in violation of it.
  • Go the notice and comment route with the regulations. Don’t skip this because it is inconvenient.
  • Publish a document that has everything a drone pilot needs to know in ONE place. There are multiple things being said in multiple places. Certain parts of the regulations apply and other parts do not. It needs to be listed in one place if individuals are going to be educated; otherwise, it is far easier to just fly than try and figure out what is actually required of you. See my blog post where I discuss further. I had to actually create a chart in my drone book, Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them, of all the do’s and do not’s because they are scattered all over.
  • Go through the drone reports and do your best to “clean up” the data. The data is lacking and because the whole flying near airports misconception has not been full clarified, the data is over inflated and inaccurate. Seek to implement quality controls on the data gathering and properly classify and represent it.
  • Reach out to highly-viewed social media celebrities to collaborate with in educating the community.

 

Why Am I Proposing These?

My fear is this rule will “delegitimize” the FAA and DOT in the eyes of many drone flyers.

Why?

Hope this helps guys. Fly safe. J

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[1] 18 U.S.C. 3571

[2] 49 U.S.C. 46306

[3] Page 155.

[4] United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988)

(citations omitted).

[5] Section 332(a)(2)(A)(ii).

[6] Section 332(a)(2)(I).

[7] Section 333(a).

[8] Section 333(b)(1).

[9] Section 334(c)(2)(C)(v).

[10] Section 336(a).

[11] Section 336(a)(4).

[12] Cohen v. JP Morgan Chase & Co., 498 F. 3d 111, 117-18  (2nd Cir. 2007).

[13] Nixon v. Missouri Municipal League, 541 US 125, 132-33 (2004).

[14] Section 336(b).

[15] Page 19.

[16] Page 18.

[17] Page 18.

[18] Page 18.

[19] Page 19.

[20] Page 11.

[21] Pages 11-12.

[22] Page 20.

[23] Page 12.

[24] Page 12.

[25] Pages 12-13.

[26] Pages 13-14.

[27] Page 14-16.

[28] Page 17.

[29] Page 17.

[30] 14 C.F.R. 1.1.

[31] Fed. Aviation Admin., FAA-IR-M-8040.1C, Airworthiness Directives Manual (2010) [hereinafter “AD Manual”], available at http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgOrders.nsf/0/66ddd8e1d2e95db3862577270062aabd/$FILE/FAA-IR-M-8040_1C.pdf

[32] Id. at 15.

[33] See id.

[34] See

[35] Id.

[36] Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369 (D.C. Cir. 1990), vacated without opinion and

remanded, 498 U.S. 1023 (1991), vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991).

[37] Id. at 379.

[38] 14 C.F.R. § 11.13.

[39] Id.

[40] See 14 C.F.R. § 11.31(c).

[41] See id.

[42] AD Manual, supra note 302, at 15.

[43] AD Manual, supra note 302, at 15.

[44] Jifry v. FAA, 370 F. 3d 1174, 1179 (D.C. Cir. 2004).

[45] Sorenson Communications Inc. v. FCC, 755 F. 3d 702, 706 (D.C. Cir. 2014).

[46] Page 19.

[47] Air Transp. Ass’n of Am. v. Dep’t of Transp., 900 F.2d 369, 378 (D.C. Cir. 1990), vacated without opinion and

remanded, 498 U.S. 1023 (1991), vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991).

[48] Page 18.

[49] Page 18.

[50] Page 18.

[51] Page 19.

[52] Page 11.

[53] Pages 11-12.

[54] Page 20.

[55] Page 12.

[56] Page 12.

[57] Pages 12-13.

[58] Page 14-16.

[59] Pages 13-14.

[60] Jifry v. FAA, 370 F. 3d 1174, 1180 (D.C. Cir. 2004).

[61] Page 17.

[62] Page 17.

[63] At 27:47 https://www.youtube.com/watch?v=fOeoHJZdwuw


Drone Crash-What Do I Do After I Crash My Drone?

 

 

crashed droneIf you crashed a drone, there are reporting requirements. Below we will discuss the reporting requirements you make to the FAA and the reporting requirements you make to the National Transportation Safety Board (“NTSB”) following a drone crash. Just to be clear, this whole page does NOT apply to Part 101 model aircraft. 

 

Quick Info:

  • “Contact the NTSB’s 24-hour Response Operations Center (ROC) at 844-373-9922 to file a report. A phone call is sufficient initially, but a written follow-up may be required.”
  • FAA REGIONALOPERATIONS CENTERS. LOCATION WHERE ACCIDENT OCCURRED:
    • DC, DE, MD, NJ, NY, PA, WV, and VA 404-305-5150
    • AL, CT, FL, GA, KY, MA,ME,MS, NC, NH, PR, RI, SC, TN, VI, and VT 404-305-5156
    • AK, AS, AZ, CA, CO, GU, HI, ID, MP,MT, NV, OR, UT, WA, and WY 425-227-1999
    • AR, IA, IL, IN, KS, LA, MI,MN,MO, ND, NE, NM, OH, OK, SD, TX, and WI 817-222-5006
  • The FAA also has a website where you can report a crash.
  • NASA AVIATION SAFETY REPORTING SYSTEM
  • Note that the NTSB’s definitions of accident and unmanned aircraft accident and the FAA’s definition of accident in 107.9 are ALL different. It would have been a good idea for the FAA to just match up the definitions of 107.9 to 830.2 to keep things simple.
  • Keep in mind that this article is primarily focusing on Part 107 operations, NOT  Section 333 exemption operations, but most 333 exemptions have a provisions that requires notification to the FAA UAS Integration Office and NTSB so this article is still very relevant although some the requirements might differ. The language of the exemption and Blanket COA supersedes these requirements.

Times:

  • Mandatory:
    • Report an “accident” or “serious incident” (Part 830’s definitions) immediately to the NTSB Response Operations Center.
    • Send NTSB Form 6120.1 in within 10 days for an accident or 7 days for an overdue aircraft that is still missing. For a serious incident and if requested, send in the form. No time is mentioned in 830.15.
    • Notify the FAA within 10 days of the occurrence of an accident (107.9 “accident”).
  • Voluntary:
    • “NASA Form” is within 10 days of the violation.

 

During this 10 day period, you have time to call an attorney to help in figuring out how best to handle the situation and what to say in your report.

Don’t want to read? Watch the video of this article!

 

 

crashed cinematography drone

Who is the NTSB? How Are They Different than the FAA?

crashed drone 2“The NTSB is an independent federal agency, charged by Congress to investigate transportation accidents, determine probable cause, and issue safety recommendations to prevent similar accidents. The agency’s scope extends beyond aviation crashes, as it also investigates selected rail, marine, highway, and pipeline accidents, as well as those involving transportation of hazardous materials.”[1] The NTSB is COMPLETELY separate from the FAA. “The primary role of NTSB is improving safety of our nation’s transportation system. The agency determines the probable cause of accidents and issues safety recommendations to prevent similar occurrences. It does not determine fault or liability. In fact, according to 49 U.S.C. § 1154(b), ‘No part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.’”[2]


In addition to doing investigations, the NTSB can judge appeals of FAA enforcement actions brought against manned aircraft pilots and drone pilots. There are two levels of appeal with the NTSB: (1) the administrative law judge level (ALJ) and (2) the full board of NTSB members. Some of you might remember the Pirker case. The Pirker case was initially won at the ALJ level, but on appeal to the full NTSB Board, was remanded back to the ALJ to determine if Pirker’s flight was careless and reckless.

 

The Reporting Requirements to Make to the NTSB.

Keep in mind the you must IMMEDIATELY notify the NTSB and one quick way you can do this is by contacting the NTSB’s 24-hour Response Operations Center (ROC) at 844-373-9922 to file a report. Contacting the ROC satisfies 49 CFR 830.5. The below text comes from the NTSB Advisory on Drones which you can download here.

 

NTSB Advisory to Operators of Civil Small Unmanned Aircraft Systems in the United States

INTRODUCTION

The use of small civil unmanned operating systems (sUAS) is growing rapidly, with changes happening on a nearly daily basis.  In particular, the Federal Aviation Administration (FAA) and the Department of Transportation’s Office of the Secretary issued a new final rule on the operation and certification of small unmanned aircraft systems[3] and the FAA recently issued a new “blanket Certificate of Waiver or Authorization (COA)” for commercial Section 333[4] and Public Aircraft operators.

 

The new Part 107 rule, the FAA Blanket COA,[5] and other FAA authorizations for UAS operation, direct UAS operators to provide expedited notification to the FAA in the event that any of a series of enumerated occurrences take place during the operation of a UAS.  Included in these instructions are reminders that the FAA procedures “are not a substitute for separate accident/incident reporting required by the National Transportation Safety Board (NTSB) under 49 CFR §830.5.”  By means of this Advisory, the NTSB reminds operators of any civil UAS, other than those operated for hobby or recreational purposes, of the NTSB’s accident and incident reporting requirements in Part 830 of title 49, Code of Federal Regulations.

 

BACKGROUND

In August of 2010, the NTSB revised its Part 830 regulations to clarify that its accident and incident notification requirements apply to unmanned aircraft as well as conventional manned aircraft.[6]  Section 830.5 instructs operators of civil aircraft and certain public aircraft to immediately, and by the most expeditious means available, notify the NTSB when an accident or listed incident occurs.

 

An accident will result in the NTSB’s initiating an investigation and report with a determination of probable cause.  In order to minimize the burden on operators of a small UAS and the NTSB, we have exempted from the definitions of “aircraft accident” and “unmanned aircraft accident” in section 830.2 of the NTSB regulations those events in which there is only substantial damage to the aircraft (no injuries), and the aircraft has a maximum gross takeoff weight of less than 300 pounds. This is what happened with the Facebook drone. You can read the NTSB crash report.

 

Although any of the incidents enumerated in section 830.5 would require the operator to notify the NTSB, the agency at its discretion may decide to conduct a full investigation with probable cause.

 

REQUIREMENTS

A civil UAS operator must immediately and by the most expeditious means, notify the NTSB of an accident or incident.  An unmanned aircraft accident is defined in 49 C.F.R. § 830.2 as an occurrence associated with the operation of any public or civil unmanned aircraft system that takes place between the time that the system is activated with the purpose of flight and the time that the system is deactivated at the conclusion of its mission, in which:

(1) Any person suffers death or serious injury; or

(2) The aircraft has a maximum gross takeoff weight of 300 pounds or greater and sustains substantial damage.

Section 830.2 also provides definitions of what constitutes “serious injury” and “substantial damage”.

 

Operators must consider that the rest of the reporting requirements for serious incidents listed in section 830.5 apply regardless of UAS weight.  Listed serious incidents that apply to small UAS include the following events:

  • Flight control system malfunction or failure: For an unmanned aircraft, a true “fly-away” would qualify. A lost link that behaves as expected does not qualify.
  • Inability of any required flight crewmember to perform normal flight duties as a result of injury or illness.  Examples of required flight crewmembers include the pilot, remote pilot; or visual observer if required by regulation.  This does not include an optional payload operator.
  • In-flight fire, which is expected to be generally associated with batteries.
  • Aircraft collision in flight.
  • More than $25,000 in damage to objects other than the aircraft.
  • Release of all or a portion of a propeller blade from an aircraft, excluding release caused solely by ground contact.
  • Damage to helicopter tail or main rotor blades, including ground damage, that requires major repair or replacement of the blade(s).
  • An aircraft is overdue and is believed to have been involved in an accident.

EXAMPLES

Below are examples of potential events.

  • A small multirotor UAS has a fly-away and crashes into a tree, destroying the aircraft:  Not an accident, (though substantial damage, too small, and no injuries), but the operator is required to notify the NTSB of a flight control malfunction. NTSB may initiate an investigation and report with a determination of probable cause.
  • A small multirotor UAS has a fly-away and strikes a bystander causing serious injury:  Accident (resulted in serious injury). The operator is required to immediately notify the NTSB. The NTSB must investigate the accident and determine a probable cause.
  • A small multirotor UAS hits a tree due to pilot inattention on a windy day:  Not an accident (too small, even if substantial damage). However, the operator is required to notify the NTSB if other criteria of 830.5 are met.  NTSB may initiate an investigation and report with a determination of probable cause.
  • A large, experimental UAS (400 lbs) has a structural failure and crashes in a remote area:  Accident (substantial damage and gross takeoff weight of 300 lbs. or greater). The operator is required to immediately notify the NTSB.  NTSB must investigate and determine a probable cause.

drone-crash-flowchart

 

We’d also like to remind unmanned aircraft operators that none of Part 830 is intended to apply to hobbyist or recreational operators as described in section 336 of the FAA Modernization and Reform Act of 2012[7] and applicable FAA guidance.

 

We hope this advisory serves as a useful reminder to the UAS community that the NTSB remains committed to performing its long-standing mission to support air safety through accident and incident investigation, while placing a minimum burden on this growing industry.

 

This guidance applies to any unmanned aircraft operated under Part 107, 333, civil COA, experimental certificate, etc.  UAS operators should note that they may have additional reporting requirements to the FAA, military, or other government agencies depending on the applicable regulations under which they are operating.

 

For further information or questions, you may contact:

Bill English

National Transportation Safety Board

Major Investigations (AS-10)

bill.english@ntsb.gov

 

What happens after I call the NTSB phone number?

After contacting the NTSB’s 24-hour ROC, your notification will be taken and forwarded to the appropriate NTSB division for processing. The reported event will be evaluated and a determination will be made whether or not the NTSB will investigate the event. All aircraft accidents as defined by 49 CFR 830.2 are investigated in some capacity, as are select incidents. If an investigation is opened into an event, an investigator will then contact the operator/reporting party to request additional information.

While I’m waiting, do I have to protect the aircraft wreckage?

49 CFR § 830.10 says,

(a) The operator of an aircraft involved in an accident or incident for which notification must be given is responsible for preserving to the extent possible any aircraft wreckage, cargo, and mail aboard the aircraft, and all records, including all recording mediums of flight, maintenance, and voice recorders, pertaining to the operation and maintenance of the aircraft and to the airmen until the Board takes custody thereof or a release is granted pursuant to §831.12(b) of this chapter.

(b) Prior to the time the Board or its authorized representative takes custody of aircraft wreckage, mail, or cargo, such wreckage, mail, or cargo may not be disturbed or moved except to the extent necessary:

(1) To remove persons injured or trapped;

(2) To protect the wreckage from further damage; or

(3) To protect the public from injury.

(c) Where it is necessary to move aircraft wreckage, mail or cargo, sketches, descriptive notes, and photographs shall be made, if possible, of the original positions and condition of the wreckage and any significant impact marks.

(d) The operator of an aircraft involved in an accident or incident shall retain all records, reports, internal documents, and memoranda dealing with the accident or incident, until authorized by the Board to the contrary.

 

I called the NTSB phone number. I am currently waiting for an NTSB investigator to contact me. Is there anything I can do now to assist the investigation?

If the event meets the criteria of 49 CFR 830 and is determined to be an aircraft accident, the NTSB investigator assigned to the case will require the operator to complete NTSB Form 6120.1 – Pilot Operator Aircraft Accident/Incident Report. 49 CFR 830.15 requires you file the form “within 10 days after an accident, or after 7 days if an overdue aircraft is still missing.” Should you be directed to complete Form 6120.1 – “Pilot/Operator Aircraft Accident/Incident Report”, please do as follows:

  • Obtain the form from the requesting NTSB office or download a form-fillable PDF version.
  • The form-fillable version can be edited and saved repeatedly, or simply printed and filled out manually using the free Adobe Acrobat Reader (or equivalent software).
  • DO NOT submit the form until you are contacted by an investigator and are provided with instructions regarding where to send the form. Forms can be submitted by email, FAX, or post mail.
  • Keep in mind that Form 6120.1 has many boxes and fields that are not very applicable to drone pilots. Just do the best you can in filling it all out. The investigator will contact you if there are any questions.

 

Filing of this report with the assigned investigator satisfies the requirements of 49 CFR 830.15 – Reports and statements to be filed. DO NOT submit a report form in-lieu of providing an initial notification of an aircraft accident to the NTSB ROC.

 

The Reporting Requirements to Make to the FAA

There are two types of reporting made to the FAA: (1) when there has been a deviation from the regulations and requested to report, and (2) when there has been an accident.

1. Upon Request Following a Deviation Due to an Emergency

107.21 In-flight emergency.

(a) In an in-flight emergency requiring immediate action, the remote pilot in command may deviate from any rule of this part to the extent necessary to meet that emergency.

(b) Each remote pilot in command who deviates from a rule under paragraph (a) of this section must, upon request of the Administrator, send a written report of that deviation to the Administrator.

2. After an Accident (Within 10 Days)

The FAA gives you 10 days to respond. I would highly suggest you take this time to contact an attorney. Remember that the FAA can prosecute you if you did something stupid.

107.9 Accident reporting.

No later than 10 calendar days after an operation that meets the criteria of either paragraph (a) or (b) of this section, a remote pilot in command must report to the FAA, in a manner acceptable to the Administrator, any operation of the small unmanned aircraft involving at least:

(a) Serious injury to any person or any loss of consciousness; or

(b) Damage to any property, other than the small unmanned aircraft, unless one of the following conditions is satisfied:

(1) The cost of repair (including materials and labor) does not exceed $500; or

(2) The fair market value of the property does not exceed $500 in the event of total loss.

The FAA provided more guidance on this regulation on page 4-3 in their Advisory Circular 107-2:

“1. At least serious injury to any person or any loss of consciousness. A serious injury is an injury that qualifies as Level 3 or higher on the Abbreviated Injury Scale (AIS) of the Association for the Advancement of Automotive Medicine (AAAM). The AIS is an anatomical scoring system that provides a means of ranking the severity of an injury and is widely used by emergency medical personnel. Within the AIS system, injuries are ranked on a scale of 1 to 6, with Level 1 being a minor injury, Level 2 is moderate, Level 3 is serious, Level 4 is severe, Level 5 is critical, and Level 6 is a nonsurvivable injury. The FAA currently uses serious injury (AIS Level 3) as an injury threshold in other FAA regulations.”

“Note: It would be considered a “serious injury” if a person requires hospitalization, but the injury is fully reversible (including, but not limited to, head trauma, broken bone(s), or laceration(s) to the skin that requires suturing).”  [“In addition to serious injuries, this rule will also require accident reporting for accidents that result in any loss of consciousness because a brief loss of consciousness may not rise to the level of a serious injury.”[8]]

“2. Damage to any property, other than the small UA, if the cost is greater than $500 to repair or replace the property (whichever is lower).”

“Note: For example, a small UA damages a property whose fair market value is $200, and it would cost $600 to repair the damage. Because the fair market value is below $500, this accident is not required to be reported. Similarly, if the aircraft causes $200 worth of damage to property whose fair market value is $600, that accident is also not required to be reported because the repair cost is below $500.”

Why is the $500 number important?

When you do your pre-flight walk around, you should be figuring out what is $500 and cheaper in in the area. The FAA said, “Property damage below $500 is minimal and may even be part of the remote pilot in command’s mitigations to ensure the safety of the operation. For example, a remote pilot in command may mitigate risk of loss of positive control by positioning the small UAS operation such that the small unmanned aircraft will hit uninhabited property in the event of a loss of positive control.”[9]

 

What Do I Report to the FAA?

Remember that the NTSB try to find causes to promote safety and does NOT do enforcement actions while the FAA DOES do enforcement actions.  The FAA gave us a clue as to how they will handle this going forward, “the confined-area-of-operation regulations discussed in section III.E.3 of this preamble, such as the general prohibition on flight over people, are designed with the express purpose of preventing accidents in which a small unmanned aircraft hits a person on the head and causes them to lose consciousness or worse. Thus, if there is a loss of consciousness resulting from a small UAS operation, there may be a higher probability of a regulatory violation.”[10]

 

You are really between a rock and hard place if there is a crash. Why? Because law enforcement or someone else will likely report the accident to the FAA. If you don’t report, you will get in trouble.  If you do report, you COULD get in trouble. You might want to contact an attorney during this 10 day period before you file the report.  Remember that everything you report can and will be used against you.

 

Submitting the Report. The accident report must be made within 10 calendar-days of the operation that created the injury or damage. The report may be submitted to the appropriate FAA Regional Operations Center (ROC) electronically or by telephone. Electronic reporting can be completed at www.faa.gov/uas/. Reports may also be made to the nearest jurisdictional FSDO (http://www.faa.gov/about/office_org/field_offices/fsdo/). The report should include the following information:

  1. sUAS remote PIC’s name and contact information;
  2. sUAS remote PIC’s FAA airman certificate number;
  3. sUAS registration number issued to the aircraft, if required (FAA registration number);
  4. Location of the accident;
  5. Date of the accident;
  6. Time of the accident;
  7. Person(s) injured and extent of injury, if any or known;
  8. Property damaged and extent of damage, if any or known; and
  9. Description of what happened.

 

FAA REGIONALOPERATIONS CENTERS LOCATION WHERE ACCIDENT OCCURRED:

  • DC, DE, MD, NJ, NY, PA, WV, and VA 404-305-5150
  • AL, CT, FL, GA, KY, MA,ME,MS, NC, NH, PR, RI, SC, TN, VI, and VT 404-305-5156
  • AK, AS, AZ, CA, CO, GU, HI, ID, MP,MT, NV, OR, UT, WA, and WY 425-227-1999
  • AR, IA, IL, IN, KS, LA, MI,MN,MO, ND, NE, NM, OH, OK, SD, TX, and WI 817-222-5006

Aviation Safety Reporting System (ASRS) aka “The NASA Report.”

 

The ASRS system is run by NASA which is why this report is nicknamed the “NASA Form” or the “NASA Report.”  “The FAA also notes that the Aviation Safety Reporting System (ASRS) is available for voluntary reporting of any aviation safety incident or situation in which aviation safety may have been compromised. The FAA offers ASRS reporters guarantees and incentives to encourage reporting by holding ASRS reports in strict confidence and not using ASRS information against reporters in enforcement actions. Further, the FAA agrees that data collection is a valuable tool for determining a baseline for performance, reliability, and risk assessment. The FAA plans to develop a tool where remote pilots of small UAS can voluntarily share data which may not meet the threshold for accident reporting. This would provide a means for evaluation of operational integrity for small UAS.”[11]

 

Unfortunately, the FAA said, “The FAA disagrees that SMS and ASRS systems should be covered on the [Part 107] knowledge test[]. . . . because ASRS is not currently required knowledge for part 61 pilot certificate holders.” This means you aren’t required to KNOW this but you SHOULD. On top of the FAA NOT requiring you to know this, they mention NOTHING about this report in AC 107-2. Remember, this report benefits you more than the FAA.

 

Keep in mind that the report goes to NASA, not the FAA. NASA is a completely separate agency from the FAA, just like NTSB. “There has been no breach of confidentiality in more than 34 years of the ASRS under NASA management.”

 

Why Should I file a “NASA Report?”

Advisory Circular 00-46E says,

“The FAA considers the filing of a report with NASA concerning an incident or occurrence involving a violation of 49 U.S.C. subtitle VII or the 14 CFR to be indicative of a constructive attitude. Such an attitude will tend to prevent future violations. Accordingly, although a finding of violation may be made, neither a civil penalty nor certificate suspension will be imposed if:

(1) The violation was inadvertent and not deliberate;

(2) The violation did not involve a criminal offense, accident, or action under 49 U.S.C. § 44709, which discloses a lack of qualification or competency, which is wholly excluded from this policy;

(3) The person has not been found in any prior FAA enforcement action to have committed a violation of 49 U.S.C. subtitle VII, or any regulation promulgated there for a period of 5 years prior to the date of occurrence; and

(4) The person proves that, within 10 days after the violation, or date when the person became aware or should have been aware of the violation, he or she completed and delivered or mailed a written report of the incident or occurrence to NASA.

There are no limitations on how many NASA Reports you can file. Immunity will not be granted if you received an enforcement action and have been found in violation of the FAR’s within the previous 5 years from the date of occurrence.

 

So I should always file a NASA Report? It looks like a “get out of jail free card.”

No! If you did something criminal or were involved in an accident, then that information will NOT be
deidentified before NASA sends the information to the Department of Justice for criminal actions or the FAA and NTSB for accidents.  This means the report you filed with your name, phone number, address, and a whole bunch of other goodies is going to be sent over to the guys who can prosecute you! How convenient. So if you did something criminal or were involved in an accident, ESPECIALLY if you are unsure if you fall into one of those categories or not, you should contact me. Flying intentionally into a 99.7 TFR is a criminal penalty.

 

Keep in mind that this is a waiver from disciplinary action. You will still have a violation show up on your pilot record.

 

Great. So there aren’t any other issues with reporting?

Potentially. Section 91.25 says, “The Administrator of the FAA will not use reports submitted to the National Aeronautics and Space Administration under the Aviation Safety Reporting Program (or information derived therefrom) in any enforcement action except information concerning accidents or criminal offenses which are wholly excluded from the Program.” The problem is that is Part 91 and NOT part 107. The FAA didn’t include a Part 107 equivalent.

 

We know that NASA won’t give over the info. The FAA can find out a lot of info on their own and can initiate an enforcement action. The idea of the NASA Form was to prevent the imposition of a civil penalty or suspension when the FAA got the info on their own. The FAA indicated in the Part 107 preamble they would continue to honor the program. However, they could change their mind in the future, it isn’t a regulation, and go after people who have filed a NASA Form, but they would get insane amounts of pressure from the safety community to not do that. I’m just making you aware of this situation.

 

I hope this helps you guys understand what you need to do and when you need to contact me after a crash. Keep in mind that this was only about the FAA and NTSB, not about other potential liability issues that could come about as a result of the crash.

 

Continue to the Next Topic: Temporary Flight Restrictions (Civil and Criminal Punishments)

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[1] http://www.ntsb.gov/news/speeches/rsumwalt/Documents/Sumwalt_141020.pdf

[2] Id. citing 49 U.S.C. § 1154(b).

[3] See 81 Fed. Reg.  42063 (June 28, 2016).  This action fulfills Congress’s direction in section 332(b) of the FAA Modernization and Reform Act of 2012, Pub. L. 112-95, for the Secretary of Transportation and the FAA to issue a final rule on small unmanned aircraft systems that will allow for civil operations of UAS in the National Airspace System.

[4] Section 333 of the FAA Modernization and Reform Act of 2012 provides that “[i]f the Secretary of Transportation determines that … certain unmanned aircraft systems  may operate safely in the national airspace system,  the Secretary  shall establish requirements for the safe operation of such aircraft systems in the national airspace system.”

[5] The FAA Blanket COA for any Operator issued a Valid Section 333 Grant of Exemption (FAA Form 7711-1).

[6] 75 Fed. Reg. 51955 (August 24, 2010).

[7] Section 336(c) states that the term the term ‘‘model aircraft’’ means an unmanned aircraft that is—

(1) capable of sustained flight in the atmosphere;

(2) flown within visual line of sight of the person operating the aircraft; and

(3) flown for hobby or recreational purposes.

[8] Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42, 178 (June 28, 2016).

[9] Id. at 42,178.

[10] Id.

[11] Id. at 42,179.


Don’t Drink and Drone – FAA Regulations on Drones & Alcohol

drink-drone-faa-alcohol-regulationsI thought I should write an article to educate individuals on one of the lesser known regulations regarding flying drones and drinking. This article will address first the commercial drone operators and then the recreational drone or model aircraft operators.

 

The FAA is really focused on preventing people from droning under the influence of either alcohol or drugs.

 

Commercial Drone Operators Using Alcohol or Drugs

 

Commercial drone operators are either operating under Part 107 or under a Section 333 exemption.

 

Part 107 

14 CFR 107.27 says,

“A person manipulating the flight controls of a small unmanned aircraft system or acting as a remote pilot in command or visual observer must comply with the provisions of §§91.17 and 91.19 of this chapter.”  Part 107 incorporates Part 91 by reference. Part 107 does this also with the temporary flight restriction provisions.

 

Let’s now look at the other way commercial drone operators can legally fly.

 

Section 333 Exemptions

The Section 333 exemptions were updated in November 2016 and include, “Unless otherwise specified in this exemption, the UAS, the UAS PIC, and the UAS operations must comply with all applicable parts of 14 CFR including, but not limited to, parts 45, 47, 48, 61, and 91.”

 

Remember that when operating under a Section 333 exemption, you are really operating under all of the other Parts of the federal aviation regulations besides Part 107. If you comb through them all, you’ll find the same two regulations that were referenced by Part 107 – 91.17 and 91.19.

 

Let’s dive into what 91.17  and 91.19 says.

 

14 CFR Sec. 91.17 says,

(a) No person may act or attempt to act as a crewmember of a civil aircraft—

(1) Within 8 hours after the consumption of any alcoholic beverage;

(2) While under the influence of alcohol;

(3) While using any drug that affects the person’s faculties in any way contrary to safety; or

(4) While having an alcohol concentration of 0.04 or greater in a blood or breath specimen. Alcohol concentration means grams of alcohol per deciliter of blood or grams of alcohol per 210 liters of breath.

. . . . 

(c) A crewmember shall do the following:

(1) On request of a law enforcement officer, submit to a test to indicate the alcohol concentration in the blood or breath, when—

(i) The law enforcement officer is authorized under State or local law to conduct the test or to have the test conducted; and

(ii) The law enforcement officer is requesting submission to the test to investigate a suspected violation of State or local law governing the same or substantially similar conduct prohibited by paragraph (a)(1), (a)(2), or (a)(4) of this section.

(2) Whenever the FAA has a reasonable basis to believe that a person may have violated paragraph (a)(1), (a)(2), or (a)(4) of this section, on request of the FAA, that person must furnish to the FAA the results, or authorize any clinic, hospital, or doctor, or other person to release to the FAA, the results of each test taken within 4 hours after acting or attempting to act as a crewmember that indicates an alcohol concentration in the blood or breath specimen.

(d) Whenever the Administrator has a reasonable basis to believe that a person may have violated paragraph (a)(3) of this section, that person shall, upon request by the Administrator, furnish the Administrator, or authorize any clinic, hospital, doctor, or other person to release to the Administrator, the results of each test taken within 4 hours after acting or attempting to act as a crewmember that indicates the presence of any drugs in the body.

(e) Any test information obtained by the Administrator under paragraph (c) or (d) of this section may be evaluated in determining a person’s qualifications for any airman certificate or possible violations of this chapter and may be used as evidence in any legal proceeding under section 602, 609, or 901 of the Federal Aviation Act of 1958.

 

Can You Give Me Some Real World Scenarios How People Could Violate the Regulation?

Here are some real world scenarios on how you can violate section 91.17:

  • (1) Within 8 hours after the consumption of any alcoholic beverage;
    • You go to a party, have one beer, and then go fly your drone 30 minutes later.
    • You stayed up partying hard past midnight (2am was your last drink time). You get up early around 7am to shoot some footage.
  • (2) While under the influence of alcohol;
    • You got hammered last night and passed out. You get up early and still feel buzzed.
  • (3) While using any drug that affects the person’s faculties in any way contrary to safety; or
    • You are on some powerful medication to treat some type of disease or pain. This medication is affecting your faculties in ANY way.
  • (4) While having an alcohol concentration of 0.04 or greater in a blood or breath specimen. Alcohol concentration means grams of alcohol per deciliter of blood or grams of alcohol per 210 liters of breath.
    • You played a drinking game with your buddies using whiskey, but that was over 8 hours ago. You are a seasoned drinking vet and have developed a high tolerance for alcohol. (You can hold your liquor). You might still be above .04 because your alcohol tolerance is so high.

Recreational Drone or Model Aircraft Operators

Part 101 does not specifically prohibit drinking in droning,  but…… it does say

 

§ 101.43 Endangering the safety of the National Airspace System.

“No person may operate model aircraft so as to endanger the safety of the national airspace system.”

 

Depending on which FAA inspector you run into and the facts of the situation, drunk droning could be considered to be endangering the national airspace.

 

Furthermore, Part 101 is applicable to a model aircraft “that meets all of the following conditions” of Part 101 such as the requirement to operate the “aircraft is operated in accordance with a community-based set of safety guidelines[.]” The Academy of Model Aeronautics Safety Code does NOT allow a person to operate a drone under the influence of drugs or alcohol. RCAPA safety guidelines also don’t allow drinking and droning. I do not know of any community based organization that allows this.

 

Why do I mention this?

 

This is a very important point. If you are NOT flying according to Part 101, because you are violating the safety codes by drinking and droning, you MUST comply with Part 107. You are going to have to comply with one or the other.

 

 

 

Remember that the AMA, RCAPA, etc., those community based organizations, are NOT the law, but the law says you need to be operating in accordance with a community based organization’s safety guidelines!

 

This could open you up to many additional violations you could be charged with such as flying your aircraft without a remote pilot certificate, flying in airspace without an authorization, flying over people, etc.

 

Don’t drink and drone and don’t let your friends drink and drone.


Amazon Drone Delivery – 3 Major Legal Problems with Amazon Prime Air

I’m going to briefly discuss some of the background to this drone delivery buzz, why privacy won’t be an issue to drone delivery, what really is going on, and then dive into the three major legal problems with Amazon Prime Air becoming a reality for Americans.

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

Brief Background on the Drone Delivery Craze

 

Drone delivery has been all over the news with Amazon being the first to announce the projected use of drones to make deliveries. Others have followed the trend and announced deliveries such as the drone burrito delivery, the drone pizza delivery, etc.

 
n
In 2015, Dave Vos, the former head of Google’s Project Wing, said to an audience, “Our goal is to have commercial business up and running in 2017[.]”  Fedex, UPS, DHL, Walmart, and everyone including your grandma’s dog has announced they are interested in drone delivery. Then, as if we hadn’t enough drone delivery buzz, Amazon published on December 14, 2016 a video showing their first customer delivery using a drone.

 

amazon-prime-air-drone-deliveryDrone delivery is really a small portion of the drone market, but thanks to Amazon, it is the “face” of the commercial drone industry. This has gone a long way to clean up a lot of the public stigma about the drone industry. On the topic of drones, people tend to think of Amazon delivery, not predator drones. Kudos to you Amazon for changing that.

 

The idea of drone deliveries in general is not only just delivering potato chips but also for more legitimate humanitarian purposes. A great example of this is the company Matternet, which partnered with UNICEF to do drone delivery in Malawi with the end goal of developing low-cost delivery of blood samples from children to be tested so medical drugs can be given to them when needed and in time. Drones – they can save money, time, and lives.

 

 

………and it isn’t because of one of the most frequently raised issues – privacy.

 

Privacy –Frequently Raised, but not a Legal Barrier.

I don’t think privacy issues are going to be a problem because of 3 reasons:

 

(1) In the terms of service that no one will read, language will be used to the effect that says it’s cool with the property owner to have the drone descend over their house and drop off the package.

(2) Missy Cummings, a professor of mechanical engineering and director of the Humans and Autonomy Lab at Duke University, provided one potential solution of drone delivery companies and other companies partnering for delivery points. “Perhaps Starbucks could be your intermediary point.”

(3) Amazon’s patent on drone docking stations (attached to light polls or cell towers) won’t have property/privacy issues because that will all be taken care of in a contract agreement with the cell tower and power companies.

But let’s get back to Amazon. Is Amazon drone delivery really going to happen here in the U.S.?

 

Most of the News is of Operations Either Overseas or in Rural Areas

Most of what you have seen in the news is either in other countries or in rural areas of the U.S.

Most of the operations were completed in rural/non-urban areas.

 

Amazon’s latest marketing efforts show a drone delivery to a person who happened to be living next door (~ 765 yards) to Amazon’s Cambridge, England facility. That’s great if you live near a test site –  in another country. The drone deliveries overseas ….really don’t matter to us in the U.S. because we have different laws here.

 

Up until August 29, 2016,  we only had the Section 333 exemption process, the public certificate of waiver or authorization (which is statutorily prohibits commercial operations), or the airworthiness certificate process coupled with a certificate of waiver or authorization – all three are difficult to operate under in reality and only two allow commercial operations. Thankfully, Part 107 went into effect on August 29, 2016 and is far less restrictive than the previous three options. This is why you might have noticed that after August 29th, the drone delivery announcements and the accompanying photos in the U.S. have started to look closer to what we envision a drone delivery should look like.

 

 

Three Major Legal Problems With Amazon Prime Air Becoming a Reality for Americans.

 

Problem 1: FAA’s Part 107 Drone Regulations

These are the newly-created drone regulations that went into effect on August 29th.

 

Part 107 does NOT allow air carrier operations. “‘[A]ir carrier’ means a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.”[1] “‘[A]ir transportation’ means foreign air transportation, interstate air transportation, or the transportation of mail by aircraft.”[2]  In other words, Fedex, UPS, DHL, USPS, or anyone crossing state or national borders cannot operate under Part 107. Bummer.

 

So Amazon can get around that by not carrying mail or crossing state or national borders.

 

Here is where things start to get limiting under Part 107 for drone delivery:

  • The drone must be within line of sight of the pilot in command[3] (The farther the drone can fly, the greater the economic impact).
  • A Part 107 remote pilot is needed that must be able to command the aircraft. Fully autonomous drones where a person isn’t in command won’t work.[4]
  • The remote pilot can only operate one drone at a time unless they have a Part 107 waiver.[5] In other words, no swarms, unless you have a waiver. This is an important point. A Flexport article rightly pointed out that costs will be lowered when swarms are implemented. “It’s not a stretch to think that a truck releasing a swarm of 25 delivery drones could be up to 25 times more efficient than a driver making those same drops.”
  • The drones cannot be operated from a moving vehicle to transport another person’s property for compensation or hire.[6] You’ll have to stop the delivery van.
  • The drone cannot be operated over a non-participating person or a moving vehicle.[7] This is going to be hard to figure out because people and cars are constantly moving all over the place in residential areas and cities. If you want to fly at night, say 2 AM, to get around the people problem, you’ll need a Part 107 night waiver. Either way, you’ll need a waiver.
  • The drones cannot be operated in Class B, C, D, or E at the surface airspace without an authorization or waiver.[8]

 

Following up on the last point, where are the customers? Near cities.

 

What is near cities? Airports….everywhere.

 

Let’s just pull some data from Arizona’s Amazon fulfillment distribution centers. Taxjar’s blog listed five address in Arizona (but it really is only four buildings).

  • #PHX3 – 6835 W. Buckeye Rd. Phoenix, AZ, 85043 – Maricopa County
  • #PHX5 – 16920 W. Commerce Dr. Goodyear, AZ, 85338 – Maricopa County
  • #PHX6 – 4750 W. Mohave St. Phoenix, AZ, 85043 – Maricopa County
  • #PHX7 – 800 N. 75th Ave Phoenix, AZ, 85043 – Maricopa County

 

I took these addresses and plugged them into the sectional map (green stars with green arrows) which shows us all the airspace in the Phoenix area. Calm down. I made it easy for you. I used to say to my flight students when I was flight instructing that these maps were like a form of job security. I marked out the areas where the drones cannot fly under Part 107 in red, unless they have an authorization or waiver.

drone-delivery-amazon-fullfilment-center-arizona

Two of the fulfillment centers are in controlled airspace and would require an authorization or waiver to just take off.

 

In short, under Part 107, Amazon has a host of regulatory problems they need to conquer just with the FAA to have cost saving operations, but Part 107 isn’t the only way to make a drone operation legal. There is also the Section 333 exemption process.

 

Problem 2: FAA’s Section 333 Exemption for Commercial Drone Operations

Part 107 doesn’t allow a beyond visual line of sight waiver for carrying other people’s property. However, while Section 333 of the FAA Modernization and Reform Act of 2012 was only line of sight, the FAA Reauthorization of 2016 has a provision which allows the FAA to grant 333’s for beyond visual line of sight operations (BVLOS). This is important because the farther the drone can fly, the greater the potential economic impact.

 

The reason why a drone delivery exemption  won’t be happening anytime soon is (1) there has been no 333 exemption for BVLOS granted to date, and  (2) all the 333 exemptions granted to date require the drone to be flown by a pilot with a sport certificate or higher and the drone must stay at least 500ft away from all non-participating people and property. It is hard to do package delivery in an urban or residential environment when you need to stay 500ft away from everything.

 

A new 333 exemption will need to be created by Amazon if they go this route. This will take some time.

 

Problem 3: States, Counties, Cities, & Towns All Regulating Drones – Death by a Thousand Papercuts

 

I see the people who want drone delivery falling into three categories: (1) those that value immediately possessing the item more than paying a high price, (2) those that don’t have any other choice (there is no next best alternative or the alternative is outside of their purchasing power), or (3) those that value the item now but not more than a high price.

 

A. Those that Value Immediately Possessing the Item More than Paying a High Price (Early Adopters)

 

There are some areas that are not price sensitive such as:

(1) Those that need delicate, limited, expensive, rare types of medicine immediately because the alternative is injury or death.

(2) Critical pieces of an operation. For example, a large piece of machinery broke down and there are many people (that the company is paying) just sitting around waiting for replacement parts. How much is it per hour to have the machinery NOT running?

(3) The rich guy down by the remote lake wants an anniversary gift, that he forgot to buy, for his wife right now. Maybe this should be in the (1) category because it’s kind of life and death.

Drones provide a great solution for the above categories because these people are interested more in  decreased time than decreased costs.

 

B. Those That do not Have any Other Choice (There is no Next Best Alternative or it is Outside of Their Purchasing Power)

In other situations, the drone might be the only feasible solution due to weather, disaster, lack of infrastructure, etc. (Think hurricane relief or Alaska bush pilots flying supplies into remote villages). If you are delivering to remote areas, you look at things differently. Flexport’s article discussing Matternet’s drone operations in Lesotho explained:

As Raptopoulos of Matternet points out, Google and Amazon’s plans ignore drones’ best feature: they can go where there are no roads.

“One billion people in the world today do not have access to all-season roads,” Raptopoulos told a TED audience in 2013. “We cannot get medicine to them reliably, they cannot get critical supplies, and they cannot get their goods to market in order to create a sustainable income.”

For the Matternet team, the most interesting question was not the cost per delivery. They wanted to compare the cost of the drone network to the cost of building the roads Lesotho so badly lacks.”

 

These two above categories are elastic with price, but the third category, will be affected by the states, counties, cities, or towns creating drone law.  The first two categories might be the early adopters, but they will be the small minority of drone deliveries. Most people are near a road where a delivery truck can get to them and they most likely are not in a life or death situation.

 

C. Those That Value the Item Now but not More Than a High Price.

 

Amazon’s business model is that the drones will provide a lower cost of delivery.

 

Darryl Jenkins, who worked on the economic study outlook for the Association of Unmanned Vehicle Systems International, said in his presentation,“Amazon will be able to push the per unit cost of delivery to at least $1.00 per package causing all other competitors to either adopt or die.” This is because of the economies of scale. But here is the problem, with a greater number of drones and drones operating across the U.S., more and more non-federal drone laws will need to be complied with.

 

Most people have four layers of government applying to them. These governments might have created drone laws. For example, where I used to live on Palm Beach Island, I had four layers of drone laws that applied to me: the Federal Aviation Regulations, the State of Florida’s Freedom from Unwarranted Surveillance Act,[9] Palm Beach County’s ordinance prohibiting model airplane flights in county parks, and Palm Beach Island’s drone ordinance.

 

It isn’t super hard to track the 50 states and the federal government, but we don’t know everything going on with all the counties, cities, villages, boroughs, etc.

Also, local governments use all sorts of different terms to describe the same thing, such as unmanned aircraft, drone, model aircraft, etc. (they like to pretend they are the FAA) which further increases the times it takes to search.

 

These unknown areas are going to have to be checked into which means there is a need for a drone regulatory compliance department in Amazon which means $$$$. If the cost of compliance goes up, Amazon’s business model starts to make less and less sense.

 

Another aspect to these non-federal drone laws is that some of these laws are motivated not by the desire to decrease public risk, but to increase revenue. As a greater number of the non-federal regulators start catching on, Amazon and all the other companies interested in drone delivery start looking like revenue generators for local governments. Even if the local governments aren’t greedy, their focus on safety and protecting their citizens generally results in some type of “safety” requirement that needs to be proven before they issue a permit/license which further drives up operating costs for the companies.

 

We all understand the Amazon most likely won’t save any money at first on drone delivery, but the with more and more drone laws getting created, lobbying, compliance, monitoring, insurance, permitting, etc. will all start eating further into the cost savings which means costs savings won’t be realized for years and years down the line. At a certain point, one or two guys operating out of big delivery van starts to look like a good idea again.

 

 

Conclusion:

 

Many have written on this topic because they see the technology taking off. They see the progress in the technology that many have made and assume that drone delivery will be allowed soon. They get the “West Coast” mindset where they think if enough money and technology are thrown at the problem, it will be fixed regardless of the law. Additionally, most writing on or marketing drone delivery do not understand all the legal issues.

 

Aviation is an “East Coast” industry where the laws out of D.C. will heavily influence the business. Aviation is an extremely regulated environment. The faster the companies operating in this area realize that fact, the better off they will be so that they can actually do these types of operations.

 

Amazon still has a long way to go before drone delivery can be experienced in real life by the American public, not just as a short clip on the internet.

 

Interested in learning more about Part 107?

 

[1] 49 U.S.C. § 40102(a)(2)

[2] Id. at (a)(5).

[3] 14 CFR § 107.31.

[4] 14 CFR § 107.19.

[5] 14 CFR § 107.35.

[6] 14 CFR § 107.25.

[7] 14 CFR § 107.39

[8] 14 CFR § 107.41.

[9] F.S.S. § 934.50.


4 Big Updates to Many FAA Section 333 Exemptions

faa-section-333-exemption-updated5,529 FAA Section 333 Exemption were updated  (36 pages of docket numbers) with a blanket exemption amendment. This is great news as it provides many exemptions with new capabilities which were not possible before.  The FAA has slowly been updating things such as when they updated the blanket COA and when they changed the format of the “stock 333” around 3/7/2016.

Note: this update is only for those listed on those 36 pages who already had an exemption granted. If your petition for exemption was never granted, this does NOT apply to you. This is only for those who obtained an exemption.

Also, make sure you sign up for the newsletter below. I’m rewarding my newsletter subscribers with important information first before I publish things on social media.

 

Important Points of the FAA Section 333 Exemption Update

Don’t want to read? Listen or watch the video while you are doing something! 

 

1. Registration Under Part 48

Many can now register via Part 48 or Part 47. Some of the older 333’s were ONLY Part 47. This is great as the Part 47 registration method is a pain to do. Please remember that the Part 48 registration database is being challenged in the D.C. Circuit Court of Appeals by John Taylor. I’m helping him with the case and I think there are good reasons why the regulations were illegal and should be thrown out. See my article explaining why the regulations were illegally created. If John Taylor is successful, the registration database will be thrown out.

2. “Super List” of UA

The FAA created a giant list of approved aircraft. The FAA became tired of granting 333 exemption amendment requests to add aircraft. To solve this once and for all, the FAA approved the exemption holder for whatever was on the list. The FAA just kept updating the list over time and this met the needs of many; however, if you were granted an exemption prior to around May 2015, you most likely did not have the “super list” provision in your 333 exemption. The super list is specifically listed in docket FAA-2007-3330. Keep checking it as it is continually being updated to add on new aircraft. You should print it out and keep it with you as part of your operating documents.  Make sure your aircraft is located on it!

 

3. Flight Instruction is Allowed

Great job on doing this FAA! This will help promote safety and a culture of professionalism in the drone industry. I always made it a point to tell my flight students working on their private pilot certificates that their certificate was only a certificate allowing them to legally go out and accidentally kill themselves. It was really a license to learn, not to get cocky and start playing “Highway to the Danger Zone.” I instilled in them the need for safety. Additionally, flight instructors are role models for their students and we all know the drone community needs more pros, and less bros.

For a long time, only Kansas State had a 333 exemption that allowed flight instructing. The FAA has subsequently granted some 333 exemptions; however, all the older exemptions would have to petition for amendment to do instruction.

Why would this be beneficial? One example I know of is a large company that has protocols figured out and implemented for 333 exemption operations while they haven’t figured out how to operate under Part 107. Large battleships turn slowly. Another example is where a company has certain COA approvals for controlled airspace they obtained a long time ago. They would rather operate under those COAs than risk trying to obtain a newer airspace authorization. I can understand that. The FAA has been slow at things in the past; however, the FAA does seem to be making great strides in getting the airspace authorizations and waivers approved faster. The most recently granted night waivers were around 30 days from start to finish. One was super-fast at 13 days later; however, there are a few that are past 30 days waiting for the FAA. The one thing that is consistent is the different processors in the waiver and authorizations departments work at different paces.

 

4. Foreigners (Non-U.S. Citizens or Non-Permanent Residents)

The older 333 exemptions did not have a provision to allow the operation of foreign civil aircraft which is “(a) an aircraft of foreign registry that is not part of the armed forces of a foreign nation, or (b) a U.S.-registered aircraft owned, controlled or operated by persons who are not citizens or permanent residents of the United States.” See 14 CFR § 375.1 (emphasis mine). Now you can obtain a Foreign Aircraft Permit to allow a foreigner to operate under the 333.

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Things NOT Changed In the FAA Section 333 Exemption Update

Still Sport Certificate or Higher

Unfortunately, you still must have a sport certificate or higher. A 107 Remote Pilot Certificate or student certificate will NOT work. One thing you might want to consider is if you do have a sport license or higher, doing work in the 333 exemption only aircraft area because that area will have less competition. 55 pound and heavier operations cannot be done under Part 107 but can be done by a 333 exemption. It may be a smart business idea to start focusing on offering 55 pound and heavier services, such as when you need to use a 55 pound+ crop duster, a heavy rig drone for cinematography, etc. for the service. You might be able to command higher profit margins since there are few legal alternative options for clients.

 

Does NOT Extend Previous 333 Expiration Date

The exemption says, “This exemption terminates on the date provided in the petitioner’s original exemption or amendment most recently granted prior to the date of this amendment, unless sooner superseded or rescinded.” Big bummer. If you are interested in hiring me to renew your older 333, contact me.

Side by Side Comparison of the Different FAA Section 333 Exemption Provisions

Please keep in mind that I picked the latest stock 333 for comparison. The exemptions have morphed over the years so your 333 might differ from what is listed as a “stock 333.” Keep in mind that some of the provisions are the same but the number just changed.  Underlining and bold means something is new while bold and strikethrough means it was deleted.

Previous 

Updated 

Same1. The operator is authorized by this grant of exemption to use any aircraft identified on the List of Approved Unmanned Aircraft Systems (UAS) under Section 333 at regulatory docket FAA–2007–3330 at www.regulations.gov, when weighing less than 55 pounds including payload. Proposed operations of any aircraft not on the list currently posted to the above docket will require a new petition or a petition to amend this exemption.
Same2. If operations under this exemption involve the use of foreign civil aircraft the operator would need to obtain a Foreign Aircraft Permit pursuant to 14 CFR § 375.41 before conducting any commercial air operations under this authority. Application instructions are specified in 14 CFR §375.43. Applications should be submitted by electronic mail to the DOT Office of International Aviation, Foreign Air Carrier Licensing Division. Additional information can be obtained via https://cms.dot.gov/policy/aviation-policy/licensing/foreign-carriers.
6. The UA may not be operated at a speed exceeding 87 knots (100 miles per hour). The exemption holder may use either groundspeed or calibrated airspeed to determine compliance with the 87 knot speed restriction. In no case will the UA be operated at airspeeds greater than the maximum UA operating airspeed recommended by the aircraft manufacturer.

 

 

3. The UA may not be operated at a speed exceeding 87 knots (100 miles per hour). The operator may use either groundspeed or calibrated airspeed to determine compliance with the 87 knot speed restriction. In no case will the UA be operated at airspeeds greater than the maximum UA operating airspeed recommended by the aircraft manufacturer.
7. The UA must be operated at an altitude of no more than 400 feet above ground level (AGL). Altitude must be reported in feet AGL.

 

 

4. The UA must be operated at an altitude of no more than 400 feet above ground level (AGL). Altitude must be reported in feet AGL. This limitation is in addition to any altitude restrictions that may be included in the applicable COA.
23. Air Traffic Organization (ATO) Certificate of Waiver or Authorization (COA). All operations shall be conducted in accordance with an ATO-issued COA. The exemption holder may apply for a new or amended COA if it intends to conduct operations that cannot be conducted under the terms of the enclosed COA.5. Air Traffic Organization (ATO) Certificate of Waiver or Authorization (COA). All operations must be conducted in accordance with an ATO-issued COA. The exemption holder must apply for a new or amended COA if it intends to conduct operations that cannot be conducted under the terms of the enclosed COA.
8. The UA must be operated within visual line of sight (VLOS) of the PIC at all times. This requires the PIC to be able to use human vision unaided by any device other than corrective lenses, as specified on the PIC’s FAA-issued airman medical certificate or U.S. driver’s license.6. The Pilot in Command (PIC) must have the capability to maintain visual line of sight (VLOS) at all times. This requires the PIC to be able to use human vision unaided by any device other than corrective lenses, as specified on that individual’s FAA-issued airman medical certificate or valid U.S. driver’s license issued by a state, the District of Columbia, Puerto Rico, a territory, a possession, or the Federal Government, to see the UA.
9. All operations must utilize a VO. The UA must be operated within the VLOS of the PIC and VO at all times. The VO may be used to satisfy the VLOS requirement as long as the PIC always maintains VLOS capability. The VO and PIC must be able to communicate verbally at all times; electronic messaging or texting is not permitted during flight operations. The PIC must be designated before the flight and cannot transfer his or her designation for the duration of the flight. The PIC must ensure that the VO can perform the duties required of the VO.7. All operations must utilize a visual observer (VO). The UA must be operated within the visual line of sight (VLOS) of the VO at all times. The VO must use human vision unaided by any device other than corrective lenses to see the UA. The VO, the person manipulating the flight controls of the small UAS, and the PIC must be able to communicate verbally at all times. Electronic messaging or texting is not permitted during flight operations. The PIC must be designated before the flight and cannot transfer his or her designation for the duration of the flight. The PIC must ensure that the VO can perform the duties required of the VO. Students receiving instruction or observing an operation as part of their instruction may not serve as visual observers.
10. This exemption, the List of Approved Unmanned Aerial Systems (UAS) under Section 333 at regulatory docket FAA–2007–3330 at www.regulations.gov, and all documents needed to operate the UAS and conduct its operations in accordance with the conditions and limitations stated in this grant of exemption, are hereinafter referred to as the operating documents. The operating documents must be accessible during UAS operations and made available to the Administrator upon request. If a discrepancy exists between the conditions and limitations in this exemption and the procedures outlined in the operating documents, the conditions and limitations herein take precedence and must be followed. Otherwise, the operator must follow the procedures as outlined in its operating documents. The operator may update or revise its operating documents. It is the operator’s responsibility to track such revisions and present updated and revised documents to the Administrator or any law enforcement official upon request. The operator must also present updated and revised documents if it petitions for extension or amendment to this grant of exemption. If the operator determines that any update or revision would affect the basis upon which the FAA granted this exemption, then the operator must petition for an amendment to its grant of exemption. The FAA’s UAS Integration Office may be contacted if questions arise regarding updates or revisions to the operating documents8. This exemption, the List of Approved Unmanned Aircraft Systems (UAS) under Section 333 at regulatory docket FAA-2007-3330 at www.regulations.gov, all previous grant(s) of exemption, and all documents needed to operate the UAS and conduct its operations in accordance with the Conditions and Limitations stated in this exemption, are hereinafter referred to as the operating documents. The operating documents must be accessible during UAS operations and made available to the Administrator upon request. If a discrepancy exists between the Conditions and Limitations in this exemption, the applicable ATO-issued COA, and the procedures outlined in the operating documents, the most restrictive conditions, limitations, or procedures apply and must be followed. The operator may update or revise its operating documents as necessary. The operator is responsible for tracking revisions and presenting updated and revised documents to the Administrator or any law enforcement official upon request. The operator must also present updated and revised documents if it petitions for extension or amendment to this exemption. If the operator determines that any update or revision would affect the basis upon which the FAA granted this exemption, then the operator must petition for an amendment to its exemption. The FAA’s UAS Integration Office may be contacted if questions arise regarding updates or revisions to the operating documents.
11. Any UAS that has undergone maintenance or alterations that affect the UAS operation or flight characteristics, e.g., replacement of a flight critical component, must undergo a functional test flight prior to conducting further operations under this exemption. Functional test flights may only be conducted by a PIC with a VO and must remain at least 500 feet from other people. The functional test flight must be conducted in such a manner so as to not pose an undue hazard to persons and property.9. Any UAS that has undergone maintenance or alterations that affect the UAS operation or flight characteristics, e.g. replacement of a flight critical component, must undergo a functional test flight prior to conducting further operations under this exemption. Functional test flights may only be conducted by a PIC with a VO and essential flight personnel only and must remain at least 500 feet from all other people. The functional test flight must be conducted in such a manner so as to not pose an undue hazard to persons and property.
Same

 

 

10. The operator is responsible for maintaining and inspecting the UAS to ensure that it is in a condition for safe operation.
Same11. Prior to each flight, the PIC must conduct a pre-flight inspection and determine the UAS is in a condition for safe flight. The pre-flight inspection must account for all potential discrepancies, e.g. inoperable components, items, or equipment. If the inspection reveals a condition that affects the safe operation of the UAS, the aircraft is prohibited from operating until the necessary maintenance has been performed and the UAS is found to be in a condition for safe flight.
Same as 14 and 15.12. The operator must follow the UAS manufacturer’s maintenance, overhaul,

replacement, inspection, and life limit requirements for the aircraft and aircraft

components. Each UAS operated under this exemption must comply with all

manufacturer safety bulletins.

3. PIC certification: Under this exemption, a PIC must hold either an airline transport, commercial, private, recreational, or sport pilot certificate. The PIC must also hold a current FAA airman medical certificate or a valid U.S. driver’s license issued by a state, the District of Columbia, Puerto Rico, a territory, a possession, or the Federal Government. The PIC must also meet the flight review requirements specified in 14 CFR § 61.56 in an aircraft in which the PIC is rated on his or her pilot certificate.13. PIC certification: Under this grant of exemption, a PIC must hold either an airline transport, commercial, private, recreational, or sport pilot certificate. The PIC must also hold a current FAA airman medical certificate or a valid U.S. driver’s license issued by a state, the District of Columbia, Puerto Rico, a territory, a possession, or the Federal government. The PIC must also meet the flight review requirements specified in 14 CFR § 61.56 in an aircraft in which the PIC is rated on his or her pilot certificate.
4. PIC qualifications: The PIC must demonstrate the ability to safely operate the UAS in a manner consistent with how it will be operated under this exemption, including evasive and emergency maneuvers and maintaining appropriate distances from persons, vessels, vehicles, and structures before operating non-training, proficiency, or experience-building flights under this exemption. PIC qualification flight hours and currency may be logged in a manner consistent with 14 CFR § 61.51(b), however UAS pilots must not log this time in the same columns or categories as time accrued during manned flight. UAS flight time must not be recorded as part of total time.14. PIC qualifications: The PIC must demonstrate the ability to safely operate the UAS in a manner consistent with how it will be operated under this exemption, including evasive and emergency maneuvers and maintaining appropriate distances from persons, vessels, vehicles, and structures before conducting student training operations. Flights for the pilot’s own training, proficiency, or experience-building under this exemption may be conducted under this exemption. PIC qualification flight hours and currency may be logged in a manner consistent with 14 CFR § 61.51(b), however, UAS pilots must not log this time in the same columns or categories as time accrued during manned flight. UAS flight time must not be recorded as part of total time.
15. Training: The operator may conduct training operations when the trainer/instructor is qualified as a PIC under this exemption and designated as PIC for the entire duration of the flight operation. Students/trainees are considered direct participants in the flight operation when manipulating the flight controls of a small UAS and are not required to hold any airman certificate. The student/trainees may be the manipulators of the controls; however, the PIC must directly supervise their conduct and the PIC must also have sufficient override capability to immediately take direct control of the small UAS and safely abort the operation if necessary, including taking any action necessary to ensure safety of other aircraft as well as persons and property on the ground in the event of unsafe maneuvers and/or emergencies for example landing in an empty area away from people and property.
Same

 

16. Under all situations, the PIC is responsible for the safety of the operation. The PIC is also responsible for meeting all applicable Conditions and Limitations as prescribed in this exemption and ATO-issued COA, and operating in accordance with the operating documents. All training operations must be conducted during dedicated training sessions and may or may not be for compensation or hire. The operation must be conducted with a dedicated VO who has no collateral duties and is not the PIC during the flight. The VO must maintain visual sight of the aircraft at all times during flight operations without distraction in accordance with the Conditions and Limitations below. Furthermore, the PIC must operate the UA not closer than 500 feet to any nonparticipating person without exception.
Same17. UAS operations may not be conducted during night, as defined in 14 CFR § 1.1. All operations must be conducted under visual meteorological conditions (VMC). Flights under special visual flight rules (SVFR) are not authorized.
Same18. The UA may not be operated less than 500 feet below or less than 2,000 feet horizontally from a cloud or when visibility is less than 3 statute miles from the PIC.
Same19. For tethered UAS operations, the tether line must have colored pennants or streamers attached at not more than 50 foot intervals beginning at 150 feet above the surface of the earth and visible from at least 1 mile. This requirement for pennants or streamers is not applicable when operating exclusively below the top of and within 250 feet of any structure, so long as the UA operation does not obscure the lighting of the structure.
Same20. For UAS operations where GPS signal is necessary to safely operate the UA, the PIC

must immediately recover/land the UA upon loss of GPS signal.

Same21. If the PIC loses command or control link with the UA, the UA must follow a predetermined route to either reestablish link or immediately recover or land.
22. The PIC must abort the flight operation if circumstances or emergencies that could potentially degrade the safety of persons or property arise. The PIC must terminate flight operations without causing undue hazard to persons or property in the air or on the ground.22. The PIC must abort the flight operation if unpredicted circumstances or emergencies that could potentially degrade the safety of persons or property arise. The PIC must terminate flight operations without causing undue hazard to persons or property in the air or on the ground.
Same23. The PIC is prohibited from beginning a flight unless (considering wind and forecast weather conditions) there is enough available power for the UA to conduct the intended operation and to operate after that for at least five minutes or with the reserve power recommended by the manufacturer if greater.
24. All aircraft operated in accordance with this exemption must be registered in accordance with 14 CFR part 47 or 48, and have identification markings in accordance with 14 CFR part 45, Subpart C or part 48. For applicability and implementation dates of part 48 see 80 FR 78594 (Dec. 16, 2015).24. All aircraft operated in accordance with this exemption must be registered in accordance with 14 CFR part 47 or 48, and have identification markings in accordance with 14 CFR part 45, Subpart C or part 48.
Same25. Documents used by the operator to ensure the safe operation and flight of the UAS and any documents required under 14 CFR §§ 91.9 and 91.203 must be available to the PIC at the Ground Control Station of the UAS any time the aircraft is operating. These documents must be made available to the Administrator or any law enforcement official upon request.
26. The UA must remain clear and give way to all manned aviation operations and activities at all times.26. The UA must remain clear of and give way to all manned aircraft at all times.
27. The UAS may not be operated by the PIC from any moving device or vehicle.27. The UAS may not be operated by the PIC from any moving device or vehicle.
28. All flight operations must be conducted at least 500 feet from all persons, vessels, vehicles, and structures unless when operating:

a. Over or near people directly participating in the operation of the UAS. People directly participating in the operation of the UAS include the PIC, VO, and other consenting personnel that are directly participating in the safe operation of the UA.

b. Near but not over people directly participating in the intended purpose of the UAS operation. People directly participating in the intended purpose of the UAS must be briefed on the potential risks and acknowledge and consent to those risks. Operators must notify the local Flight Standards District Office (FSDO) with a plan of activities at least 72 hours prior to flight operations.

c. Same

d. Same

28. All flight operations must be conducted at least 500 feet from all persons, vessels, vehicles, and structures unless when operating:

a. Over or near people directly participating in the operation of the UAS. People directly participating in the operation of the UAS include the student manipulating the controls, PIC, VO, and other consenting personnel that are directly participating in the safe operation of the UA.

b. Near but not over people directly participating in the intended purpose of the UAS operation. People directly participating in the intended purpose of the UAS (including students in a class not manipulating the controls of the UAS), who must be briefed on the potential risks and acknowledge and consent to those risks. Operators must notify the local Flight Standards District Office (FSDO) with a plan of activities at least 72 hours prior to flight operations.

c. Near nonparticipating persons: Except as provided in subsections (a) and (b) of this section, a UA may only be operated closer than 500 feet to a person when barriers or structures are present that sufficiently protect that person from the UA and/or debris or hazardous materials such as fuel or chemicals in the event of an accident. Under these conditions, the operator must ensure that the person remains under such protection for the duration of the operation. If a situation arises where the person leaves such protection and is within 500 feet of the UA, flight operations must cease immediately in a manner that does not cause undue hazard to persons.

d. Near vessels, vehicles, and structures. Prior to conducting operations the operator must obtain permission from a person with the legal authority over any vessels, vehicles or structures that will be within 500 feet of the UA during operations. The PIC must make a safety assessment of the risk of operating closer to those objects and determined that it does not present an undue hazard.

Same29. All operations shall be conducted over private or controlled-access property with permission from a person with legal authority to grant access. Permission will be obtained for each flight to be conducted.
30. Any incident, accident, or flight operation that transgresses the lateral or vertical boundaries of the operational area as defined by the applicable COA must be reported to the FAA’s UAS Integration Office within 24 hours. Accidents and incidents must be reported to the National Transportation Safety Board (NTSB) in accordance with 49 CFR § 830.5 per instructions contained on the NTSB Web site: www.ntsb.gov.30. Any incident, accident, or flight operation that transgresses the lateral or vertical boundaries of the operational area as defined by the applicable COA must be reported to the FAA’s UAS Integration Office within 24 hours. Accidents must be reported to the National Transportation Safety Board (NTSB) in accordance with its UAS accident reporting requirements.
SameFor operations conducted closer than 500 feet to people directly participating in the intended purpose of the operation, not protected by barriers, the following additional conditions and limitations apply:

31. The operator must have an operations manual that contains at least the following items, although it is not restricted to these items.

a. Operator name, address, and telephone number.

b. Distribution and Revision. Procedures for revising and distributing the operations manual to ensure that it is kept current. Revisions must comply with the applicable Conditions and Limitations in this exemption.

c. Persons Authorized. Specify criteria for designating individuals as directly participating in the safe operation of the UAS. The operations manual must include procedures to ensure that all operations are conducted at distances from persons in accordance with the Conditions and Limitations of the exemption.

d. Plan of Activities. The operations manual must include procedures for the submission of a written plan of activities.

e. Permission to Operate. The operations manual shall specify requirements and procedures that the operator will use to obtain permission to operate over property or near vessels, vehicles, and structures in accordance with this exemption.

f. Security. The manual must specify the method of security that will be used to ensure the safety of nonparticipating persons. This should also include procedures that will be used to stop activities when unauthorized persons, vehicles, or aircraft enter the operations area, or for any other reason, in the interest of safety.

g. Briefing of persons directly participating in the intended operation. Procedures must be included to brief personnel and participating persons on the risks involved, emergency procedures, and safeguards to be followed during the operation.

h. Personnel directly participating in the safe operation of the UAS Minimum Requirements. In accordance with this exemption, the operator must specify the minimum requirements for all flight personnel in the operating manual. The PIC at a minimum will be required to meet the certification standards specified in this exemption.

i. Communications. The operations manual must contain procedures to provide communications capability with participants during the operation. The operator can use oral, visual, or radio communications as along as the participants are apprised of the current status of the operation.

j. Accident Notification. The operations manual must contain procedures for notification and reporting of accidents in accordance with this exemption. In accordance with this exemption, the operating manual and all other operating documents must be accessible to the PIC during UAS operations.

32. At least 72 hours prior to operations, the operator must submit a written Plan of Activities to the local FSDO having jurisdiction over the proposed operating area.

The Plan of Activities must include at least the following:

a. Dates and times for all flights. For seasonal or long-term operations, this can include the beginning and end dates of the timeframe, the approximate frequency (e.g., daily, every weekend), and what times of the day operations will occur. A new plan of activities must be submitted prior to each season or period of operations.

b. Same

c. Make, model, and serial or N-Number of each UAS to be used.

d. Same

e. Same

f. Same

g. A description of the flight activity, including maps or diagrams of the area over which operations will be conducted and the altitudes essential to accomplish the operation. In accordance with this exemption, the Plan of Activities and all other operating documents must be accessible to the PIC during UAS operations. A new Plan of Activities must be submitted should there be any changes to items (a) through (g).

32. At least 72 hours prior to operations, the operator must submit a written Plan of Activities to the local FSDO having jurisdiction over the proposed operating area. The Plan of Activities must include at least the following:

a. Dates and times for all flights. For seasonal or long-term operations, this can include the beginning and end dates of the timeframe, the approximate frequency (e.g. daily, every weekend, etc.), and what times of the day operations will occur. A new plan of activities must be submitted prior to each season or period of operations.

b. Name and phone number of the on-site person responsible for the operation.

c. Make, model, and serial or FAA registration number of each UAS to be used.

d. Name and certificate number of each UAS PIC involved in the operations.

e. A statement that the operator has obtained permission from property owners.Upon request, the operator will make available a list of those who gave

permission.

f. Signature of exemption holder or representative stating the plan is accurate.

g. A description of the flight activity, including maps or diagrams of the area over which operations will be conducted and the altitudes essential to accomplish the operation.

 

How do I check my docket to see if I have this FAA Section 333 exemption amendment?

  1. Go to regulations.gov
  2. Type in your name.
    1. On the left hand side you can narrow your search by typing in the Agency section “FAA.”
  3. Find one of the pieces of paperwork you filed.
  4. Click the Open Docket Folder at the top left.
  5. Search your docket for the newest entry. It should be labeled “U.S. DOT/FAA – Decision/Amendment.”
  6. Click it and print out the PDF to keep with you as part of your operating documents.

 

Conclusion

This will help some of the older 333 exemptions holders be more flexible in their operations.  Please take the time to carefully read the restrictions as they apply to you. If you need help understanding the provision, you need to renew your older 333, or you want a Part 107 waiver or authorization, contact me.

 

Interested in flying under Part 107 instead of the Section 333 Exemption? Check out these resources!


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. Also, you might want to take a look over at University of California’s drone policy PDF.

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-interpretaionsThe 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

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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.

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 altogether 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 soar to new heights of success by integrating drones to save time, money, and lives.

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[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.