Federal Drone Law


Jonathan Rupprecht

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

Singer v. City of Newton-(Case Declaring Local Drone Law Illegal)

The City of Newton, Massachusetts passed a drone ordinance on December 19, 2016. The ordinance requires all drones to be registered, bans drones below 400ft above ground level without property owner permission, and prohibits flights beyond the visual line of sight of the operator.

Dr. Michael Singer, a medical doctor and professor at Harvard, filed suit in the federal district court of Massachusetts. On September 21, 2017, the court ruled that four provisions of the local ordinance were conflict preempted.
 

Table of Contents:

The Problematic Provisions of Newton’s Drone Ordinance
Brief Discussion on Preemption
District Court’s Ruling
How Does the Singer v. City of Newton Case Affect Me?
How Can I Use This Case?
Warning to States, Cities, and Local Governments
Problems With This Ruling/Issues Not Addressed
Actual Text of the Ruling
Actual Text of the Ordinance

The Problematic Provisions of Newton’s Drone Ordinance

The City of Newton passed an ordinance which regulated the flight of all unmanned aircraft. The ordinance that passed had multiple provisions but Singer challenged 4 of them. Interesting to note, at the time of this lawsuit, Massachusetts didn’t have an state level drone laws.  I have organized the ordinance provisions below to ease in conceptualization.

1. Registration.
Section (b) of the ordinance says, “Owners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .”

2. Operational Restrictions.
A. Altitude
Subsection (c)(1)(a) prohibits pilotless aircraft flight below an altitude of 400 feet over any private property without the express permission of the property owner.

Subsection (c)(1)(e) prohibits pilotless aircraft flight over public property, at any altitude, without prior permission from Newton.

B. Beyond Line of Sight of the Operator
Subsection (c)(1)(b) states that no pilotless aircraft may be operated “at a distance beyond the visual line of sight of the Operator.” The Ordinance neither defines the term “Operator,” nor sets an altitude limit.

Brief Discussion on Preemption

Article 6 of the United States Constitution basically stands for where federal and state law interact/conflict, federal law wins. This is called preemption. There are two types of preemption: express and implied preemption. Express is easy to figure out as the law states it clearly. However, with implied preemption, things are more difficult. Courts have to figure what to do, or really what Congress should have said, but didn’t, and now the court has to clean up the mess. There are two types of implied preemption: field and conflict. Field preemption is where courts infer that Congress has regulated the area so much that they did not intend to leave any area of that field available to be regulated by the states. Conflict preemption is where courts imply that Congress did not intend to allow state laws to substantially frustrate the implementation of the federal law.
Dr. Michael Singer filed the lawsuit and alleged the 4 provisions above were field and conflict preempted by federal statutes and federal regulations.

District Court’s Ruling:

The court ruled the local ordinance was conflict preempted. Singer raised 4 issues and the court responded to each them.

1. Registration.

Section (b) of the ordinance says, “Owners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office, either individually or as a member of a club . . . .”

Court: The City of Newton argued that the Taylor v. FAA case created a void to allow registration however there is no void created by the Taylor case. The FAA intended to be the exclusive register of unmanned aircraft. Therefore, this ordinance is conflict preempted.

2. Operational Restrictions.
A. Altitude

Subsection (c)(1)(a) prohibits pilotless aircraft flight below an altitude of 400 feet over any private property without the express permission of the property owner.

Court: This is conflict preempted because Congress intended the FAA to use airspace to integrate drones. The FAA picked 0-400ft above ground level for non-recreational flyers. This ordinance effectively frustrates Congress’ and FAA’s implementation of the integration of drones into the national airspace from 0-400ft above the ground level.

Subsection (c)(1)(e) prohibits pilotless aircraft flight over public property, at any altitude, without prior permission from Newton.

Court: This is conflict preempted because there is no altitude limit, it goes up into navigable airspace.

B. Beyond Line of Sight of the Operator

Subsection (c)(1)(b) states that no pilotless aircraft may be operated “at a distance beyond the visual line of sight of the Operator.” The Ordinance neither defines the term “Operator,” nor sets an altitude limit.

Court: The Ordinance seeks to regulate the method of operating of drones, necessarily implicating the safe operation of aircraft. Courts have recognized that aviation safety is an area of exclusive federal regulation. The Ordinance limits the methods of piloting a drone beyond that which the FAA has already designated, while also reaching into navigable space. Intervening in the FAA’s careful regulation of aircraft safety cannot stand; thus subsection (c)(1)(b) is preempted.

In short, drone registration, complete drone bans, regulating navigable airspace, or limiting “the methods of piloting a drone beyond that which the FAA has already designated” are conflict preempted.

How Does the Singer v. City of Newton Case Affect Me?

This case is only binding in the jurisdiction of the federal district court of Massachusetts. It only struck down 4 provisions of the ordinance, not all of it.  Courts from other jurisdictions can look at this ruling but do NOT need to follow it. I suspect, however, other courts will likely follow the same rationale and invalidate state and local drone laws on the grounds they are conflict preempted ONLY. They will likely not answer field preemption questions.

Keep in mind that this case can be appealed to the 1st Federal Circuit Court of Appeals (Rhode Island, Massachusetts, New Hampshire, and Maine) and ruled upon which would result in more people being affected. I don’t know if it will be appealed.

How Can I Use This Case?

This case is extremely important in giving state and local governments guidance on what not to do. You should send this case to any elected officials who have passed a drone law or who are considering passing a drone law.

Warning to States, Cities, and Local Governments:

Many states, cities, towns, etc. have passed drone laws which would most likely be held by this judge to be conflict preempted. This ruling is only for the jurisdiction of the federal district court of Massachusetts, but other courts around the country can be persuaded by the reasoning in this ruling. In other words, this judge teed up how other courts can easily answer these preemption laws.

This judge ruled that drone registration, complete drone bans, regulating navigable airspace, and limiting “the methods of piloting a drone beyond that which the FAA has already designated” are all conflict preempted.

Problems With This Ruling/Issues Not Addressed:

• The court ruled on the grounds of conflict preemption but did not rule that aviation was field preempted or whether the airspace was expressly preempted.
• United States v. Causby is a U.S. Supreme Court case which raises the idea of a person owning airspace from the ground up to the “immediate reaches of the enveloping atmosphere.” What if the City of Newton were to create drone laws that applied to Causby airspace over their property or require permission to operate in Causby airspace over private property?
• The judge gave too much deference to the FAA’s guidance document to state and local governments when preemption is primarily focusing on Congress, not an agency’s thoughts, which constantly change, on what it thinks Congress wanted.
• With conflict preemption, the City of Newton can just go back and rework the law and see if Singer files suit again or see if they get struck down again. It would have been more beneficial for the drone industry to have a ruling on whether the airspace was expressly preempted or the field of aviation is field preempted. Instead, the court ruled very narrowly to resolve the case, but leave many issues on the table.
• The court struck down particular provisions which means other states and sub-divisions will just rework their laws to not step on any of the particular “land mines” that the City of Newton stepped on.
• How low does navigable airspace descend for drones? I would argue it goes all the way to the blade of grass because that is where drones take off and land from but the judge seems to indicate navigable airspace is somehow related to 14 CFR 91.119.
• What happens if the state or government does a copy-paste of the FAA regulations or says something along the lines of “You must do whatever the FAA says”?

Actual Text of the Ruling

 

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

 

MICHAEL S. SINGER,

Plaintiff,

CITY OF NEWTON,

Defendant.

 

YOUNG, D.J. September 21, 2017

 

FINDINGS OF FACT, RULINGS OF LAW, & ORDER

 

  1. INTRODUCTION

 

The crux of this dispute is whether portions of a certain

ordinance (the “Ordinance”) passed by the City of Newton

(“Newton”) on December 19, 2016 are preempted. First Am. Compl.

Declaratory and Injunctive Relief, ECF No. 12. Michael S.

Singer (“Singer”) challenges portions of the Ordinance which

require that all owners of pilotless aircraft (commonly referred

to as “drones” or “UAS”) register their pilotless aircraft with

Newton, and also prohibit operation of pilotless aircraft out of

the operator’s line of sight or in certain areas without permit

or express permission. Id.; Def. City Newton’s Mem. Law Supp.

Cross Mot. Summ. J. and Opp’n Pl.’s Mot. Summ. J., Ex. 2, Newton

Ordinances § 20-64, ECF No. 40-3.

 

 

In early March, Newton answered Singer’s complaint, Answer

Def. City of Newton First Am. Compl., ECF No. 17, and both

parties appeared before the Court soon after, when they agreed

to cross-file motions for summary judgment and proceed on a case

stated basis,1 Electronic Clerk’s Notes, ECF No. 21. Both

parties subsequently filed motions for summary judgment, Pl.’s

Corrected Mot. Summ. J., ECF No. 34; Def. City of Newton’s Cross

Mot. Summ. J., ECF No. 39, and fully briefed the issues, Pl.’s

Corrected Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”), ECF No. 35;

Pl.’s Resp. Def.’s Cross-Mot. Summ. J. (“Pl.’s Resp.”), ECF No.

50; Pl.’s Resp. City’s Statement Undisputed Facts (“Pl.’s Resp.

Facts”), ECF No. 51; Def. City Newton’s Mem. Law Supp. Cross

Mot. Summ. J. and Opp’n Pl.’s Mot. Summ. J. (“Def.’s Mem.”), ECF

No. 40; Def. City of Newton’s Statement Undisputed Facts Supp.

Cross Mot. Summ. J. and Resps. Pl.’s Statement Undisputed

Material Facts Supp. Mot. Summ. J. (“Def.’s Facts”), ECF No. 41;

1 The case stated procedure allows the Court, with the

parties’ agreement, to render a judgment based on the largely

undisputed record in cases where there are minimal factual

disputes. TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 n.6

(1st Cir. 2007). In its review of the record, “[t]he [C]ourt is

. . . entitled to ‘engage in a certain amount of factfinding,

including the drawing of inferences.’” Id. (quoting United

Paperworkers Int’l Union Local 14 v. International Paper Co., 64

F.3d 28, 31 (1st Cir. 1995)).See also Amici Curiae Br. (“Amicus Br.”), ECF No. 57.2 After

oral argument on June 13, 2017, this Court took the matter under

advisement. Electronic Clerk’s Notes, ECF No. 59.

 

2. FINDINGS OF FACT

Newton is a municipality in the Commonwealth of

Massachusetts and is organized under a charter pursuant to the

Home Rule Amendment of the Massachusetts Constitution. Pl.’s

Resp. Facts ¶ 1; Def.’s Facts ¶ 1. Singer resides in Newton.

Am. Compl. ¶ 22. He is a Federal Aviation Administration

(“FAA”)-certified small unmanned aircraft pilot and owns and

operates multiple drones in Newton. Id. ¶¶ 22, 25. Singer does

not operate or register his drones as a hobbyist. Tr. Case-

Stated Hearing (“Tr.”) 20:15-18, ECF No. 60.

In August 2015, members of Newton’s City Council proposed

discussing the possibility of regulating drones for the

principal purpose of protecting the privacy interests of

Newton’s residents. Pl.’s Resp. Facts ¶ 3; Def.’s Facts ¶ 3.

On March 23, 2016, an initial draft of the Ordinance was

presented for discussion. See Def.’s Mem., Ex. 3, Public Safety

& Transportation Committee Report dated Mar. 23, 2016 1, ECF No.

40-4. Following further inquiry and amendment, see, e.g.,

Def.’s Mem., Ex. 7, Public Safety & Transportation Committee

Report dated May 5, 2016 1, ECF No. 40-8; Def.’s Mem., Ex. 9,

Public Safety & Transportation Committee Report dated Sept. 7,

2016 6-7, ECF No. 40-10, but without FAA approval, Def.’s Mem.,

Ex. 16, Def. City of Newton’s Answers Pl.’s First Set Interrogs.

(“Def.’s Answers Interrogs.”) 3, ECF No. 40-17, Newton’s City

Council approved the final Ordinance on December 19, 2016,

Def.’s Mem., Ex. 12, Public Safety & Transportation Committee

Report dated Dec. 19, 2016 1, ECF No. 40-13.

 

The Ordinance states in part:

Purpose: The use of pilotless aircraft is an increasingly

popular pastime as well as learning tool. It is important

to allow beneficial uses of these devices while also

protecting the privacy of residents throughout the City.

In order to prevent nuisances and other disturbances of the

enjoyment of both public and private space, regulation of

pilotless aircraft is required. The following section is

intended to promote the public safety and welfare of the

City and its residents. In furtherance of its stated

purpose, this section is intended to be read and

interpreted in harmony with all relevant rules and

regulations of the Federal Aviation Administration, and any

other federal, state and local laws and regulations.

 

 

Def.’s Mem., Ex. 2, Newton Ordinances § 20-64, ECF No. 40-3.

“Pilotless aircraft” is defined as “an unmanned, powered aerial

vehicle, weighing less than 55 pounds, that is operated without

direct human contact from within or on the aircraft.” Id. § 20-

64(a). In section (b), the Ordinance imposes certain

registration requirements upon owners of all pilotless aircraft.

Id. § 20-64(b). Section (c) sets forth operating prohibitions, including, inter alia, a ban on the use of a pilotless aircraft

below an altitude of 400 feet over private property without the

express permission of the owner of the private property, id.

  • 20-64(c)(1)(a), “beyond the visual line of sight of the

Operator,” id. § 20-64(c)(1)(b), “in a manner that interferes

with any manned aircraft,” id. § 20-64(c)(1)(c), over Newton

city property without prior permission, id. § 20-64(c)(1)(e), or

to conduct surveillance or invade any place where a person has a

reasonable expectation of privacy, id. § 20-64(c)(1)(f)-(g).

Violations of the Ordinance are punishable by a $50 fine

following a one-time warning. Id. § 20-64(f).

 

III. RULINGS OF LAW

Specifically, Singer challenges four subsections of the

Ordinance: the registration requirements of section (b) and the

operation limits of subsections (c)(1)(a), (c)(1)(b), and

(c)(1)(e). Pl.’s Mem 3-4; Pl.’s Resp. i. Singer argues that

the Ordinance is preempted by federal law because it attempts to

regulate an almost exclusively federal area of law, Pl.’s Mem.

6-15, in a way that conflicts with Congress’s purpose, id. at

14-15. In turn, Newton posits that the Ordinance is not

preempted by federal law because it falls within an area of law

that the FAA expressly carved out for local governments to

regulate, Def.’s Mem. 8-10, and thus can be read in harmony with

federal aviation laws and regulations, id. at 10-11.

A. Preemption Standards

The Supremacy Clause of the United States Constitution

provides that federal laws are supreme, U.S. Const. art. VI, cl.

2, thus requiring that federal laws preempt any conflicting

state or local regulations, see Maryland v. Louisiana, 451 U.S.

725, 746 (1981) (citing McCulloch v. Maryland, 4 Wheat. 316, 427

(1819)). Under our federalist system, however, a court must be

wary of invalidating laws in areas traditionally left to the

states unless the court is entirely convinced that Congress

intended to override state regulation. See, e.g., Gregory v.

Ashcroft, 501 U.S. 452, 460 (1991) (citing Atascadero State

Hosp. v. Scanlon, 473 U.S. 234, 243 (1985)). In contrast, if a

state government attempts to regulate an area traditionally

occupied by the federal government, a court need not seek to

avoid preemption. See United States v. Locke, 529 U.S. 89, 108

(2000). Neither of these circumstances requires that Congress

explicitly have stated its purpose; “[t]he question, at bottom,

is one of statutory intent.” Morales v. Trans World Airlines,

Inc., 504 U.S. 374, 383 (1992).

 

If Congress has not expressly preempted an area of law,

then a court must determine whether field or conflict preemption

is evident. See French v. Pan Am Express, Inc., 869 F.2d 1, 2

(1st Cir. 1989). Field preemption occurs where federal

regulation is so pervasive and dominant that one can infer

Congressional intent to occupy the field. See Massachusetts

Ass’n of Health Maint. Orgs. v. Ruthardt, 194 F.3d 176, 179 (1st

Cir. 1999) (citing Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947); French, 869 F.2d at 2). Conflict preemption

arises when compliance with both state and federal regulations

is impossible or if state law obstructs the objectives of the

federal regulation. See Grant’s Dairy – Me., LLC v.

Commissioner of Me. Dept. of Agric., Food & Rural Res., 232 F.3d

8, 15 (1st Cir. 2000) (citing Gade v. National Solid Wastes

Mgmt. Ass’n, 505 U.S. 88, 98 (1992)).

B. The Federal Aviation Administration

Congress has stated that “[t]he United States Government

has exclusive sovereignty of airspace of the United States.” 49

U.S.C. § 40103(a)(1). This declaration does not preclude states

or municipalities from passing any valid aviation regulations,

see Braniff Airways v. Nebraska State Bd. of Equalization &

Assessment, 347 U.S. 590, 595 (1954), but courts generally

recognize that Congress extensively controls much of the field,

see, e.g., Chicago & S. Air Lines, Inc. v. Waterman Steamship

Corp., 333 U.S. 103, 105, 107 (1948); United Parcel Serv., Inc.

Flores-Galarza, 318 F.3d 323, 336 (1st Cir. 2003).

Accordingly, where a state’s exercise of police power infringes

upon the federal government’s regulation of aviation, state law

is preempted. See City of Burbank v. Lockheed Air Terminal

Inc., 411 U.S. 624, 638-39 (1973).

In the FAA Modernization and Reform Act of 2012, Congress

directed the FAA to “develop a comprehensive plan to safely

accelerate the integration of civil unmanned aircraft systems

into the national airspace system,” FAA Modernization and Reform

Act of 2012, Pub. L. No. 112-95 § 332, 126 Stat. 11, 73 (2012)

(codified at 49 U.S.C. § 40101 note), while limiting the FAA

from “promulgat[ing] any rule or regulation regarding a model

aircraft,” id. § 336(a). Under this directive, the FAA

promulgated 14 C.F.R. part 107, which declares that it “applies

to the registration, airman certification, and operation of

civil small unmanned aircraft systems[3] within the United

States.” 14 C.F.R. § 107.1(a). The rule requires, inter alia,

that anyone controlling a small unmanned aircraft system

register with the FAA, id. §§ 91.203, 107.13; and keep the

aircraft within the visual line of sight of the operator or a

designated visual observer, id. §§ 107.3, 107.31, and below an

altitude of 400 feet above ground level or within a 400 foot

radius of a structure, id. § 107.51(b).

 

 

  1. Field Preemption

Singer argues that because the federal government regulates

unmanned aircraft and local aircraft operations, there is

federal intent to occupy the field. Pl.’s Mem. 6-11; Pl.’s

Resp. 3; see also Amicus Br. 7-29. Newton does not challenge

that aviation is a traditionally federal field, but counters

that federal regulations explicitly grant local authorities the

power to co-regulate unmanned aircraft. Def.’s Mem. 8-11.

The FAA has stated:

 

[C]ertain legal aspects concerning small UAS use may be

best addressed at the State or local level. For example,

State law and other legal protections for individual

privacy may provide recourse for a person whose privacy may

be affected through another person’s use of a UAS.

. . . The Fact Sheet also summarizes the Federal

responsibility for ensuring the safety of flight as well as

the safety of people and property on the ground as a result

of the operation of aircraft. Substantial air safety

issues are implicated when State or local governments

attempt to regulate the operation of aircraft in the

national airspace. The Fact Sheet provides examples of

State and local laws affecting UAS for which consultation

with the FAA is recommended and those that are likely to

fall within State and local government authority. For

example, consultation with FAA is recommended when State or

local governments enact operation UAS restrictions on

flight altitude, flight paths; operational bans; or any

regulation of the navigable airspace. The Fact Sheet also

notes that laws traditionally related to State and local

police power — including land use, zoning, privacy,

trespass, and law enforcement operations — generally are

not subject to Federal regulation.

 

81 Fed. Reg. 42063 § (III)(K)(6). Thus, the FAA explicitly

contemplates state or local regulation of pilotless aircraft,

defeating Singer’s argument that the whole field is exclusive to the federal government. The FAA’s guidance, however, does not

go quite as far as Newton argues — rather than an express

carve-out for state and localities to regulate, the guidance

hints that whether parallel regulations are enforceable depends

on the principles of conflict preemption.4

D. Conflict Preemption

Singer argues that the challenged sections of the Ordinance

obstruct federal objectives and directly conflict with federal

regulations. Pl.’s Mem. 11-17. Newton fails to respond

specifically to these arguments, again asserting that the FAA

has granted states and localities the power to co-regulate

pilotless aircraft. Def.’s Mem. 8-11. The Court addresses each

challenged subsection of the Ordinance in turn.

 

  1. Section (b)

Singer argues that section (b) of the Ordinance infringes

upon and impermissibly exceeds the FAA’s exclusive registration

requirements. Pl.’s Mem. 11-15; Pl.’s Resp. 6-7. Section (b)

states: “Owners of all pilotless aircraft shall register their

pilotless aircraft with the City Clerk’s Office, either

individually or as a member of a club . . . .” Newton

Ordinances § 20-64(b). The Ordinance defines “pilotless aircraft” as “an unmanned, powered aerial vehicle, weighing less

than 55 pounds, that is operated without direct human contact

from within or on the aircraft.” Id. § 20-64(a).

The FAA has also implemented mandatory registration of

certain drones. See 14 C.F.R. §§ 48.1-48.205. Although such

registration initially applied both to model and commercial

drones, the FAA may not require registration of model aircraft,

because doing so would directly conflict with the Congressional

mandate in the FAA Modernization and Reform Act. See Taylor v.

Huerta, 856 F.3d 1089, 1092, 1094 (D.C. Cir. 2017). Newton

argues that this space creates a void in which the city may

regulate drones. Tr. 9:5-10:1. The FAA, however, explicitly

has indicated its intent to be the exclusive regulatory

authority for registration of pilotless aircraft: “Because

Federal registration is the exclusive means for registering UAS

for purposes of operating an aircraft in navigable airspace, no

state or local government may impose an additional registration

requirement on the operation of UAS in navigable airspace

without first obtaining FAA approval.” Def.’s Mem., Ex. 14,

State and Local Regulation of Unmanned Aircraft Systems (UAS)

Fact Sheet5 (“FAA UAS Fact Sheet”) 2, ECF No. 40-15. Newton did

5 Although the FAA UAS Fact Sheet is not a formal rule, it

is the FAA’s interpretation of its own rule, which this Court

accords deference under Bowles v. Seminole Rock & Sand Co., 325

U.S. 410, 413-14 (1945). not obtain FAA approval before enacting the Ordinance. Def.’s

Answers Interrogs. 3. Further, regardless of whether there is

some space that would allow Newton to require registration of

model drones, here Newton seeks to register all drones, Tr.

10:3-14, without limit as to the at which altitude they operate,

in clear derogation of the FAA’s intended authority.

Accordingly, the Ordinance’s registration requirements are

preempted.

 

  1. Subsections (c)(1)(a) and (c)(1)(e)

Singer argues that subsections (c)(1)(a) and (c)(1)(e)

conflict with FAA-permitted flight, Pl.’s Mem. 11, and restrict

flight within the navigable airspace, id. at 12-14. Subsection

(c)(1)(a) prohibits pilotless aircraft flight below an altitude

of 400 feet over any private property without the express

permission of the property owner. Newton Ordinances § 20-

64(c)(1)(a). Subsection (c)(1)(e) prohibits pilotless aircraft

flight over public property without prior permission from

Newton. Id. § 20-64(c)(1)(e). Notably, subsection (c)(1)(e)

does not limit its reach to any altitude. See id. This alone

is a ground for preemption of the subsection because it

certainly reaches into navigable airspace, see 49 U.S.C.

40102(a)(32); 14 C.F.R. § 91.119. Subsections (c)(1)(a) and

(c)(1)(e) work in tandem, however, to create an essential ban on

drone use within the limits of Newton. Nowhere in the city may an individual operate a drone without first having permission

from the owner of the land below, be that Newton or a private

landowner.

 

The FAA is charged with “prescrib[ing] air traffic

regulations on the flight of aircraft . . . for —

(A) navigating, protecting, and identifying aircraft;

(B) protecting individuals and property on the ground; [and]

(C) using the navigable airspace efficiently.” 49 U.S.C.

40103(b)(2). In 2012, Congress tasked the FAA with

“develop[ing] a comprehensive plan to safely accelerate the

integration of civil unmanned aircraft systems into the national

airspace system.” Pub. L. No. 112-95 § 332. In so doing, the

FAA mandated that drone operators keep drones below an altitude

of 400 feet from the ground or a structure. 14 C.F.R.

107.51(b). Newton’s choice to restrict any drone use below

this altitude thus works to eliminate any drone use in the

confines of the city, absent prior permission. This thwarts not

only the FAA’s objectives, but also those of Congress for the

FAA to integrate drones into the national airspace. Although

Congress and the FAA may have contemplated co-regulation of

drones to a certain extent, see 81 Fed. Reg. 42063

  • (III)(K)(6), this hardly permits an interpretation that

essentially constitutes a wholesale ban on drone use in Newton.

Accordingly, subsections (c)(1)(a) and (c)(1)(e) are preempted.

 

  1. Subsection (c)(1)(b)

Singer argues that subsection (c)(1)(b) conflicts with the

FAA’s visual observer rule and related waiver process, which

only the FAA can modify. Pl.’s Mem. 13 (citing 49 U.S.C.

  • 106(f)(2), (g)(1); 14 C.F.R. §§ 107.31, 107.205). Subsection

(c)(1)(b) states that no pilotless aircraft may be operated “at

a distance beyond the visual line of sight of the Operator.”

Newton Ordinances § 20-64(c)(1)(b). The Ordinance neither

defines the term “Operator,” nor sets an altitude limit.

The FAA “requires a delicate balance between safety and

efficiency, and the protection of persons on the ground . . . .

The interdependence of these factors requires a uniform and

exclusive system of federal regulation.” City of Burbank, 411

U.S. at 638-39 (internal citations omitted). The Ordinance

seeks to regulate the method of operating of drones, necessarily

implicating the safe operation of aircraft. Courts have

recognized that aviation safety is an area of exclusive federal

regulation. See, e.g., Goodspeed Airport LLC v. East Haddam

Inland Wetlands & Watercourses Comm’n, 634 F.3d 206, 208 (2d

Cir. 2011) (“Congress has established its intent to occupy the

entire field of air safety, thereby preempting state regulation

of that field.”); US Airways, Inc. v. O’Donnell, 627 F.3d 1318,

1326 (10th Cir. 2010) (“[F]ederal regulation occupies the field

of aviation safety to the exclusion of state regulations.”); Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007)

(“Congress has indicated its intent to occupy the field of

aviation safety.”). The First Circuit, in fact, has ruled “that

Congress intended to occupy the field of pilot regulation

related to air safety.” French, 869 F.2d at 4. In French, the

First Circuit took note of Congress’s delegation of authority to

the FAA to issue the certificate — and the terms for obtaining

it — required for any person to pilot a commercial aircraft.

See id. at 3. Concluding that this grant of authority and the

FAA’s subsequent regulations expressed Congress’s intent to

preempt any state law in the area, id. at 4, the First Circuit

struck down Rhode Island’s statute requiring airline pilots to

submit to drug testing, see id. at 7.

 

The circumstances are not so different here. Congress has

given the FAA the responsibility of regulating the use of

airspace for aircraft navigation and to protect individuals and

property on the ground, 49 U.S.C. § 40103(b)(2), and has

specifically directed the FAA to integrate drones into the

national airspace system, Pub. L. No. 112-95 § 332. In

furtherance of this duty, the FAA has designated specific rules

regarding the visual line of sight for pilotless aircraft

operation. See 14 C.F.R. §§ 107.31-35, 107.205. First, the FAA

requires either that (1) a remote pilot both command and

manipulate the flight controls or (2) a visual observer be able to see the drone throughout its flight. Id. § 107.31. The

regulations define “visual observer” as “a person who is

designated by the remote pilot in command to assist the remote

pilot in command and the person manipulating the flight controls

of the small UAS to see and avoid other air traffic or objects

aloft or on the ground.” Id. § 107.3. Second, the FAA allows

waiver of the visual observer rule. Id. §§ 107.200, 205.

The Ordinance limits the methods of piloting a drone beyond

that which the FAA has already designated, while also reaching

into navigable space. See Newton Ordinances § 20-64(c)(1)(b).

Intervening in the FAA’s careful regulation of aircraft safety

cannot stand; thus subsection (c)(1)(b) is preempted.

 

CONCLUSION

For the foregoing reasons, this Court holds that Ordinance

sections (b), (c)(1)(a), (c)(1)(b), and (c)(1)(e) are preempted

and judgment will enter so declaring. As it is unchallenged,

the remainder of Newton’s Ordinance stands. Of course, nothing

prevents Newton from re-drafting the Ordinance to avoid conflict

preemption.

 

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

DISTRICT JUDGE

 

Actual Text of Newton’s Ordinance

Sec. 20-64. Pilotless Aircraft Operation.

Purpose: The use of pilotless aircraft is an increasingly popular pastime as well as learning tool. It is important

to allow beneficial uses of these devices while also protecting the privacy of residents throughout the City. In

order to prevent nuisances and other disturbances of the enjoyment of both public and private space, regulation of

pilotless aircraft is required. The following section is intended to promote the public safety and welfare of the City

and its residents. In furtherance of its stated purpose, this section is intended to be read and interpreted in harmony

with all relevant rules and regulations of the Federal Aviation Administration, and any other federal, state and

local laws and regulations.

 

(a) Definitions:

Pilotless Aircraft – an unmanned, powered aerial vehicle, weighing less than 55 pounds, that is operated

without direct human contact from within or on the aircraft.

(b) Registration: Owners of all pilotless aircraft shall register their pilotless aircraft with the City Clerk’s Office,

either individually or as a member of a club, as follows:

(1) Individual Registration: Individual owners of pilotless aircraft shall register each pilotless aircraft with the

City Clerk’s office, prior to operation. The cost of registration shall be $10.00 per Owner and such cost of

registration shall include all pilotless aircraft owned by the Owner. Owners must have proof of

registration in their possession when operating a pilotless aircraft. Registration shall include the

following:

  1. a) The owner’s name, address, email address and phone number;
  2. b) The make, model, and serial number, if available, of each pilotless aircraft to be registered;
  3. c) A copy of the Owner’s Federal Aviation Administration Certificate of Registration for pilotless

aircraft;

 

(2) Club Registration: Members of a pilotless aircraft hobby club may register their pilotless aircraft through a

responsible adult member of the Club. Each Club shall be issued a single identifying registration number

by the City Clerk’s Office to be affixed to each pilotless aircraft belonging to members of the Club. The

cost of Club Registration shall be $10 per Club and the cost of registration shall include all members of

that Club. The responsible adult member shall update the Club’s roster of members with the Clerk’s

office on an annual basis. All other requirements of Section 2(a)(i-iii) shall apply to Club registration.

(c) Operating Prohibitions. The use and operation of all pilotless aircraft within the City shall be subject to the

following prohibitions.

(1) No pilotless aircraft shall be operated:

  1. a) over private property at an altitude below 400 feet without the express permission of the owner of said private property;
  2. b) at a distance beyond the visual line of sight of the Operator;
  3. c) in a manner that interferes with any manned aircraft;
  4. d) in a reckless, careless or negligent manner;
  5. e) over any school, school grounds, or other City property or sporting event without prior permission

from the City, unless a permit is required as in Section 4, below;

  1. f) for the purpose of conducting surveillance unless expressly permitted by law or court order;
  2. g) for the purpose of capturing a person’s visual image, audio recording or other physical impression in

any place where that person would have a reasonable expectation of privacy;

  1. h) over any emergency response efforts;
  2. i) with the intent to harass, annoy, or assault a person, or to create or cause a public nuisance;
  3. j) in violation of federal or state law, or any Ordinance of the City of Newton.

(2) The Chief of Police, or designee, may prohibit the use or operation of pilotless aircraft where it is allowed,

or allow the operation of pilotless aircraft where it is prohibited, during an impending or existing

emergency, or when such use or operation would pose a threat to public safety.

(d) Permit May be Required:

 

(1) Individual Permits: A permit may be required to use land maintained by the Parks and Recreation

Department, or by any other Department or Commission of the City, to launch or land a pilotless aircraft.

Such permits may be issued by the Parks and Recreation Department Head, or designee, or the City entity

charged with managing the property, or designee. Individual operators shall adhere to the registration

requirements of Section 2 above.

 

(2) Event Permits: The Parks and Recreation Department, or any Department or Commission charged with

managing land owned by the City, may issue Permits for groups and special events. Such Event Permits

will be issued to a responsible person who will insure that all operators participating in the event adhere to

the requirements of this ordinance, except that individual participants in an event under this subsection are

not required to register in accordance with Section 2.

 

(3) Educational Permits: The Parks and Recreation Department, or any other City agency with authority over

the use and maintenance of City land, may permit the operation of pilotless aircraft for educational

purposes. Educational permits must be issued to a responsible adult, and in conjunction with an

educational purpose sanctioned by an educational organization.

 

(e) Noise Ordinance: All Operators shall comply with the Noise Ordinance at Section 20-13, as amended, at all

times while operating pilotless aircraft within the City.

(f) Penalties: A violation of any section of this Ordinance shall result in a warning for the first offense and shall

be punishable by a fine of $50.00 for each offense thereafter.

(g) Separate Violations: Action taken pursuant to this section shall not bar any separate action by any other City

Department for any other violations.

(h) Severability: If any provision of this section is held to be invalid by a court of competent jurisdiction then

such provision shall be considered severable from the remaining provisions, which shall remain in full force and

effect.

(i) Regulations: The City and its Departments may promulgate rules, regulations and policies for the

implementation of this Ordinance. (Ord. No. A-96, 12-19-16)


Jonathan Rupprecht

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

Drone Legislation Directory (Updated to 2017)

drone-legislation-capitol-buildingI’m going to break the Drone Legislation Directory up into two sections: passed drone legislation and proposed drone legislation.

I’m using the term very loosely to apply to laws that affect hobby/civilian drones in some way. For example, the National Defense Authorization Act of 2017 is primarily military focused but made it legal for the Secretary of Defense to shoot down civilian drones over certain locations.

This page applies ONLY to federal drone legislation, not state. Interested in passed state drone laws? I have a whole page on drone laws (state and international).

I’m presently working on this article so there are gaps and missing proposed acts. I should have them all up sometime soon.

Passed Drone Legislation

Proposed Drone Legislation

Most of these bills were proposed but died very shortly after being introduced.

2017

  1. 21st Century AIRR Act (H.R.2997) from Rep. Shuster.
  2. Drone Operator Safety Act of 2017 (H.R.3644/S.1755) Senator Whitehouse & Representative Langevin
  3. Safe DRONE Act of 2017 (S1410) from Senator Mark Warner.
  4. FLIGHT R&D Act (H.R.3198 ) from Rep. Knight
  5. Aeronautics Innovation Act (H.R.3033) from Rep. Knight.
  6. Federal Aviation Administration Reauthorization Act of 2017 (S.1405 ) from Sen. Thune.
  7. Drone Innovation Act of 2017 (HR 2930) from Rep. Lewis
  8. Drone Federalism Act of 2017 (S1272) Sen. Feinstein.
  9. Military Asset Protection Act (H.R.1968) from Rep. Dunn
  10. Wildfire Airspace Protection Act of 2017 (H.R.1138) from Rep. Cook.
  11. Drone Aircraft Privacy and Transparency Act of 2017 (H.R.1526 ) Rep. Welch and (S631) from Sen. Markey.
  12. No Armed Drones Act of 2017 (HR 129) from Rep. Burgess
  13. National Defense Authorization Act for Fiscal Year 2018 (H.R.2810) from Rep. Thornberry.

2016

 

2015


Jonathan Rupprecht

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

How to Get a Drone License Step-by-Step Guide So You Can Make Money

This page is a how-to guide on getting your drone license which has also been called all sorts of things such as a remote pilot certificate, commercial drone license, UAV certificate, drone permit, drone pilot license, etc. The correct term is a remote pilot certificate, but throughout this article, I will be referring to the remote pilot certificate and drone license interchangeably in this article.

This guide is based upon my knowledge as a current FAA certificated flight instructor (CFI & CFII) and aviation attorney. I suggest you take time and skim through the drone license table of contents below which lists many FAQs regarding the drone license. Also below are two step by step portions for brand new pilots trying to obtain their drone license and one for the current manned aircraft pilots seeking to obtain their drone license to fly their drones commercially.

Drone License Guide Table of Contents

Quick FAQ’s Surrounding the “Drone License”  

New Pilot Step-by-Step Guide to Obtain the Drone License

New Pilot Drone License FAQ  

The Drone License TSA Background Check Questions 

Current Manned Aircraft Pilots Step-by-Step Instructions to Obtain the Drone License

Current Pilot FAQ About the Drone License

FAQs From Those with Pending Section 333 Exemptions 

FAQs From Those Who Already Have Section 333 Exemptions  

Want to Continue Learning About Part 107?  

FAA Safety Notice: Tips for CFIs Processing Remote Pilot & Student Pilot Applications Notice Number: NOTC7141  

drone-license-guide-infographic

 

drone-pilot-license-part-107-checklist

Quick FAQ’s Surrounding the “Drone License”

1.Why do you use the term “drone 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?  Drone license or remote pilot certificate? A simple search on search volume shows that “drone license” is more than twice the volume of “remote pilot certificate.” I wrote the articles for first-time pilots, not existing pilots who know how to speak “aviationese.” I also wrote the article to rank high in Google so high-quality information could be found on the drone license not some thrown together article from a professional marketing person who has very little aviation experience.

2. Do I Need 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 (also known as a “drone license”) to operate your drone commercially. This drone license allows you to fly your drone for profit.

 

3. Does My Business Have to Obtain a Drone License to Use Drones?

No, only individuals can obtain the drone license. 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 possess a current drone license.

 

4. 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 the pilot 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.

 

5. What Happens If I Fly the Drone Commercially Without a Drone License?

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.

 

6. How Can I Obtain the Drone License?

You have two ways to obtain your drone license:

(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 for obtaining the drone license has different steps from the other. Keep reading below for super detailed step-by-step instructions for EACH of these methods.

 

commercial drone pilot license7. I’m Brand New. What are the Steps to Obtaining a the Drone License?

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.

 

8. Who Can Take the Part 107 Remote Pilot Exam?

To obtain your drone 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 an FAA-approved knowledge testing center

9. What if I Have a Manned Aircraft Pilot Certificate Already?

You still have to obtain the remote pilot certificate. If you have a current biannual flight review and a pilot certificate, other than a student pilot certificate, your instructions are located here.

 

New Pilot Step-by-Step Guide to Obtain the Drone License.


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 for the test. 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 once you obtain the drone license. 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:
    1. By filling out the paper-based version of FAA Form 8710-13 and mailing it off  OR  
    2. 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 drop-down 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 at 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 your 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 the 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.

New Pilot FAQ About the Drone License

1. 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.

 

2. 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.

 

3. 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.

 

4. 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.

 

5. When does Part 107 go into effect?

August 29, 2016.

 

6. Where can I take the 107 knowledge exam?

You take it at a knowledge exam testing center. A complete list is located here.

 

7. How can I Study for the Part 107 Knowledge Test to Get My Drone License?

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?

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

8. 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.

 


9. 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. Is this my drone license?

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.

 

10. 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.

 


11. I read some people on Facebook telling me about the law and the drone license……

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.

 

12. 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.”

 

The TSA Background Check for the Drone License Questions

 

1. I Made Some Mistakes in My Past. What Do the TSA and FAA Look For? What Disqualified me from Receiving a Drone License?

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.

 

2. I’m a new pilot, does TSA pre-check or global entry count? I want to get my drone license as quick as possible.

Don’t know.

 

3. I’m a  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.

 

4. 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.

 

5. I did a drone certification course with some company, does that count? Is that the same as a drone license?

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. Only the FAA can certify you.

 

6. 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.

FREE Drone Pilot License Study Guide!

  • 100 + pages.
  • 41 FAA practice questions with answers.
  • 24 exclusive sample questions.
  • 6 "cram" pages.
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Current Manned Aircraft Pilots Step-by-Step Instructions to Obtain the Drone License

You 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 bi-annual 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 Drone License:

  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 rationale 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.
  4. Do the remote pilot certificate application process below.

Drone 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 an FSDO, an FAA-designated pilot examiner (DPE), an airman certification representative (ACR), or an 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. If you are using a CFI to help you process your application, make sure you and they read FAA article below called Tips for CFIs Processing Remote Pilot & Student Pilot Applications. 
        • 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. 

Current Pilot FAQs Regarding the Drone 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.”

 

2. Do I Have to Get Another Medical Exam Before I fly Under My Drone License?

No, a remote pilot certificate does NOT require a medical certificate. However, section 107.17 says, “No person may manipulate the flight controls of a small unmanned aircraft system or act as a remote pilot in command, visual observer, or direct participant in the operation of the small unmanned aircraft if he or she knows or has reason to know that he or she has a physical or mental condition that would interfere with the safe operation of the small unmanned aircraft system.”

 

3. 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. This means you’ll receive your remote pilot certificate faster than a new pilot.

 

FAQs From 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.

 

FAQs From Those Who Already Have Section 333 Exemptions

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

Want to Continue Learning About Part 107?

FAA Safety Notice: Tips for CFIs Processing Remote Pilot & Student Pilot Applications
Notice Number: NOTC7141

“While tens of thousands of applications for these certificates have been successfully processed by recommending officials during the past year, a significant number of applications have had to be returned to CFIs for needed corrections. This delayed the issuance and delivery of the certificates and sadly resulted in having some of our applicants waiting for certificates longer than they and we would have liked. Points below emphasize what you as a CFI can do to keep the certification system working efficiently.

Be certain the applicant uses his or her legal name. Advise applicant to use the same legal name on his or her application for any knowledge test and all subsequent certificate applications. When there is a mismatch in names between an application and a knowledge test or a mismatch between a current and previous application, the current application is rejected. The applicant may have to visit a Flight Standards District Office (FSDO) in order to effect a name change.

IACRA allows an applicant to change his or her name in the user profile. If the applicant’s name is not his or her full legal name (limited to 50 characters), then you should tell the applicant to amend his or her name in the IACRA user profile and start a new application. It’s very important to get this right on the applicant’s first  application submitted—the student pilot or remote pilot application that is submitted to the FAA Airman Registry as a legal document. The address the applicant uses must be a residential address, and not a business address. If a business address is detected, the application will also be rejected for correction by the registry.

Don’t forget to send all paper applications to the local FSDO for review.  About a third of the rejected remote pilot certificate applications in the past year were paper applications that were mistakenly sent directly to AFS-760 by the recommending CFI. Remember to include the FAA Course Completion Certificate for an existing pilot’s remote pilot certificate application.

Consider that IACRA helps to ensure a complete and correct application and instantly submits the application to AFS-760. Although the Airmen Certification Branch, AFS-760, will accept a paper application using a paper FAA Form 8710-1 (for a student pilot certificate application) or FAA paper Form 8710-13 (for a remote pilot certificate and/or rating application), the chance of a return for correction is lower when IACRA is used by the CFI and the IACRA process is much faster.

Note that whenever the CFI acts as a recommending official, the applicant must be in the same room as the CFI during the application process. The CFI can’t accept an application for a student or remote pilot certificate through the mail, over the phone, by fax, or even by messenger service.  This ensures that there is proper vetting of the applicant’s ID and that the applicant is the rightful bearer of the documents presented. The IACRA process gives the CFI a checklist.  As part of the process the CFI logs off and the applicant must log on to the same console to complete the application process. So, never use anyone else’s user id and password for the system for the sake of convenience since it could lead to some serious issues down the road for those involved. Always check the applicant’s identity carefully and in person.

It’s also a great idea to include the applicant’s email and telephone number on an application in case contact for correction is necessary. As a CFI, you can write in your own phone number in the comment section of an application as a courtesy to FAA personnel who may need to contact you about the application. Otherwise, they will have to contact you by mail using your address on file.

For questions or to learn more please email [email protected]

 


Jonathan Rupprecht

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

Section 333 Exemption vs. Part 107 vs. Public COA vs. Blanket Public COA

section-333-exemption-vs-part-107-public-COA-toolbox.jpg

A common question I receive is “which certification, authorization, exemption, etc. is right for me? There are so many choices.” If this question accurately reflects where you are in life, you are in the right place.

 

There is much confusion on this issue because of the of the different terms, their locations in the law, and the reasons why the different methods of getting a drone airborne legally were created. You need to think of each of these different terms like it was a tool. Each tool was designed to fix certain problems at a certain point in time.

 

Hopefully, this article will bring to light the main differences between the different methods. Keep in mind that the different methods listed below are only SOME of the methods. I picked the most popular methods of getting airborne legally but there are other alternatives to the ones listed.

 

Please keep in mind that this article is designed to compare and contrast SOME of the major provisions and is NOT an exhaustive study on all the issues.  In other words, you should not rely on this article for legal advice because there are many issues in play. This is for educational purposes only.

 

Table of Contents

I. Graph Comparing Aircraft, Pilot, Airspace, and Operational Requirements

II. Part 107

III. Section 333 

IV. Airworthiness Certificates

V. Public COA

Example of a 333 Exemption

Example of a Blanket COA

Example of a Public “Blanket” COA (Version 1.0 ~ Mid-Late 2016)

Example of a Public “Blanket” COA (Version 1.2)

 

I. Graph Comparing Aircraft, Pilot, Airspace, and Operational Requirements

Please keep in mind these are the major points and not ALL of the points in contrast. If I put everything down, the table would get messy and hard to read.

 Aircraft RequirementsPilot RequirementsAirspace RequirementsTypes of Operations
Part 107Under 55lbs.Remote Pilot Certificate with SUAS RatingClass G, unless authorized or waivedDaylight, visual line of sight, 400ft AGL(unless within 400ft of a structure), not over people, etc.
Section 333As Required in the ExemptionPart 61 Certificate (Sport, Recreational, Private, Commercial, ATP, but not Student). Driver’s license or 3rd class medical.Within “Blanket” COA or Standards COA RequirementsAs defined by the exemption. Can be over 55lb+ or beyond visual line of sight.
Special Airworthiness Certificate (Experimental Category)Experimental Special Airworthiness Certificate.Part 61 Certificate (Sport, Recreational, Private, Commercial, ATP, but not Student).Within Standard COA RequirementsR&D, Showing Compliance with Regulations, Crew Training, Exhibition, Air Racing, Market Surveys. See Section 21.191.
Special Airworthiness Certificate (Restricted Category)Previously type certificated or manufactured & accepted by an Armed Force of the United States.Part 61 Certificate (Sport, Recreational, Private, Commercial, ATP, but not Student).Within Standard COA RequirementsAgriculture, forest and wildlife conservation, aerial surveying patrolling, weather control, aerial advertising,  or any other operation specified by the FAA. See Section 21.25.
Standard Airworthiness CertificateNo small unmanned aircraft has this certification
Public “Blanket” COA (Version 1.2)Under 55lbs.Self-CertifyClass G & at or below 400ft AGL. Beyond 5/3/2 airport distance requiresments.Section 40102(a)(41) & 40125(a)(2) and within public “blanket” COA limitations.
Public COASelf-CertifySelf-CertifySelf-Certify49 USC §§ 40102(a)(41);  40125
Part 101Under 55lbs unless certified through a community-based organization (CBO) safety program.CBO standardsNotification required to manager and tower if within 5 miles of an airport.Hobby or recreational only. Does not interfere and gives way to manned aircraft. Within CBO  safety guidelines. Cannot endanger safety of national airspace system.

 

 

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This graphic compares the four most popular methods of getting airborne. The  FAA has delegated some of the standard setting to the remote pilot in command (purple) or the FAA determined the standard by which the remote pilot must follow (grey).

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


II. Part 107

This part of the regulations went into effect on August 29, 2016. Prior to 107, we were operating predominately under a Section 333 exemptions.

 

For many, Part 107 is the best solution; however, there are particular operations which cannot be done under just Part 107 or a Part 107 waiver such as over 55-pound and heavier operations, crop dusting operations, beyond visual line of sight property transport or moving vehicle in a congested area property transport, etc.   If you are needing help with any of those, contact me.

 

For operations, that cannot be completed under Part 107, a Section 333 exemption could be a good alternative, but not always the best. The idea I want to to take away is that there are different tools for different problems. Some operators can have multiple tools in their toolbox to accomplish their missions depending on the particular facts. For example, a fire department could have 107 remote pilots, a section 333 exemption, and a public COA all at the same time. The problem at hand determines which tool you would pull out of the toolbox.

 

III. Section 333 Exemption

This basically is a legal Frankenstein created using the FAA’s authority given in Section 333 of the FAA Modernization and Reform Act of 2012, Part 11’s exemption process, and the Part 91 waiver process. The first exemptions came out in September 2014 and were the backbone of the commercial drone industry till Part 107 came out which had far less restrictive requirements. See an Example of a 333 Exemption

 

From September 2014 -November 2016, we saw multiple versions of the exemptions which morphed and changed over time. For example, the early exemptions had restrictions requiring the pilot to keep a 25% battery reserve, it then changed to 30%, and then a 5 minute reserve which goofed over the cinematographers who originally worked with the FAA to craft the 333 exemptions! Why did it hurt cinematographers? Because if their large heavy lift drones had a flight time of 15 minutes, under the original exemptions they would be required to keep a 25% battery reserve (3.75 minutes) while under the newer restrictions it is 5 minutes which results in a loss of available flight time.

 

In November 2016, the FAA unilaterally updated over 5,000 to all have the same set of restrictions. One wonders how that was not arbitrary and capricious.

 

The two most problematic restrictions for the 333 exemption operators were the 500ft “bubble” around the drone of which non-participating people and property must stay out of and the requirement to operate under a certificate of authorization.

 

Early on, the 333 exemptions did not come with COAs and people had to apply for them. The FAA quickly learned the error of that and created the “blanket” COA which was issued to all the 333 exemption holders upon approval. The FAA updated the “blanket” COA over time from 200ft AGL to 400ft AGL.  But here is the problem why the certificate of authorization was the second biggest problem, the “blanket” COA sis good for operations outside of 5 NM from a towered airport, 3NM from an airport with an instrument approach procedure, or 2NM from an airport, heliport, glider port, etc.  This made operations in cities or near them almost impossible because you would have to apply for a new COA, because the “blanket” COA would not work, and the wait 6 months +. The jobs would go to the illegal operators.

 

IV. Airworthiness Certificates

The FAA has been charged with maintaining the safety of the national airspace system and protecting people on the ground. One of the ways the FAA ensures safety is by certifying the aircraft to make sure it is airworthiness (it won’t fall out of the sky and kill people). This process which was originally designed for manned aircraft has been used for unmanned aircraft successfully.

 

There are two types of airworthiness certificates: (1) standard and (2) special.  To date, no small unmanned aircraft has obtained a standard airworthiness certificate, but I know some companies are in the process of trying to obtain them for their aircraft. There have been some special airworthiness certificates given out in the experimental and the restricted categories.

 

Obtaining an airworthiness certificate is time-consuming. A major reason it is rarely used today is an operator could just go the Section 333 exemption route or the Part 107 route which allow the pilot in command to determine the airworthiness of the aircraft. However, there are some instances where a special airworthiness certificate could be more beneficial than the 333 exemption or Part 107. It just depends on the facts of the intended operations. Different tools in the toolbox.

 

One point to mention is that an unmanned aircraft would not just need an airworthiness certificate but also a COA as well for the operations to be in compliance with the regulations.

 

V. Public COA

This method is only available for government agencies. The agency has to be fulfilling certain specific governmental functions under certain conditions for the operator to get the ability to self-certify their own pilot, aircraft, maintenance, and medical standards. The FAA is very strict on the missions and requirements because it does not want government agencies to run commercial types of missions or non-government missions under a public COA which is far less restrictive than other methods.

 

A government operator obtains a public COA by first sending the FAA a declaration letter outlining that the agency and its intended missions fall within the public aircraft statutes, the FAA reviews the declaration letter to determine if it is sufficient, the FAA gives the agency access to the COA portal to file a COA application, the government agency files the COA application, the FAA reviews the COA application and either approves, denies, or asks for more information.  The agency then operates under the public COA and the Federal Aviation Regulations.

 

When the 333 exemption method was getting into full swing,  public aircraft operators noticed that the Section 333 process seemed quicker and the “blanket” COAs that were being given out were for the entire United States, except for certain areas, while the public COAs were mission. aircraft, and location specific. This was a no brainer so government agencies started obtaining 333 exemptions because they were less restrictive than the public COAs.

 

Other government agencies were upset and wanted a similar deal to the 333 exemption’s blanket COA so the FAA created the “blanket” public COA which is basically a frankensteined version of a public COA, a section 333 exemption, and the blanket COA.

Agencies were happy for a while but caught on that the Section 333 exemptions were evolving to be less restrictive while the blanket public COA stayed the same. For example, the blanket public COA requires the pilot to have a private, commercial, or ATP certificate to operate near certain types of airports while the 333 exemptions required as little as a sport certificate. Additionally, when Part 107 came out, the public blanket COAs still said that the pilot had to have passed the private pilot knowledge exam to fly in most of Class G airspace while a government operator could have their pilots obtain a remote pilot certificate by passing a remote pilot knowledge exam which is easier than a private pilot knowledge exam!

 

This is why few government agencies today go for a public COA or public blanket COA; however, there are sometimes when a public COA is the best solution for the mission but that is fact specific. Different tools for different problems.

 

Conclusion

I outlined a brief summation of some of the major points above. There are all sorts of little contrasts between each of the different methods. If you are needing help with obtaining a tool to put in your toolbox (waiver, authorization, exemption, public COA, etc.), contact me. Paying for 30 minutes of my time can save you lots and lots of headache, time, and money. We can outline a game plan for your operations in  30 minutes so you can stop wasting time reading and focus on achieving your goals of operating a drone to save time, money, or lives.

Stop wasting time and contact me to schedule a phone call. :)

If you interested in learning more, I have put below an:

Example of a 333 Exemption

Example of a Blanket COA

Example of a Public “Blanket” COA (Version 1.0)

Example of a Public “Blanket” COA (Version 1.2)

 

Want to receive this entire article, including the graph above, in a PDF so you can read it later? Simply sign up for my drone newsletter and you’ll receive the link to download the PDF in your email.

 

 

Example of a 333 Exemption

Dear Section 333 Exemption Holder:
This letter is to inform you that we are amending your exemption that authorizes unmanned aircraft operations under Section 333.1 It explains the basis for our decision, describes its effect, and lists the revised Conditions and Limitations.
The Federal Aviation Administration (FAA) has determined that good cause exists for not publishing a summary of the petition in the Federal Register because this amendment to the exemption would not set a precedent, and any delay in acting on this petition would be detrimental to the petitioner. The unmanned aircraft authorized in the original grant are comparable in type, size, weight, speed, and operating capabilities to those in this petition.

 

Additionally, the FAA has finalized the first operational rules for routine commercial use of small unmanned aircraft systems (sUAS) (part 107, Operation and Certification of Small Unmanned Aircraft Systems). The new rule, which went into effect August 29, 2016, offers safety regulations for sUAS weighing less than 55 pounds that are conducting non-hobbyist operations. The vast majority of operations authorized under previously-issued exemptions under Section 333 have been addressed by part 107; now that part 107 is in effect, these operations do not necessitate an exemption. However, your Section 333 exemption remains valid until it expires. You may continue to fly following the Conditions and Limitations in your exemption and under the terms of a Certificate of Waiver or Authorization (COA). If your operation can be conducted under the requirements in part 107, you may elect to operate under part 107; however, if you wish to operate under part 107, you must obtain a remote pilot certificate and follow the operating rules of part 107. For more information, please visit: http://www.faa.gov/uas/.

 

The Basis for Our Decision
The FAA has previously issued a grant of exemption for relief from §§ 61.23(a) and (c), 61.101(e)(4) and (5), 61.113(a), 61.315(a), 91.7(a), 91.119(c), 91.121, 91.151(a)(1), 91.405(a), 91.407(a)(1), 91.409(a)(1) and (2), and 91.417(a) and (b) of Title 14, Code of Federal Regulations (14 CFR). That exemption allows the operators to operate UAS to perform aerial data collection or aerial data collection and closed-set filming and television production.
The FAA has revised the Conditions and Limitations issued in exemptions authorizing unmanned aircraft operations under Section 333 since the petitioner’s previous grant of exemption to those found in Exemption No. 15005 to Thomas R. Guilmette (see Docket No. FAA-2015-5829). Also in Exemption Nos. 13465A to Kansas State University (see Docket No. FAA-2014-1088), 11433A to Cape Productions (see Docket No. FAA-2015-0223), 11213 to Aeryon Labs, Inc. (see Docket No. FAA-2014-0642), 11062 to Astraeus Aerial (see Docket No. FAA−2014−0352), 11109 to Clayco, Inc. (see Docket No. FAA−2014−0507), 11112 to VDOS Global, LLC (see Docket No. FAA−2014−0382), the FAA found that the enhanced safety achieved using a sUAS with the specifications described by the petitioner and carrying no passengers or crew, rather than a manned aircraft of significantly greater proportions, carrying crew and flammable fuel, gives the FAA good cause to find that the UAS operation enabled by this exemption is in the public interest.

 

Our Decision
The FAA has modified the Conditions and Limitations to address aircraft, training, tethered operations, aircraft registration, and flight operations near persons, vessels, vehicles, and structures. Additionally, in previous exemptions, the FAA limited UAS operations to outside 5 nautical miles of an airport reference point (ARP) as denoted in the current FAA Airport/Facility Directory (AFD) or for airports not denoted with an ARP, the center of the airport symbol as denoted on the current FAA-published aeronautical chart unless a letter of agreement (LOA) with that airport’s management is obtained or otherwise permitted by a COA issued to the exemption holder. The FAA has removed that condition. In order to maintain safety in the vicinity of airports in Class B, C, or D airspace, the petitioner must apply to the Air Traffic Organization (ATO) for a new or amended COA. The FAA has determined that the justification for the issuance of Section 333 exemptions remains valid and is in the public interest. Therefore, under the authority contained in 49 U.S.C. 106(f), 40113, and 44701, delegated to me by the Administrator, the operator is granted an amendment to its exemption from 14 CFR §§ 61.23(a) and (c), 61.101(e)(4) and (5), 61.113(a), 61.315(a), 91.7(a), 91.119(c), 91.121, 91.151(a)(1), 91.405(a), 91.407(a)(1), 91.409(a)(1) and (2), and 91.417(a) and (b), to the extent necessary to allow the petitioner to conduct UAS operations. This exemption is subject to the Conditions and Limitations listed below.The list of affected docket numbers is included in Appendix A. The operator shall add this amendment to all previously-issued exemption(s). Without the original exemption and all subsequent amendments, this amendment is not valid.

 

Conditions and Limitations
The Conditions and Limitations within the previously-issued grant of exemptions have been superseded, and are amended as follows. Failure to comply with any of the Conditions and Limitations of this grant of exemption will be grounds for the immediate suspension or rescission of this exemption.

  1. 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.
  2.  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.
  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.
  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.
  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.
  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.
  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.
  8. 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.
  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.
  10. The operator is responsible for maintaining and inspecting the UAS to ensure that it is in a condition for safe operation.
  11. 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.
  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.
  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.
  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.
  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.
  17. 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.
  18. 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.
  19.  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.
  20. 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.
  21. 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 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.
  23. 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.
  25. 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 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.
  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.

29. 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 must be reported to the National Transportation Safety Board (NTSB) in accordance with its UAS accident reporting requirements. For 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, 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.

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. 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.

 

Example of a Blanket COA

A. General.

1. The approval of this COA is effective only with an approved Section 333 FAA Grant of Exemption.
2. A copy of the COA including the special limitations must be immediately available to all operational personnel at each operating location whenever UAS operations are being conducted.
3. This authorization may be canceled at any time by the Administrator, the person authorized to grant the authorization, or the representative designated to monitor a specific operation. As a general rule, this authorization may be canceled when it is no longer required, there is an abuse of its provisions, or when unforeseen safety factors develop. Failure to comply with the authorization is cause for cancellation. The operator will receive written notice of cancellation.

B. Safety of Flight.

1. The operator or pilot in command (PIC) is responsible for halting or canceling activity in the COA area if, at any time, the safety of persons or property on the ground or in the air is in jeopardy, or if there is a failure to comply with the terms or conditions of this authorization.

See-and-Avoid
Unmanned aircraft have no on-board pilot to perform see-and-avoid responsibilities; therefore, when operating outside of active restricted and warning areas approved for aviation activities, provisions must be made to ensure an equivalent level of safety exists for unmanned operations consistent with 14 CFR Part 91 §91.111, §91.113 and §91.115.
a. The pilot in command (PIC) is responsible:

-To remain clear and give way to all manned aviation operations and activities at all times,
-For the safety of persons or property on the surface with respect to the UAS, and
-For compliance with CFR Parts 91.111, 91.113 and 91.115

b. UAS pilots will ensure there is a safe operating distance between aviation activities and unmanned aircraft (UA) at all times.

c. Visual observers must be used at all times and maintain instantaneous communication with the PIC.

d. The PIC is responsible to ensure visual observer(s) are:

-Able to see the UA and the surrounding airspace throughout the entire flight, and
-Able to provide the PIC with the UA’s flight path, and proximity to all aviation activities and other hazards (e.g., terrain, weather, structures) sufficiently for the PIC to exercise effective control of the UA to prevent the UA from creating a collision hazard.

e. Visual observer(s) must be able to communicate clearly to the pilot any instructions required to remain clear of conflicting traffic.

2. Pilots are reminded to follow all federal regulations e.g. remain clear of all Temporary Flight Restrictions, as well as following the exemption granted for their operation.
3. The operator or delegated representative must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone,
except operations in the Washington DC Special Flight Rule Area may be approved only with prior coordination with the Security Operations Support Center (SOSC) at 202-267- 8276. Such areas are depicted on charts available at http://www.faa.gov/air_traffic/flight_info/aeronav/. Additionally, aircraft operators should beware of and avoid other areas identified in Notices to Airmen (NOTAMS) which restricts operations in proximity to Power Plants, Electric Substations, Dams, Wind Farms, Oil Refineries, Industrial Complexes, National Parks, The Disney Resorts, Stadiums, Emergency Services, the Washington DC Metro Flight Restricted Zone, Military or other Federal Facilities.
4. The unmanned aircraft will be registered prior to operations in accordance with Title 14 of the Code of Federal Regulations.

C. Reporting Requirements

1. Documentation of all operations associated with UAS activities is required regardless of the airspace in which the UAS operates. NOTE: Negative (zero flights) reports are required.
2. The operator must submit the following information through mailto:[email protected] on a monthly basis:

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

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

3. The number and duration of lost link events (control, performance and health monitoring, or communications) per UA per flight.
4. Incident/Accident/Mishap Reporting After an incident or accident that meets the criteria below, and within 24 hours of that incident, accident or event described below, the proponent must provide initial notification of the following to the FAA via email at  [email protected] and via the UAS COA On-Line forms (Incident/Accident).

1. All accidents/mishaps involving UAS operations where any of the following occurs:

a. Fatal injury, where the operation of a UAS results in a death occurring within 30 days of the accident/mishap
b. Serious injury, where the operation of a UAS results in: (1) hospitalization for more than 48 hours, commencing within 7 days from the date of the injury was received; (2) results in a fracture of any bone (except simple fractures of fingers, toes, or nose); (3) causes severe hemorrhages, nerve, muscle, or tendon damage; (4) involves any internal organ; or (5) involves second- or third-degree burns, orany burns affecting more than 5 percent of the body surface.
c. Total unmanned aircraft loss
d. Substantial damage to the unmanned aircraft system where there is damage to the airframe, power plant, or onboard systems that must be repaired prior to further flight
e. Damage to property, other than the unmanned aircraft.

2. Any incident/mishap that results in an unsafe/abnormal operation including but not limited to

a. A malfunction or failure of the unmanned aircraft’s on-board flight control system (including navigation)
b. A malfunction or failure of ground control station flight control hardware or software (other than loss of control link)
c. A power plant failure or malfunction
d. An in-flight fire
e. An aircraft collision involving another aircraft.
f. Any in-flight failure of the unmanned aircraft’s electrical system requiring use of alternate or emergency power to complete the flight
g. A deviation from any provision contained in the COA
h. A deviation from an ATC clearance and/or Letter(s) of Agreement/Procedures
i. A lost control link event resulting in

(1) Fly-away, or
(2) Execution of a pre-planned/unplanned lost link procedure.

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

D. Notice to Airmen (NOTAM). A distant (D) NOTAM must be issued when unmanned aircraft operations are being conducted. This requirement may be accomplished:

a. Through the operator’s local base operations or NOTAM issuing authority, or
b. By contacting the NOTAM Flight Service Station at 1-877-4-US-NTMS (1-877-487- 6867) not more than 72 hours in advance, but not less than 24 hours prior to the operation, unless otherwise authorized as a special provision. The issuing agency will require the:

(1) Name and address of the pilot filing the NOTAM request
(2) Location, altitude, or operating area
(3) Time and nature of the activity.
(4) Number of UAS flying in the operating area.

AIR TRAFFIC CONTROL SPECIAL PROVISIONS
A. Coordination Requirements.

1. Operators and UAS equipment must meet the requirements (communication, equipment and clearance) of the class of airspace they will operate in.
2. Operator filing and the issuance of required distance (D) NOTAM, will serve as advance ATC facility notification of UAS operations in an area.
3. The area of operation defined in the NOTAM must only be for the actual area to be flown for each day defined by a point and the minimum radius required to conduct the operation.
4. Operator must cancel NOTAMs when UAS operations are completed or will not be conducted.
5. Coordination and de-confliction between Military Training Routes (MTRs) is the operator’s responsibility. When identifying an operational area the operator must evaluate whether an MTR will be affected. In the event the UAS operational area overlaps an MTR, the operator will contact the scheduling agency 24 hours in advance to coordinate and de-conflict. Approval from the scheduling agency is not required. Scheduling agencies are listed in the Area Planning AP/1B Military Planning Routes North and South America, if unable to gain access to AP/1B contact the FAA at email address [email protected] with the IR/VR routes affected and the FAA will provide the scheduling agency information. If prior coordination and de-confliction does not take place 24 hours in advance, the operator must remain clear of all MTRs.

B. Communication Requirements. When operating in the vicinity of an airport without an operating control tower, announce your operations in accordance with the FAA Aeronautical Information Manual (AIM) 4-1- 9 Traffic Advisory Practices at Airports without Operating Control Towers.
C. Flight Planning Requirements.

Note: For all UAS requests not covered by the conditions listed below, the exemption holder may apply for a new Air Traffic Organization (ATO) Certificate of Waiver or
Authorization (COA) at https://oeaaa.faa.gov/oeaaa/external/uas/portal.jsp This COA will allow small UAS (55 pounds or less) operations during daytime VFR conditions under the following conditions and limitations:
(1) At or below 400 feet AGL; and
(2) Beyond the following distances from the airport reference point (ARP) of a public use airport, heliport, gliderport, or seaport listed in the Airport/Facility Directory, Alaska Supplement, or Pacific Chart Supplement of the U.S. Government Flight Information Publications.

a) 5 nautical miles (NM) from an airport having an operational control tower; or
b) 3 NM from an airport having a published instrument flight procedure, but not
having an operational control tower; or
c) 2 NM from an airport not having a published instrument flight procedure or an
operational control tower; or
d) 2 NM from a heliport

 

D. Emergency/Contingency Procedures.

1. Lost Link/Lost Communications Procedures:

a. If the UAS loses communications or loses its GPS signal, the UA must return to a pre-determined location within the private or controlled-access property and land.
b. The PIC must abort the flight in the event of unpredicted obstacles or emergencies.

2. Any incident, accident, or flight operation that transgresses the lateral or vertical boundaries defined in this COA must be reported to the FAA via email at [email protected] within 24 hours. Accidents must be
reported to the National Transportation Safety Board (NTSB) per instructions contained on the NTSB Web site: www.ntsb.gov

AUTHORIZATION
This Certificate of Waiver or Authorization does not, in itself, waive any Title 14 Code of Federal Regulations, nor any state law or local ordinance. Should the proposed operation conflict with any state law or local ordinance, or require permission of local authorities or property owners, it is the responsibility of the operator to resolve the matter. This COA does not authorize flight within Special Use airspace without approval from the scheduling agency. The operator is hereby authorized to operate the small Unmanned Aircraft System in the National Airspace System.

Example of a Public “Blanket” COA  (Version 1.0 ~ Mid-Late 2016)

I. STANDARD PROVISIONS

A. General.

The review of this activity is based upon current understanding of Unmanned Aircraft System (UAS) operations and their impact on the National Airspace System (NAS).This Certificate of Waiver or Authorization (COA) will not be considered a precedent for future operations. As changes in, or understanding of, UAS operations occur, the associated limitations and conditions may be adjusted.

All personnel engaged in the operation of the UAS in accordance with this authorization must read and comply with the conditions, limitations, and provisions of this COA.

A copy of the COA including the special limitations must be immediately available to all operational personnel at each operating location whenever UAS operations are being conducted.

This COA may be canceled at any time by the Administrator, a person authorized to grant the authorization, or a representative designated to monitor a specific operation. As a general rule, this authorization may be canceled when it is no longer required, when there is an abuse of its provisions, or when unforeseen safety factors develop. Failure to comply with the authorization is cause for cancellation. All cancellations will be provided in writing to the proponent.

During the time this COA is approved and active, a site safety evaluation/visit may be accomplished to ensure COA compliance, assess any adverse impact on ATC or airspace, and ensure this COA is not burdensome or ineffective. Deviations, accidents/incidents/mishaps, complaints, etc. will prompt a COA review or site visit to address the issue. Refusal to allow a site safety evaluation/visit may result in cancellation of the COA. Note: This section does not pertain to agencies that have other existing agreements in place with the FAA.

Public Aircraft Operations are defined by statutes Title 49 USC §40102(a)(41) and §40125. All public aircraft operations conducted under a COA must comply with the terms of the statutes.

 

B. Airworthiness Certification.

The unmanned aircraft must be shown to be airworthy to conduct flight operations in the NAS. The proponent has made its own determination that the unmanned aircraft is airworthy. The unmanned aircraft must be operated in strict compliance with all provisions and conditions contained in the Airworthiness Safety Release (AWR), including all documents and provisions referenced in the COA application.

1. A configuration control program must be in place for hardware and/or software changes made to the UAS to ensure continued airworthiness. If a new or revised Airworthiness Release is generated as a result of changes in the hardware or software affecting the operating characteristics of the UAS, notify the UAS Integration Office via email at 9- AJV-115-UASOrga[email protected] of the changes as soon as practical.

a. Software and hardware changes should be documented as part of the normal maintenance procedures. Software changes to the aircraft and control station as well as hardware system changes are classified as major changes unless the agency has a formal process accepted by the FAA. These changes should be provided to the UAS Integration Office in summary form at the time of incorporation.

b. Major modifications or changes, performed under the COA, or other authorizations that could potentially affect the safe operation of the system, must be documented and provided to the FAA in the form of a new AWR, unless the agency has a formal process, accepted by the FAA.

c. All previously flight proven systems, to include payloads, may be installed or removed as required and that activity must be recorded in the unmanned aircraft and ground control stations logbooks by persons authorized to conduct UAS maintenance. Describe any payload equipment configurations in the UAS logbook that will result in a weight and balance change, electrical loads, and or flight dynamics, unless the agency has a formal process, accepted by the FAA.

d. For unmanned aircraft system discrepancies, a record entry should be made by an appropriately rated person to document the finding in the logbook. No flights may be conducted following major changes, modifications or new installations unless the party responsible for certifying airworthiness has determined the system is safe to operate in the NAS and a new AWR is generated, unless the agency has a formal process, accepted by the FAA. The successful completion of these major changes, modifications or new installations must be recorded in the appropriate logbook, unless the agency has a formal process, accepted by the FAA.

2. The unmanned aircraft must be operated in strict compliance with all provisions and conditions contained within the spectrum analysis assigned and authorized for use within the defined operations area.

3. All items contained in the application for equipment frequency allocation must be adhered to, including the assigned frequencies and antenna equipment characteristics. A ground operational check to verify that the control station can communicate with the aircraft (frequency integration check) must be conducted prior to the launch of the unmanned aircraft to ensure any electromagnetic interference does not adversely affect control of the aircraft.

 

C. Safety of Flight.

1. The Proponent or delegated representative is responsible for halting or canceling activity conducted under the provisions of this COA if, at any time, the safety of persons or property on the ground or in the air is in jeopardy, or if there is a failure to comply with the terms or conditions of this authorization.

2. Sterile Cockpit Procedures.

a. No crewmember may perform any duties during a critical phase of flight not required for the safe operation of the aircraft.

b. Critical phases of flight include all ground operations involving:

1) Taxi (movement of an aircraft under its own power on the surface of an airport),

2) Take-off and landing (launch or recovery), and

3) All other flight operations in which safety or mission accomplishment might be compromised by distractions.

c. No crewmember may engage in, nor may any pilot in command (PIC) permit, any activity during a critical phase of flight which could:

1) Distract any crewmember from the performance of his/her duties, or

2) Interfere in any way with the proper conduct of those duties.

d. The pilot and/or the PIC must not engage in any activity not directly related to the operation of the aircraft. Activities include, but are not limited to: operating UAS sensors or other payload systems.

e. The use of cell phones or other electronic devices is restricted to communications pertinent to the operational control of the unmanned aircraft and any required communications with Air Traffic Control.

3. See-and-Avoid.

a. Unmanned aircraft have no on-board pilot to perform see-and-avoid responsibilities; therefore, when operating outside of active restricted and warning areas approved for aviation activities, provisions must be made to ensure that an equivalent level of safety exists for unmanned operations. Adherence to 14 CFR Part 91 §91.111, §91.113 and §91.115, is required.

1) The PIC is responsible: To remain clear and give way to all manned aviation operations and activities at all times, For the safety of persons or property on the surface with respect to the UAS operation, For ensuring that there is a safe operating distance between aviation activities and unmanned aircraft (UA) at all times, and For operating in compliance with CFR Parts 91.111, 91.113 and 91.115

b. The PIC is responsible to ensure that any visual observer (VO):

1) Can perform their required duties,

2) Are able to see the UA and the surrounding airspace throughout the entire flight, and 3) Are able to provide the PIC with the UA’s flight path and proximity to all aviation activities and other hazards (e.g., terrain, weather, structures) sufficiently for the PIC to exercise effective control of the UA to prevent the UA from creating a collision hazard.

c. VO(s) must be used at all times and must maintain instantaneous communication with the PIC. Electronic messaging or texting is not permitted during flight operations. d. The use of multiple successive VO(s) (daisy chaining) is prohibited.

e. VO(s) must be able to communicate clearly to the PIC any instructions required to remain clear of conflicting traffic.

f. All VO(s) must complete sufficient training to communicate to the PIC any information required to remain clear of conflicting traffic, terrain, and obstructions, maintain proper cloud clearances, and provide navigational awareness. This training, at a minimum, must include knowledge of:

1) Their responsibility to assist PICs in complying with the requirements of:  Section 91.111, Operating Near Other Aircraft,  Section 91.113, Right-of-Way Rules: Except Water Operations,  Section 91.115, Right-of-Way Rules: Water Operations,  Section 91.119, Minimum Safe Altitudes: General, and  Section 91.155, Basic VFR Weather Minimums

2) Air traffic and radio communications, including the use of approved air traffic control/pilot phraseology

3) Appropriate sections of the Aeronautical Information Manual (AIM)

g. The Proponent must not operate in Restricted Areas, Prohibited Areas, Special Flight Rule Areas or the Washington DC Flight Restricted Zone. Such areas are depicted on charts available at http://www.faa.gov/air_traffic/flight_info/aeronav/. Additionally, aircraft operators should beware of and avoid other areas identified in Notices to Airmen (NOTAMS) that restrict operations in proximity to Power Plants, Electric Substations, Dams, Wind Farms, Oil Refineries, Industrial Complexes, National Parks, The Disney Resorts, Stadiums, Emergency Services, Military or other Federal Facilities unless approval is received from the appropriate authority prior to the UAS Mission. h. The unmanned aircraft will be registered prior to operations in accordance with Title 14 of the Code of Federal Regulations.

 

D. Reporting Requirements

1. Documentation of all operations associated with UAS activities is required regardless of the airspace in which the UAS operates. NOTE: Negative (zero flights) reports are required.

2. The Proponent must submit the following information on a monthly basis to [email protected] :

a. Name of Proponent, and aircraft registration number,

b. UAS type and model,

c. All operating locations, to include city name and latitude/longitude,

d. Number of flights (per location, per aircraft),

e. Total aircraft operation hours,

f. Takeoff or landing damage, and

g. Equipment malfunction. Required reports include, but are not limited to, failures or malfunctions to the:

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

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

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

a. All accidents/mishaps involving UAS operations where any of the following occurs:

1) Fatal injury, where the operation of a UAS results in a death occurring within 30 days of the accident/mishap

2) Serious injury, where the operation of a UAS results in:  Hospitalization for more than 48 hours, commencing within 7 days from the date of the injury was received;  A fracture of any bone (except simple fractures of fingers, toes, or nose);  Severe hemorrhages, nerve, muscle, or tendon damage;   Involving any internal organ; or  Involves second- or third-degree burns, or any burns affecting more than 5 percent of the body surface.

3) Total unmanned aircraft loss

4) Substantial damage to the unmanned aircraft system where there is damage to the airframe, power plant, or onboard systems that must be repaired prior to further flight

5) Damage to property, other than the unmanned aircraft.

b. Any incident/mishap that results in an unsafe/abnormal operation including but not limited to

1) A malfunction or failure of the unmanned aircraft’s on-board flight control system (including navigation)

2) A malfunction or failure of ground control station flight control hardware or software (other than loss of control link)

3) A power plant failure or malfunction

4) An in-flight fire

5) An aircraft collision involving another aircraft.

6) Any in-flight failure of the unmanned aircraft’s electrical system requiring use of alternate or emergency power to complete the flight

7) A deviation from any provision contained in the COA

8) A deviation from an ATC clearance and/or Letter(s) of Agreement/Procedures

9) A lost control link event resulting in Fly-away, or Execution of a pre-planned/unplanned lost link procedure. c. Initial reports must contain the information identified in the COA On-Line Accident/Incident Report.

d. Follow-on reports describing the accident/incident/mishap(s) must be submitted by providing copies of proponent aviation accident/incident reports upon completion of safety investigations.

e. Civil operators and Public-use agencies (other than those which are part of the Department of Defense) are advised that the above procedures are not a substitute for separate accident/incident reporting required by the National Transportation Safety Board under 49 CFR Part 830 §830.5.

f. For other than Department of Defense operations, this COA is issued with the provision that the FAA be permitted involvement in the proponent’s incident/accident/mishap investigation as prescribed by FAA Order 8020.11, Aircraft Accident and Incident Notification, Investigation, and Reporting.

E. Notice to Airmen (NOTAM).

1. A distant (D) NOTAM must be issued prior to conducting UAS operations. This requirement may be accomplished:

a. Through the proponent’s local base operations or NOTAM issuing authority, or

b. By contacting the NOTAM Flight Service Station at 1-877-4-US-NTMS (1- 877-487- 6867) not more than 72 hours in advance, but not less than 24 hours for UAS operations prior to the operation. The issuing agency will require the:

1) Name and address of the pilot filing the NOTAM request

2) Location, altitude and operating area

3) Time and nature of the activity. Note: The NOTAM must identify actual coordinates and a Radial/DME fix of a prominent navigational aid, with a radius no larger than that where visual line of sight with the UA can be maintained. The NOTAM must be filed to indicate the defined operations area and periods of UA activity. NOTAMs for generalized, wide-area, or continuous periods are not acceptable.

II. FLIGHT STANDARDS SPECIAL PROVISIONS Failure to comply with any of the conditions and limitations of this COA will be grounds for the immediate suspension or cancellation of this COA.

1. Operations authorized by this COA are limited to UAS weighing less than 55 pounds, including payload. Proposed operations of any UAS weighing more than 55 pounds will require the Proponent to provide the FAA with a new airworthiness Certificate (if necessary), Registration N-Number, Aircraft Description, Control Station, Communication System Description, Picture of UAS and any Certified TSO components. Approval to operate the new UAS is contingent on acknowledgement from FAA of receipt of acceptable documentation.

2. External Load Operations, dropping or spraying aircraft stores, or carrying hazardous materials (including munitions) is prohibited.

3. The UA may not be operated at a speed exceeding 87 knots (100 miles per hour). The COA 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 operating airspeed recommended by the aircraft manufacturer.

4. The Proponent should conduct and document initial training at a specific training site that will allow for the conduct of scenario-based training exercises. This training should foster a high level of flight proficiency and promote efficient, standardized coordination among pilots, visual observers, and ground crew members. To ensure safety and compliance, the training site should be is well clear of housing areas, roads, nonparticipating persons, and watercraft. When the Proponent has determined that sufficient training scenarios have been completed to achieve an acceptable level of competency, the Proponent is authorized to conduct UAS public aircraft operations in accordance with Title 49 USC §§ Part 40125 at any location within the National Airspace System under the provisions of this COA.

5. The UA must be operated within visual line of sight (VLOS) of the Pilot in Command (PIC) and or the visual observer (VO) at all times. This requires the PIC and VO to be able to use human vision unaided by any device other than corrective lenses, as specified on their FAA-issued airman medical certificate or equivalent medical certification as determined by the government entity conducting the PAO. The VO may be used to satisfy the VLOS requirement as long as the PIC always maintains VLOS capability.

6. This COA and all documents needed to operate the UAS and conduct operations in accordance with the conditions and limitations stated in this COA are hereinafter referred to as the operating documents. The Proponent must follow the procedures as outlined in the operating documents. If a discrepancy exists within the operating documents, the procedures outlined in the approved COA take precedence and must be followed. The Proponent may update or revise the operating documents, excluding the approved COA, as needed. It is the Proponent’s responsibility to track such revisions and present updated and revised operating documents to the Administrator or any law enforcement official upon request. The Proponent must also present updated and revised documents if they petition for extension or amendment to this COA. If the Proponent determines that any update or revision would affect the basis upon which the FAA granted this COA, then the Proponent must petition for an amendment to this COA. The FAA’s UAS Integration Office (AFS−80) may be contacted if questions arise regarding updates or revisions to the operating documents.

7. The operating documents must be accessible during UAS operations and made available to the Administrator and/or law enforcement upon request.

8. 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 COA. 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. The Proponent is responsible for maintaining and inspecting the UAS to ensure that it is in a condition for safe operation.

10. 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.

11. The Proponent must follow the UAS manufacturer’s maintenance; overhaul, replacement, inspection, and life limit requirements for the aircraft and aircraft components.

12. Each UAS operated under this COA must comply with all manufacturer safety bulletins.

13. Government entities conducting public aircraft operations (PAO) involve operations for the purpose of fulfilling a government function that meet certain conditions specified under Title 49 United States Code, Section 40102(a)(41) & 40125(a)(2). PAO is limited by the statute to certain government operations within U.S. airspace. These operations must comply with general operating rules including those applicable to all aircraft in the National Airspace System. Government entities may exercise their own internal processes regarding aircraft certification, airworthiness, pilot, aircrew, and maintenance personnel certification and training. If the government entity does not have an internal process for PIC certification, an acceptable equivalent is that PIC shall hold

a. Either an airline transport, commercial or private pilot certificate if UAS operations are within 5 nautical miles (NM) from an airport having an operational control tower, an airport having a published instrument flight procedure, but not having an operational control tower, or 2 NM from an airport not having a published instrument flight procedure or an operational control tower, or 2 NM from a heliport. The PIC must also meet the flight review requirements specified in 14 CFR § Part 61.56 in an aircraft in which the PIC is rated on his or her pilot certificate.

b. For UAS operations outside of these locations the government entity may utilize a ground based training course and successful completion of a FAA written examination at the private pilot level or higher (or an FAA-recognized equivalent). The PIC must also hold a current 2nd Class FAA airman medical certificate or equivalent medical certification as determined by the government entity conducting the PAO.

14. The Proponent may not permit any PIC to operate unless the PIC demonstrates the ability to safely operate the UAS in a manner consistent with how the UAS will be operated under this COA, including evasive and emergency maneuvers and maintaining appropriate distances from persons, vessels, vehicles and structures. PIC qualification flight hours and currency must be logged in a manner consistent with 14 CFR § Part 61.51(b). Flights for the purposes of training the Proponent’s PICs and VOs (training, proficiency, and experience-building) and determining the PIC’s ability to safely operate the UAS in a manner consistent with how the UAS will be operated under this COA are permitted under the terms of this COA. However, training operations may only be conducted during dedicated training sessions. During training, proficiency, and experience-building flights, all persons not essential for flight operations are considered nonparticipants, and the PIC must operate the UA with appropriate distance from nonparticipants in accordance with 14 CFR § Part 91.119.

15. Pilots are reminded to follow all federal regulations (e.g. remain clear of all Temporary Flight Restrictions). Additionally, operations over areas administered by the National Park Service, U.S. Fish and Wildlife Service, or U.S. Forest Service must be conducted in accordance with Department of Interior/US Fish & Wildlife Service requirements. (See 50 CFR §§ Part 27.34 and FAA Aeronautical Information Manual Section 4, paragraph 7-4-6.)

16. The presence of observers during flight operations, other than initial or recurrent pilot in-command and visual observer training is authorized given compliance with the following provisions:

a. Observers will receive a safety briefing that addresses the mission intent, safety barriers, non-interference with UAS mission personnel, and emergency procedures in the event of an incident or accident.

b. Observers will be directed to, and contained within, a specific observation point that minimized the risk of injury and ensures that they do not interfere with the UAS mission.

c. Observers must have a valid Federal Aviation Administration (FAA) second-class medical certificate issued under 14 CFR part 67; an FAA-recognized equivalent is an acceptable means of demonstrating compliance with this requirement.

d. Proponent will ensure that observers do not engage in conversations, discussions, or interviews that distract any crewmember or mission personnel from the performance of his/her duties or interfere in any way with the proper conduct of those duties.

e. Proponent will limit the number of observers to that which can be adequately monitored and protected by personnel and resources onsite.

f. Operation will be conducted in compliance with ALL of the existing provisions, conditions and mitigations of this COA.

17. UAS operations may only be conducted during the daytime and may not be conducted during night, as defined in 14 CFR § Part 1.1. All operations must be conducted under visual meteorological conditions (VMC). Flights under special visual flight rules (SVFR) are not authorized.

18. 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.

19. If the UAS loses communications or loses its GPS signal, the UA must return to a predetermined location within the defined operating area.

20. The PIC must abort the flight in the event of emergencies or flight conditions that could be a risk to persons and property within the operating area.

21. 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 than five minutes.

22. Documents used by the Proponent to ensure the safe operation of the UAS and any documents required under 14 CFR § Part 91.9 and Part 91.203 must be available to the PIC at the UAS Ground Control Station any time the aircraft is operating. These documents must be made available to the Administrator or any law enforcement official upon request.

23. The UA must remain clear and give way to all manned aviation operations and activities at all times.

24. The UAS may not be operated by the PIC from any moving vehicle unless the government entity conducting PAO has determined that such operations can be conducted without causing undue hazard to persons or property and has presented such safety procedures to the FAA. Safety procedures include, but not limited to, emergency procedures, lost link procedures, and consideration of terrain and obstructions that may restrict the ability to maintain visual line of sight. Operations must also comply with all applicable federal, state and local laws pertaining to operations from a moving vehicle.

25. All flight operations must be conducted at least 500 feet from all nonparticipating persons, vessels, vehicles, and structures.

III. AIR TRAFFIC CONTROL SPECIAL PROVISIONS

A. Coordination Requirements.

1. Compliance with Standard Provisions, E. Notice to Airmen (NOTAM) satisfies the coordination requirement. Operator must cancel NOTAMs when UAS operations are completed or will not be conducted.

2. Coordination and de-confliction between Military Training Routes (MTRs) is the Proponent’s responsibility. When identifying an operational area, the Proponent must evaluate whether an MTR will be affected. In the event the UAS operational area overlaps (5 miles either side of centerline) an MTR, the operator will contact the scheduling agency in advance to coordinate and de-conflict. Approval from the scheduling agency is not required.

B. Communication Requirements. When operating in the vicinity of an airport without an operating control tower the PIC will announce operations on appropriate Unicom/CTAF frequencies alerting manned pilots of UAS operations.

C. Flight Planning Requirements. This COA will allow small UAS (55 pounds or less) operations during daytime VMC conditions only within Class G airspace under the following limitations:

1. At or below 400 feet AGL, and

2. Beyond the following distances from the airport reference point (ARP) of a public use airport, heliport, gliderport, or water landing port listed in the Airport/Facility Directory, Alaska Supplement, or Pacific Chart Supplement of the U.S. Government Flight Information Publications:

a. 5 nautical miles (NM) from an airport having an operational control tower, or

b. 3 NM from an airport having a published instrument flight procedure, but not having an operational control tower, or

c. 2 NM from an airport not having a published instrument flight procedure or an operational control tower, or

d. 2 NM from a heliport.

3. The PIC is responsible for identifying the appropriate ATC jurisdiction nearest to the area of operations defined by the NOTAM.

D. Procedural Requirements. This COA authorizes the Proponent to conduct UAS flight operations strictly within a “defined operating area” as identified under the required provision of Section E. Notice to Airmen (NOTAM) of this COA.

1. A “defined operating area” is described as a location identified by a Very High Frequency Omnidirectional Range (VOR) Radial/Distance Measuring Equipment (DME) fix. This location must have a defined perimeter that is no larger than that where visual line of sight with the UA can be maintained and a defined operational ceiling at or below 400’ Above the Ground (AGL).

2. UAS operations must remain within this “defined operating area”. The Proponent will discover and manage all risks and associated liabilities that exist within the defined operating area and all risks must be legitimately mitigated to assure the safety of people and property.

3. The UAS must remain within visual line of sight of the PIC and/or VO(s) at all times. The PIC and VO(s) must be positioned such that they can maintain sufficient visual contact with the UA in order to determine its attitude, altitude, and direction of flight. The PIC is responsible to ensure that the UA remains within the defined operating area. “Out of Sight”, or “Behind the Obstruction” flight operations are prohibited.

E. Emergency/Contingency Procedures.

1. Lost Link Procedures:

a. In the event of lost link, the UA must initiate a flight maneuver that ensures timely landing of the aircraft. Lost link airborne operations shall be predictable and the UA shall remain within the defined operating area filed in the NOTAM for that specific operation. In the event that the UA leaves the defined operating area, and the flight track of the UA could potentially enter controlled airspace, the PIC will immediately contact the appropriate ATC facility having jurisdiction over the controlled airspace to advise them of the UASs last known altitude, speed, direction of flight and estimated flight time remaining and the Proponent’s action to recover the UA.

b. Lost link orbit points will not coincide with the centerline of published Victor airways.

c. The UA lost link flight track will not transit or orbit over populated areas.

d. Lost link programmed procedures must de-conflict from all other unmanned operations within the operating area.

2. Lost Visual Line of Sight: If an observer loses sight of the UA, they must notify the PIC immediately. If the UA is visually reacquired promptly, the mission may continue. If not, the PIC will immediately execute the lost link procedures.

 3. Lost Communications: If communication is lost between the PIC and the observer(s), the PIC must immediately execute the lost link procedures.

IV. AUTHORIZATION This Certificate of Waiver or Authorization does not, in itself, waive any Title 14 Code of Federal Regulations, nor any state law or local ordinance. Should the proposed operation conflict with any state law or local ordinance, or require permission of local authorities or property owners, it is the responsibility of the University of Kentucky to resolve the matter. This COA does not authorize flight within in Restricted Areas, Prohibited Areas, Special Flight Rule Areas or the Washington DC Federal Restricted Zone (FRZ) without pre-approval. The University of Kentucky is hereby authorized to operate the Unmanned Aircraft System in the National Airspace System.

 

Public “Blanket” COA (Version 1.2)

STANDARD PROVISIONS
A. General.
The review of this activity is based upon current understanding of Unmanned Aircraft
System (UAS) operations and their impact on the National Airspace System (NAS).This
Certificate of Waiver or Authorization (COA) will not be considered a precedent for future
operations. As changes in, or understanding of, UAS operations occur, the associated
limitations and conditions may be adjusted.
All personnel engaged in the operation of the UAS in accordance with this authorization
must read and comply with the conditions, limitations, and provisions of this COA.
A copy of the COA including the special limitations must be immediately available to all
operational personnel at each operating location whenever UAS operations are being
conducted.
This COA may be canceled at any time by the Administrator, a person authorized to grant
the authorization, or a representative designated to monitor a specific operation. As a
general rule, this authorization may be canceled when it is no longer required, when there is
an abuse of its provisions, or when unforeseen safety factors develop. Failure to comply
with the authorization is cause for cancellation. All cancellations will be provided in writing
to the proponent.
During the time this COA is approved and active, a site safety evaluation/visit may be
accomplished to ensure COA compliance, assess any adverse impact on ATC or airspace,
and ensure this COA is not burdensome or ineffective. Deviations,
accidents/incidents/mishaps, complaints, etc. will prompt a COA review or site visit to
address the issue. Refusal to allow a site safety evaluation/visit may result in cancellation of
the COA. Note: This section does not pertain to agencies that have other existing
agreements in place with the FAA.
Public Aircraft Operations are defined by statutes 49 USC §40102(a)(41) and §40125.All
public aircraft operations conducted under a COA must comply with the terms of the
statutes.
B. Airworthiness Certification.
The unmanned aircraft must be shown to be airworthy to conduct flight operations in the
NAS. The proponent has made its own determination that the unmanned aircraft is
airworthy. The unmanned aircraft must be operated in strict compliance with all provisions
and conditions contained in the Airworthiness Safety Release (AWR), including all
documents and provisions referenced in the COA application.
1. A configuration control program must be in place for hardware and/or software changes
made to the UAS to ensure continued airworthiness. If a new or revised Airworthiness
Release is generated as a result of changes in the hardware or software affecting the
operating characteristics of the UAS, notify the UAS Integration Office via email at 9-
[email protected] of the changes as soon as practical.
a. Software and hardware changes should be documented as part of the normal
maintenance procedures. Software changes to the aircraft and control station as well
as hardware system changes are classified as major changes unless the agency has a
formal process accepted by the FAA. These changes should be provided to the UAS
Integration Office in summary form at the time of incorporation.
b. Major modifications or changes, performed under the COA, or other authorizations
that could potentially affect the safe operation of the system, must be documented
and provided to the FAA in the form of a new AWR, unless the agency has a formal
process, accepted by the FAA.
c. All previously flight proven systems, to include payloads, may be installed or
removed as required and that activity must be recorded in the unmanned aircraft and
ground control stations logbooks by persons authorized to conduct UAS
maintenance. Describe any payload equipment configurations in the UAS logbook
that will result in a weight and balance change, electrical loads, and or flight
dynamics, unless the agency has a formal process, accepted by the FAA.
d. For unmanned aircraft system discrepancies, a record entry should be made by an
appropriately rated person to document the finding in the logbook. No flights may
be conducted following major changes, modifications or new installations unless the
party responsible for certifying airworthiness has determined the system is safe to
operate in the NAS and a new AWR is generated, unless the agency has a formal
process, accepted by the FAA. The successful completion of these major changes,
modifications or new installations must be recorded in the appropriate logbook,
unless the agency has a formal process, accepted by the FAA.
2. The unmanned aircraft must be operated in strict compliance with all provisions and
conditions contained within the spectrum analysis assigned and authorized for use
within the defined operations area.
3. All items contained in the application for equipment frequency allocation must be
adhered to, including the assigned frequencies and antenna equipment characteristics. A
ground operational check to verify that the control station can communicate with the
aircraft (frequency integration check) must be conducted prior to the launch of the
unmanned aircraft to ensure any electromagnetic interference does not adversely affect
control of the aircraft
C. Safety of Flight.
1. The proponent or delegated representative is responsible for halting or canceling
activity conducted under the provisions of this COA if, at any time, the safety of
persons or property on the ground or in the air is in jeopardy, or if there is a failure to
comply with the terms or conditions of this authorization.
2. Sterile Cockpit Procedures.
a. No crewmember may perform any duties during a critical phase of flight not
required for the safe operation of the aircraft.
b. Critical phases of flight include all ground operations involving:
1) Taxi (movement of an aircraft under its own power on the surface of an airport),
2) Take-off and landing (launch or recovery), and
3) All other flight operations in which safety or mission accomplishment might be
compromised by distractions.
c. No crewmember may engage in, nor may any pilot in command (PIC) permit, any
activity during a critical phase of flight which could:
1) Distract any crewmember from the performance of his/her duties, or
2) Interfere in any way with the proper conduct of those duties.
d. The pilot and/or the PIC must not engage in any activity not directly related to the
operation of the aircraft. Activities include, but are not limited to: operating UAS
sensors or other payload systems.
e. The use of cell phones or other electronic devices is restricted to communications
pertinent to the operational control of the unmanned aircraft and any required
communications with Air Traffic Control.
3. See-and-Avoid.
a. Unmanned aircraft have no on-board pilot to perform see-and-avoid responsibilities;
therefore, when operating outside of active restricted and warning areas approved
for aviation activities, provisions must be made to ensure that an equivalent level of
safety exists for unmanned operations. Adherence to 14 CFR Part 91 §91.111,
§91.113 and §91.115, is required.
1) The PIC is responsible:
(a) To remain clear and give way to all manned aviation operations and
activities at all times,
(b) For the safety of persons or property on the surface with respect to the
UAS operation,
(c) For ensuring that there is a safe operating distance between aviation
activities and unmanned aircraft (UA) at all times, and
(d) For operating in compliance with CFR Parts 91.111, 91.113 and 91.115
2) The PIC is responsible to ensure that any visual observer (VO):
(a) Can perform their required duties,
(b) Are able to see the UA and the surrounding airspace throughout the entire
flight, and
(b) Are able to provide the PIC with the UA’s flight path and proximity to
all aviation activities and other hazards (e.g., terrain, weather,
structures) sufficiently for the PIC to exercise effective control of the
UA to prevent the UA from creating a collision hazard.
3) VO(s) must be used at all times and must maintain instantaneous communication
with the PIC. Electronic messaging or texting is not permitted during flight
operations.
4) The use of multiple successive VO(s) (daisy chaining) is prohibited.
5) VO(s) must be able to communicate clearly to the PIC any instructions required
to remain clear of conflicting traffic.
6) All VO(s) must complete sufficient training to communicate to the PIC any
information required to remain clear of conflicting traffic, terrain, and
obstructions, maintain proper cloud clearances, and provide navigational
awareness. This training, at a minimum, must include knowledge of:
(a) Their responsibility to assist PICs in complying with the requirements of:
· Section 91.111, Operating Near Other Aircraft,
· Section 91.113, Right-of-Way Rules: Except Water Operations,
· Section 91.115, Right-of-Way Rules: Water Operations,
· Section 91.119, Minimum Safe Altitudes: General, and
· Section 91.155, Basic VFR Weather Minimums
(b) Air traffic and radio communications, including the use of approved air
traffic control (ATC)/pilot phraseology
(c) Appropriate sections of the Aeronautical Information Manual (AIM)
b. The proponent must not operate in Restricted Areas, Prohibited Areas, Special
Flight Rule Areas or the Washington DC Flight Restricted Zone. Such areas are
depicted on charts available at http://www.faa.gov/air_traffic/flight_info/aeronav/.
Additionally, aircraft operators should beware of and avoid other areas identified in

Notices to Airmen (NOTAMS) that restrict operations in proximity to Power Plants,
Electric Substations, Dams, Wind Farms, Oil Refineries, Industrial Complexes,
National Parks, The Disney Resorts, Stadiums, Emergency Services, Military or
other Federal Facilities unless approval is received from the appropriate authority
prior to the UAS Mission.
c. The unmanned aircraft will be registered prior to operations in accordance with Title
14 of the Code of Federal Regulations.
D. Reporting Requirements
1. Documentation of all operations associated with UAS activities is required regardless
of the airspace in which the UAS operates. NOTE: Negative (zero flights) reports are
required.
2. The proponent must submit the following information on a monthly basis to
UAS COA On-Line:
a. Name of proponent, and aircraft registration number,
b. UAS type and model,
c. All operating locations, to include city name and latitude/longitude,
d. Number of flights (per location, per aircraft),
e. Total aircraft operation hours,
f. Takeoff or landing damage, and
g. Equipment malfunction. Required reports include, but are not limited to, failures or
malfunctions to the:
1) Control station
2) Electrical system
3) Fuel system
4) Navigation system
5) On-board flight control system
6) Powerplant
3. The number and duration of lost link events (control, performance and health
monitoring, or communications) per UAS, per flight.
4. Incident/Accident/Mishap Reporting
After an incident or accident that meets the criteria below, and within 24 hours of that
incident, accident or event described below, the proponent must provide initial
notification of the following to the FAA via email at mailto: 9-AJV-115-
[email protected] and via the UAS COA On-Line forms (Incident/Accident).
a. All accidents/mishaps involving UAS operations where any of the following occurs:
1) Fatal injury, where the operation of a UAS results in a death occurring within 30
days of the accident/mishap
2) Serious injury, where the operation of a UAS results in:
(a) Hospitalization for more than 48 hours, commencing within 7 days from the
date of the injury was received;
(b) A fracture of any bone (except simple fractures of fingers, toes, or nose);
(c) Severe hemorrhages, nerve, muscle, or tendon damage;
(d) Involving any internal organ; or
(e) Involves second- or third-degree burns, or any burns affecting more than 5
percent of the body surface.
3) Total unmanned aircraft loss
4) Substantial damage to the unmanned aircraft system where there is damage to
the airframe, power plant, or onboard systems that must be repaired prior to
further flight
5) Damage to property, other than the unmanned aircraft.
b. Any incident/mishap that results in an unsafe/abnormal operation including but not
limited to
1) A malfunction or failure of the unmanned aircraft’s on-board flight control
system (including navigation)
2) A malfunction or failure of ground control station flight control hardware or
software (other than loss of control link)
3) A power plant failure or malfunction
4) An in-flight fire
5) An aircraft collision involving another aircraft.
6) Any in-flight failure of the unmanned aircraft’s electrical system requiring use
of alternate or emergency power to complete the flight
7) A deviation from any provision contained in the COA
8) A deviation from an ATC clearance and/or Letter(s) of Agreement/Procedures
9) A lost control link event resulting in
(a) Fly-away, or
(b) Execution of a pre-planned/unplanned lost link procedure.
c. Initial reports must contain the information identified in the COA On-Line
Accident/Incident Report.
d. Follow-on reports describing the accident/incident/mishap(s) must be submitted by
providing copies of proponent aviation accident/incident reports upon completion of
safety investigations.
e. Civil operators and Public-use agencies (other than those which are part of the
Department of Defense) are advised that the above procedures are not a substitute
for separate accident/incident reporting required by the National Transportation
Safety Board under 49 CFR Part 830 §830.5.
f. For other than Department of Defense operations, this COA is issued with the
provision that the FAA be permitted involvement in the proponent’s
incident/accident/mishap investigation as prescribed by FAA Order 8020.11,
Aircraft Accident and Incident Notification, Investigation, and Reporting.
E. Notice to Airmen (NOTAM).
A distant (D) NOTAM must be issued when unmanned aircraft operations are being
conducted unless notification of UAS operations will compromise the safety of the public
agency. This requirement may be accomplished:
1. Through the proponent’s local base operations or NOTAM issuing authority, or
2. By contacting the NOTAM Flight Service Station at 1-877-4-US-NTMS (1-877-487-
6867) not more than 72 hours in advance, but not less than 24 hours for UAS operations
prior to the operation. The issuing agency will require the:
a. Name and address of the pilot filing the NOTAM request
b. Location, altitude and operating area
c. Time and nature of the activity.
Note: The NOTAM must identify actual coordinates and a Radial/DME fix of a prominent
navigational aid, with a radius no larger than that where visual line of sight with the UA
can be maintained. The NOTAM must be filed to indicate the defined operations area and
periods of UA activity. NOTAMs for generalized, wide-area, or continuous periods are not
acceptable.
3. Due to the immediacy of some tactical operations, it is understood by the Federal
Aviation Administration that this NOTAM notification may be reduced to no less than
30 minutes prior to these operations.
FLIGHT STANDARDS SPECIAL PROVISIONS
Failure to comply with any of the conditions and limitations of this COA will be grounds for
the immediate suspension or cancellation of this COA.
1. Operations authorized by this COA are limited to UAS weighing less than 55 pounds,
including payload. Proposed operations of any UAS weighing more than 55 pounds will
require the proponent to provide the FAA with a new airworthiness Certificate (if
necessary), Registration, Aircraft Description, Control Station, Communication System
Description, Picture of UAS and any Certified TSO components. Approval to operate the
new UAS is contingent on acknowledgement from FAA of receipt of acceptable
documentation.
2. External Load Operations, dropping or spraying aircraft stores, or carrying hazardous
materials (including munitions) is prohibited.
3. The UA may not be operated at a speed exceeding 87 knots (100 miles per hour). The COA
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 operating airspeed recommended by the aircraft manufacturer.
4. The proponent shall conduct and document initial training at a specific training site that will
allow for the conduct of scenario-based training exercises. This training should foster a high
level of flight proficiency and promote efficient, standardized coordination among pilots,
visual observers, and ground crew members. To ensure safety and compliance, the training
site should be well clear of housing areas, roads, non-participating persons, and watercraft.
When the proponent has determined that sufficient training scenarios have been completed
to achieve an acceptable level of competency, the proponent is authorized to conduct UAS
public aircraft operations in accordance with Title 49 USC §§ Part 40125 at any location
within the National Airspace System under the provisions of this COA.
5. The UA must be operated within visual line of sight (VLOS) of the Pilot in Command
(PIC) and or the visual observer (VO) at all times. This requires the PIC and VO to be able
to use human vision unaided by any device other than corrective lenses, as specified on
their FAA-issued airman medical certificate or equivalent medical certification as
determined by the government entity conducting the PAO. The VO may be used to satisfy
the VLOS requirement as long as the PIC always maintains VLOS capability.
6. This COA and all documents needed to operate the UAS and conduct operations in
accordance with the conditions and limitations stated in this COA are hereinafter referred to
as the operating documents. The Proponent must follow the procedures as outlined in the
operating documents. If a discrepancy exists within the operating documents, the
procedures outlined in the approved COA take precedence and must be followed. The
proponent may update or revise the operating documents, excluding the approved COA, as
needed. It is the proponent’s responsibility to track such revisions and present updated and
revised operating documents to the Administrator or any law enforcement official upon
request. The proponent must also present updated and revised documents if they petition for
extension or amendment to this COA. If the proponent determines that any update or
revision would affect the basis upon which the FAA granted this COA, then the proponent
must petition for an amendment to this COA. The FAA’s UAS Integration Office (AFS−80)
may be contacted if questions arise regarding updates or revisions to the operating
documents.
7. The operating documents must be accessible during UAS operations and made available to
the Administrator and/or law enforcement upon request.
8. 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 COA. Functional test
flights may only be conducted by a PIC with a VO and essential ground crew, 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. The proponent is responsible for maintaining and inspecting the UAS to ensure that it is in a
condition for safe operation.
10. 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.
11. The proponent must follow the UAS manufacturer’s maintenance; overhaul, replacement,
inspection, and life limit requirements for the aircraft and aircraft components.
12. Each UAS operated under this COA must comply with all manufacturer safety bulletins.
13. Government entities conducting public aircraft operations (PAO) involve operations for the
purpose of fulfilling a government function that meet certain conditions specified under
Title 49 United States Code, Section 40102(a)(41) & 40125(a)(2). PAO is limited by the
statute to certain government operations within U.S. airspace. These operations must
comply with general operating rules including those applicable to all aircraft in the National
Airspace System. Government entities may exercise their own internal processes regarding
aircraft certification, airworthiness, pilot, aircrew, and maintenance personnel certification
and training.
14. The Proponent may not permit any PIC to operate unless the PIC demonstrates the ability to
safely operate the UAS in a manner consistent with how the UAS will be operated under
this COA, including evasive and emergency maneuvers and maintaining appropriate
distances from persons, vessels, vehicles and structures. PIC qualification flight hours and
currency must be logged in a manner consistent with 14 CFR § Part 61.51(b). Flights for
the purposes of training the proponent’s PICs and VOs (training, proficiency, and
experience-building) and determining the PIC’s ability to safely operate the UAS in a
manner consistent with how the UAS will be operated under this COA are permitted under
the terms of this COA. However, training operations may only be conducted during
dedicated training sessions. During training, proficiency, and experience-building flights,
all persons not essential for flight operations are considered nonparticipants, and the PIC
must operate the UA with appropriate distance from nonparticipants in accordance with 14
CFR § Part 91.119.
15. Pilots are reminded to follow all federal regulations (e.g. remain clear of all Temporary
Flight Restrictions). Additionally, operations over areas administered by the National Park
Service, U.S. Fish and Wildlife Service, or U.S. Forest Service must be conducted in
accordance with Department of Interior/US Fish & Wildlife Service requirements. (See 50
CFR §§ Part 27.34 and FAA Aeronautical Information Manual Section 4, paragraph 7-4-6.)
16. The presence of observers (i.e. spectators) during flight operations, other than initial or
recurrent pilot-in-command and visual observer training is authorized given compliance
with the following provisions:
a. Observers will receive a safety briefing that addresses the mission intent, safety barriers,
non-interference with UAS mission personnel, and emergency procedures in the event
of an incident or accident.
b. Observers will be directed to, and contained within, a specific observation point that
minimized the risk of injury and ensures that they do not interfere with the UAS
mission.
c. Proponent will ensure that observers do not engage in conversations, discussions, or
interviews that distract any crewmember or mission personnel from the performance of
his/her duties or interfere in any way with the proper conduct of those duties.
d. Proponent will limit the number of observers to that which can be adequately monitored
and protected by personnel and resources onsite.
e. Operation will be conducted in compliance with ALL of the existing provisions,
conditions and mitigations of this COA.
17. UAS operations may be conducted during the day or night (see Flight Standards Special
Provision 25 for night operations) as defined in 14 CFR § Part 1.1. All operations must be
conducted under visual meteorological conditions (VMC). Flights under special visual
flight rules (SVFR) are not authorized.
18. 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.
19. If the UAS loses communications or loses its GPS signal, the UA must return to a predetermined
location within the defined operating area.
20. The PIC must abort the flight in the event of emergencies or flight conditions that could be
a risk to persons and property within the operating area.
21. 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 than five minutes.
22. Documents used by the proponent to ensure the safe operation of the UAS and any
documents required under 14 CFR § Part 91.9 and Part 91.203 must be available to the PIC
at the UAS Ground Control Station any time the aircraft is operating. These documents
must be made available to the Administrator or any law enforcement official upon request.
23. The UA must remain clear and give way to all manned aviation operations and activities at
all times.
24. The UAS may not be operated by the PIC from any moving vehicle unless the government
entity conducting PAO has determined that such operations can be conducted without
causing undue hazard to persons or property and has presented such safety procedures to
the FAA. Safety procedures include, but not limited to, emergency procedures, lost link
procedures, and consideration of terrain and obstructions that may restrict the ability to
maintain visual line of sight. Operations must also comply with all applicable federal, state
and local laws pertaining to operations from a moving vehicle.
25. Small UAS operations may be conducted at night, as defined in 14 CFR § 1.1, provided:
a. All operations under the approved COA must use one or more visual observers (VO);
b. Prior to conducting operations that are the subject of the COA, the remote pilot in
command (PIC) and VO must be trained to recognize and overcome visual illusions
caused by darkness, and understand physiological conditions which may degrade
night vision. This training must be documented and must be presented for inspection
upon request from the Administrator or an authorized representative;
c. The sUA must be equipped with lighted anti-collision lighting visible from a distance
of no less than 3 statute miles. The intensity of the anti-collision lighting may be
reduced if, because of operating conditions, it would be in the interest of safety to do
so.
Note: Night, as defined in 14 CFR § 1.1 is equal to approximately 30 minutes after sunset
until 30 minutes before sunrise.
AIR TRAFFIC CONTROL SPECIAL PROVISIONS
A. Coordination Requirements.
1. Compliance with Standard Provisions, E. Notice to Airmen (NOTAM) satisfies the
coordination requirement. Operator must cancel NOTAMs when UAS operations
are completed or will not be conducted.
2. Coordination and de-confliction between Military Training Routes (MTR) and
Special Use Airspace (SUA) is the operator’s responsibility. When identifying an
operational area the operator must evaluate whether an MTR or SUA will be
affected. In the event the UAS operational area overlaps an MTR or SUA, the
operator will contact the scheduling agency in advance to coordinate and deconflict.
Approval from the scheduling agency for MTR and non-regulatory SUA
is not required. Scheduling agencies for MTRs are listed in the Area Planning
AP/1B Military Planning Routes North and South America. Scheduling agencies
for SUAs are listed in the FAA JO 7400.8.
B. Communication Requirements.
When operating in the vicinity of an airport without an operating control tower the PIC will
announce operations on appropriate Unicom/CTAF frequencies alerting manned pilots of
UAS operations.
C. Flight Planning Requirements.
This COA will allow small UAS (weighing less than 55 pounds) operations during daytime
VMC conditions only within Class G airspace under the following limitations:
a. At or below 400 feet AGL, and
b. Beyond the following distances from the airport reference point (ARP) of a public use
airport, heliport, gliderport, or water landing port listed in the Airport/Facility Directory,
Alaska Supplement, or Pacific Chart Supplement of the U.S. Government Flight
Information Publications:
1) 5 nautical miles (NM) from an airport having an operational control tower, or
2) 3 NM from an airport having a published instrument flight procedure, but not
having an operational control tower, or
3) 2 NM from an airport not having a published instrument flight procedure or an
operational control tower, or
4) 2 NM from a heliport.
c. The PIC is responsible for identifying the appropriate ATC jurisdiction nearest to the
area of operations defined by the NOTAM.
D. Procedural Requirements.
1. This COA authorizes the proponent to conduct UAS flight operations strictly within a
“defined incident perimeter” as identified under the required provision of Section IE.
Notice to Airmen (NOTAM) of this COA.
2. All Flights operations must be conducted at least 500 feet from all nonparticipating
persons, vessels, vehicles, and structures unless:
a. A “defined operating area” is described as a location identified by a Very High
Frequency Omnidirectional Range (VOR) Radial/Distance Measuring Equipment
(DME) fix. This location must have a defined perimeter that is no larger than that
where visual line of sight with the UA can be maintained and a defined
operational ceiling at or below 400’ Above the Ground (AGL).
b. The “defined incident perimeter” is established by means of barriers, structures or
public safety officials authorized to sufficiently protect nonparticipating persons
from entering the perimeter of the operating area.
c. UAS operations must remain within this “defined incident perimeter” controlled
by law enforcement at or below 400 feet AGL. The proponent and supporting law
enforcement/first responder/safety agencies will discover and manage all risks
and associated liabilities that exist within the defined operating perimeter and all
risks must be legitimately mitigated to assure the safety of people and property.
d. The PIC has made a safety assessment of the risk of operating closer to those
objects and determined that it does not present an undue hazard and flight
operations will not be conducted directly over nonparticipating persons. The PIC,
VO, operator trainees or essential persons are not considered nonparticipating
persons under this provision.
E. Emergency/Contingency Procedures.
1. Lost Link Procedures:
a. In the event of lost link, the UA must initiate a flight maneuver that ensures timely
landing of the aircraft. Lost link airborne operations shall be predictable and the UA
shall remain within the defined operating area filed in the NOTAM for that specific
operation. In the event that the UA leaves the defined operating area, and the flight
track of the UA could potentially enter controlled airspace, the PIC will immediately
contact the appropriate ATC facility having jurisdiction over the controlled airspace
to advise them of the UASs last known altitude, speed, direction of flight and
estimated flight time remaining and the Proponent’s action to recover the UA.
b. Lost link orbit points will not coincide with the centerline of published Victor
airways.
c. The UA lost link flight track will not transit or orbit over populated areas.
d. Lost link programmed procedures must de-conflict from all other unmanned
operations within the operating area.
2. Lost Visual Line of Sight:
A VO loses sight of the UA, they must notify the PIC immediately. If the UA is visually
reacquired promptly, the mission may continue. If not, the PIC will immediately
execute the lost link procedures.
3. Lost Communications:
If communication is lost between the PIC and the VO(s), the PIC must immediately
execute the lost link procedures.


Jonathan Rupprecht

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

Complete Guide to Taylor v. FAA (Drone Registration Lawsuit)

Summary of the Drone Registration Lawsuit

drone-registration-lawsuitJohn Taylor and some other attorneys (myself being one of them) challenged the FAA. There were three cases initially filed and consolidated. The basic way to understand the issues in all three cases is Section 336 of the FAA Modernization and Reform Act of  2012 which says 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 FAA switching interpretations from model aircraft not being required to be registered to now being required to be registered was a prohibited interpretive rule. (No rule or regulation).
  • The creation of Part 48 was a regulation “regarding model aircraft[;]” thus, it is illegal.
  • The switching interpretations to apply the Special Flight Rules Area around D.C. to model aircraft is an interpretive rule in violation of 336.

 

Table of Contents

Note: the FAA created a program to get your $5 registration refund and also your data deleted from the registry. 

Why This Drone Registration Lawsuit Was Important

The reason why this case is important is that this is the first real high-level court with a substantive ruling.

This is a federal circuit court – right below the United States Supreme Court.

This was a short unanimous decision with no concurring or dissenting opinions. That is sending a big message to the FAA that this is settled law.

 

 

Who Is Affected By This Ruling?

This ruling is only for those flying their aircraft in accord with Section 336. This ruling does NOT apply to commercial or public aircraft.  This means the model aircraft being flown must be:

(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.

AND

(1) the aircraft is flown strictly for hobby or recreational use;
(2) the aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;
(3) the aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization;
(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft; and
(5) when flown within 5 miles of an airport, the operator of the aircraft provides the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport) with prior notice of the operation (model aircraft operators flying from a permanent location within 5 miles of an airport should establish a mutually-agreed upon operating procedure with the airport operator and the airport air traffic control tower (when an air traffic facility is located at the airport)).

 

Keep in mind that just because you are flying recreationally does NOT mean you are in this protected category. A great example is people flying recreationally but not in accord with a community-based organization’s safety guidelines. These people are really recreational flyers who are operating under Part 107.  See below in the myths and misconceptions area for more info.

Also, the ruling was regarding the application of a NEW regulation towards model aircraft, but the court never ruled on whether the FAA could apply Part 47 (the already created paper based form of registration) to Section 336 model aircraft.

Where Are We Going from Here?

The FAA can choose to ask for a rehearing, but the D.C. Circuit Handbook of Practice says, “[v]ery few petitions for rehearing are granted. Sanctions may be imposed as a penalty for filing a petition for rehearing found to be wholly without merit.”

Another option is to file a petition to the United States Supreme Court. Something like 1-2% of the cases appealed to the Supreme Court are granted certiorari to be argued at the U.S. Supreme Court. This means that there is a high chance this is the final stop for this case.

Additionally, this is NOT the only case. There are two other cases out there!

Taylor v. FAA – Part 2

There is a fourth case Taylor filed that was consolidated with Electronic Privacy Information Center‘s challenge. The fourth case can be summed up as Part 101 is a regulation created “regarding model aircraft.” Part 101 was literally a copy-paste of Part 336 which makes it a per se violation.

 

Why was this 4th lawsuit filed?

 

The big reason why is the FAA can cause a lot of problems by creating interpretations of the different portions of Part 101 and if challenged in court, they would have a high chance of winning under Chevron deference. 

 

The FAA could create some interpretation saying a community-based organization must meet such-n-such standards for it to be recognized or they could say within line of sight means no first person view flying but only using your eyeballs.

 

Based upon the court’s ruling, there is a chance Part 101 will be struck down. The FAA will likely lose a second time.

The Academy of Model Aeronautics Lawsuit

The Academy of Model Aeronautics filed a lawsuit in August 2014 challenging the FAA’s model aircraft interpretation. The case has sat in abeyance but recently, the AMA has indicated they will move forward with the case. I’m not sure why it has just lingered in the D.C. Circuit for 16 months.

 

How the Court Ruled:

Taylor’s Arguments

Court’s Ruling

The creation of Part 48 was a regulation.“[T]he 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. …. In short, the Registration Rule is a rule regarding model aircraft.”
The FAA switching interpretation from model aircraft not being required to be registered to now being required to be registered was a prohibited interpretive rule.Footnote 1. “Taylor also purports to challenge the FAA’s October 2015 announcement that it was reviewing its registration requirements for model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is subsumed by Taylor’s challenge to the Registration Rule. We therefore do not separately consider it here.”
The interpretation regarding the Special Flight Rules Area around D.C. is an interpretation in violation of 336.“We need not consider that question because Taylor’s challenge is untimely.”

Issues Raised in the Drone Registration Lawsuit the Court did NOT Rule On.

  • Whether the FAA has jurisdiction to regulate the lower portions of the sky?
  • Whether the interpretation now requiring registration under Part 47 is in violation of 336?
  • Whether the interpretation applying the special flight rules around D.C. apply to model aircraft in violation of 336?
  • Whether the FAA has jurisdiction to register people, not aircraft, under their enabling statutes in Title 49?
  • Whether Part 48, as applied to non-recreational operators, was created in violation of the Administrative Procedures Act?

To see very in-depth discussions on the issues NOT answered, see my articles:

 Here is the audio recording of the oral arguments before the judges.

 

Questions Left Unanswered

  • Does anyone get their $5 back?
  • What is the FAA going to do with the all the registration data?
  • Can the FAA still regulate model aircraft flyers under Part 47?

 

John Taylor and I talking about the Case on SUASNEWS:

Who Has Taken What Side In The Drone Registration Case Ruling

Favorable to Drone Registration:

  • AUVSI – “AUVSI is disappointed with the decision today by the U.S. Court of Appeals to reject the FAA’s rule for registering recreational unmanned aircraft systems (UAS). A UAS registration system is important to promote accountability and responsibility by users of the national airspace, and helps create a culture of safety that deters careless and reckless behavior. We plan to work with Congress on a legislative solution that will ensure continued accountability across the entire aviation community, both manned and unmanned.” from AUVSI STATEMENT ON U.S. COURT OF APPEALS DECISION ON UAS REGISTRATION
  • Small UAV Coalition – “The viability and growth of the UAS industry is contingent on the safe and responsible integration of UAS technology. This is only possible if all operators – commercial and recreational alike – understand their responsibilities and remain informed of the evolving standards around UAS technology. Today’s ruling generates uncertainty by eliminating a tool developed to maintain accountability and enable streamlined communication between the FAA and recreational UAS operators.The FAA must have appropriate authority to maintain reasonable oversight of UAS operations, including management of a national UAS registry, which is the first step to identifying UAS operating in the national airspace. A lack of reasonable authority will inhibit safe integration and ultimately obstruct commercial UAS operations, putting the United States at risk of falling behind global competitors who are increasingly embracing the benefits of UAS. The Small UAV Coalition looks forward to working with lawmakers and regulators to ensure that the FAA has the authority necessary to facilitate the safe, widespread, and expeditious integration of UAS into the national airspace (NAS).” – Press Release on Small UAV Coalition Website
  • Commercial UAV Alliance – The Commercial Drone Alliance is committed to promoting the safety and security of the National Airspace System (NAS). We believe registering drones and having reliable identification of all operators is critically important to holding operators accountable, and enhances the safety of the NAS. The registration requirement also provided much-needed education around the rules for safe hobbyist drone flight. As a policy matter, we believe the lack of a registration requirement could ultimately jeopardize the safety and security of the NAS. The Alliance looks forward to working with Congress to ensure that the FAA has clear authority to require registration of all drones, including hobbyist drones. –Press Release
  • Drone Manufacturer’s Alliance – “DMA is studying the implications of today’s registration-related court ruling, but believes the existing system has worked well to protect the interests of safe and responsible pilots as well as the interests of society at large. As we wait for word on whether the FAA will appeal this ruling, we hope all sides see the benefit of a reasonable and minimally restrictive form of basic regulation that has helped make drone operations in America overwhelmingly safe. We look forward to working with policymakers on a long-term legislative solution.” –Press Release
  • Helicopter Association International – “Helicopter Association International (HAI) strongly disagrees with the decision by the U.S. Court of Appeals to halt the registration of drones deemed to be “model aircraft.” Helicopters routinely operate at the same low altitudes as drones, and we in the helicopter industry are deeply concerned about our ability to fly safely in air space where pilots could encounter any unmanned aircraft, be it commercial or otherwise. One valuable component of the FAA’s drone registration program is the opportunity to educate the general population about the hazards of careless drone operation, and we believe that the FAA’s drone registration program serves to protect everyone in the air and on land. HAI strongly urges Congress to allow the FAA to do what the FAA does best; to provide safe and efficient use of our national airspace. We request that the FAA be given the governance and oversight over all forms of aircraft in order to ensure the safety of the National Airspace System.” – Press Release
  • (Ret.) Major General Poss who Founded ASSURE poss-tweet

In favor of the Court’s Ruling:

  • Drone Users Group – A statement that DUG supports the ruling is not needed. DUG has been the only organization that has helped the Taylor case by helping organize a fund to reimburse for court costs. DUG has been with Tayor right from the begining.
  • Academy of Model Aeronautics – “AMA is encouraged to see the Court affirm the strength of the Special Rule for Model Aircraft, otherwise known as Section 336, under which our members operate. For decades, AMA members have registered their aircraft with AMA and have followed our community-based safety programming. It is our belief that a community-based program works better than a federally mandated program to manage the recreational community.” – SUAS News

Other Interesting Quotes:

  • Federal Aviation Administration – “We are carefully reviewing the U.S. Court of Appeals decision as it relates to drone registrations. The FAA put registration and operational regulations in place to ensure that drones are operated in a way that is safe and does not pose security and privacy threats. We are in the process of considering our options and response to the decision.” from Press Release – FAA Statement Regarding US Court of Appeals Decision
  • Brendan Schulman – ‘”The FAA’s innovative approach to drone registration was very reasonable, and registration provides for accountability and education to drone pilots,’ the company’s VP of Policy & Legal Affairs Brendan Schulman said in a statement offered to TechCrunch.’  ‘I expect the legal issue that impedes this program will be addressed by cooperative work between the industry and policymakers.'”  -Tech Crunch
  • Lisa Ellman – “‘The goal of the registration rule was to assist law enforcement and others to enforce the law against unauthorized drone flights, and to educate hobbyists that a drone is not just a toy and operators need to follow the rules,’ said Lisa Ellman, an attorney and specialist on the drone regulation with the law firm Hogan Lovells. ‘These are worthy goals, so if this ruling stands it wouldn’t surprise us to see a legislative response here.'” – Recode

 

Myths and Misconceptions Surround this Ruling

 

faa-drone-prosecution-336-model-aircraftMyth 1 – Recreational Drones Are Now Completely Unregulated. 

This is not true. The FAA already regulates recreational flying that does NOT fall into the Section 336 protected bubble -it’s called Part 107.

Section 336 says the FAA cannot create a rule or regulation regarding model aircraft if: …..

“(2) the aircraft is operated in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization; …….

…….

(4) the aircraft is operated in a manner that does not interfere with and gives way to any manned aircraft[.]”

The bad actors we see on the news are not flying in accord with community-based organization SAFETY guidelines. (AMA safety code says,  model aircraft cannot be flown in a careless or reckless manner.) This means those recreational flyers do NOT even fall into the Section 336 protected category (big green circle to the left) and would be surprised to learn they fall into Part 107 which requires registration!

 

Myth 2 – The FAA CANNOT Do Anything to Model Aircraft Flyers

What might come as a shock to many, Congress gave the FAA the ability to prosecute Section 336 model aircraft flyers who “endanger the safety of the national airspace system.” (Small green circle inside the red circle to the left).  Section 336(b) says, “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.”

The FAA can regulate and prosecute non-336 recreational flyers and only prosecute model aircraft endangering the safety of the national airspace. The FAA has tools in their toolbox for both scenarios!

 

Myth 3 – You Took Away a Good Tool for Finding the Bad Guys!

Was registration a tool that could be helpful? Yes. Was the way the FAA did it good? Definitely no.

1. History Repeating Itself. 

The next part sounds like history repeating itself. Let’s go back in time to 1988 where the U.S. Congress passed the Federal Aviation Administration Drug Enforcement Assistance Act of 1988 (‘‘DEA Act’’). Because the following text was so good, I just copied-pasted the following text from the FAA’s own Federal Register post from January 2007:

On March 12, 1990, the FAA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register (55 FR 9270). The NPRM proposed changes to certain requirements concerning registration of aircraft, certification of pilots, and penalties for registration and certification violations. The NPRM also announced non-rulemaking procedural changes. We intended the changes to correct deficiencies in our systems and procedures identified in the FAA Drug Enforcement Assistance Act of 1988 (Pub. L. 100-690) (hereafter, “the Act”). The Act amended FAA’s authorizing legislation (49 U.S.C. 40101 et seq.) to-

……..

Modify the aircraft registration system to more  effectively serve the needs of buyers and sellers of aircraft, drug  enforcement officials, and other users of the system;

……..

The comment period closed on May 11, 1990. We received 373  comments, very few of which expressed support for the proposed changes. For the most part, commenters believed that the proposed changes would impose burdens only on law-abiding citizens, while criminals would simply circumvent them. As a result, FAA decided to delay the rulemaking process to assess whether specific technological improvements to the FAA Civil Aviation Registry (the Registry) could meet the intent of the Act. We believe we have now fulfilled most requirements of the Act through changes to systems and procedures used by the Registry. For this reason, we have withdrawn the 1990 NPRM in its entirety. Readers interested in the specific actions we have taken to fulfill the requirements of the Act should refer to the notice withdrawing the 1990 NPRM (70 FR 72403, Dec. 5, 2005).

To complete our obligations under the Act, we are proposing to address two deficiencies noted in the Act and not fully addressed through changes made to the Registry. The first issue concerns the proper identification of pilots. Law enforcement agencies must be able to establish the true identity of those who hold pilot certificates.  The second issue concerns the timely reporting of aircraft sales or other transfers of ownership. Law enforcement agencies must be able to determine who is the owner of an aircraft, particularly when ownership of the aircraft has recently been transferred.

Wow. The FAA admitted they had deficiencies. And what could those be?

2. Aircraft Registration Deficiencies Identified by Congress and the FAA

Congress told us what some of the deficiencies were in the DEA Act in Section 7205:

“[The FAA] shall assure positive and verifiable identification of each person applying for or holding such a certificate and shall address, at a minimum, each of the following deficiencies in and abuses of the existing system:

(1) The use of fictitious names and addresses by applicants for such certificates.

(2) The use of stolen or fraudulent identification in applying for such certificates.

(3) The use by a person applying for such a certificate of a post office box or ‘mail drop’ as a return address for the purpose of evading identification of such person’s address.

(4) The use of counterfeit and stolen airman’s certificates by pilots.

(5) The absence of information concerning physical characteristics of holders of such certificates.”

 

3. Comparison of Registry Deficiencies from the DEA ACT to Part 48

Let’s now compare these 5 points from the DEA ACT to the Part 48 registry as applied to model aircraft.

DEA ACT

Part 48

(1) The use of fictitious names and addresses by applicants for such certificates.Section 48.100(b) asks for name, physical address (unless you can’t receive mail there, then a mailing address also), email address.   THE BIG PROBLEM IS NO ONE CHECKS HOW ACCURATE IT IS! THIS IS ON THE HONOR SYSTEM.
(2) The use of stolen or fraudulent identification in applying for such certificates.Once again, a person could just steal a person’s identity and register the drone. Furthermore, they don’t really need to even steal it. All you need to know is a person’s name, their address, and have a disposable email address.
(3) The use by a person applying for such a certificate of a post office box or ‘mail drop’ as a return address for the purpose of evading identification of such person’s address.No one checks the address against a government issued ID when registering so how does anyone know where anyone lives?! Furthermore, you don’t have to have a government ID with you when you fly the drone for law enforcement to compare names and addresses.
(4) The use of counterfeit and stolen airman’s certificates by pilots.Part 48 was only registration and not an airmen certificate, but subsection 4 raises a good point about how does anyone know if the registration is stolen or if the registration (sharpied on or taped on) was counterfeit of a legitimate registration!
(5) The absence of information concerning physical characteristics of holders of such certificates.The model aircraft registration only asked for a name, an address that can receive mail, and an email address. Nothing about the person.

In short, Part 48 fails on the points Congress brought up which were designed to make things more secure with the Part 47 paper-based registry.

4. Not All Drones Are Registered

Below I graphed out actual registrations versus the FAA’s projection of hobby model aircraft using data from the FAA’s 2017 Aerospace Forecast and multiple speeches Administrator Huerta gave as archived on the FAA’s website.

part-48-registration-vs-projected-hobby-drones

You can see that there is a gap between what the FAA has estimated and what has actually been registered.

The only way registration makes sense is when it is done at the point of sale, with the seller responsible for reporting, as opposed to this “honor system” which the FAA has been operating under.

The graph above proves what everyone knew, that people would NOT register.

 

 

5. Many Reasons Why This Part 48 Registration Would Not Work.

I raised many issues when the registration ARC was first formed. I’m going to list below some of the big problems that I pointed out (all the way back in the fall of 2015) in my article 11 Big Problems with the FAA’s Mandatory Drone Registration.

What happens when the person does NOT want to fly anymore?

So the citizen has to register his drone. The drone registration last for 3 years under the current regulations. Are you going to force people to re-register their drones? Must they always have the drone registered? I can see a large group of people just letting the registration lapse and then selling their drones off on Amazon, Ebay, Craiglist, flea markets, and garage sales. Are the sellers required to keep paperwork of who they sold the drone to?

How are you going to identify the aircraft after the incident/crime/accident?

The pieces of a drone sucked into a jet engine are going to be all over the place. Are you going to require metal placards attached to the drone? Furthermore, it is easy to scratch off a serial number. Is possession of a drone with a scratched-off serial number going to become illegal?

The two main groups that are causing problems are the (1) “how high can it fly” group and the (2) “I will fly wherever I want” group. Both of these groups can be countered with geo-fencing far better than registration. Registration points you to who might have caused the incident, geo-fencing can help prevent it.

Mandatory drone registration does not help identify drones being seen by pilots but only if they are captured.

Manned aircraft N-numbers are hard enough to see. I can’t even see the logo on my Cheerson CX-10 from 10 feet. If there is a crash, do you really think you are going to find the small piece of plastic that had the “Sharpie-drawn” N-number on it, the mailbox number stickers, or the serial barcode sticker under the gimbal? The only counter to this is taglets mixed in the plastic matched up with laser etched numbers on the critical parts that would most likely survive a crash (motors, etc.). Simple registration is useless unless this is a comprehensive manufacturer backed plan. What happens if DJI requires registration but Yuneec does not?

Myth 4 –  This was necessary for security!

Do you know who owns the drones in the gapart-48-registration-vs-projected-hobby-dronesp between estimated and actually registered? I don’t – and neither does the FAA.

There was no point of sale requirement for registration.

Security has the word “secure” in it. How was this system secure?

Part 48 “Security” = A system where citizens voluntarily type in whatever information honestly, without 3rd party verification, and then tape on the registration to their drone.

The FAA should have looked to the DEA Act and Part 47 if they were really interested in security.

 

 

 

Myth 5 – This was necessary for safety!

HOW? A taped-on registration number brought about accountability? Tape can be easily removed, serial numbers scraped, or Sharpie-drawn marks marked over.

The follow-up response is that the registration checkout provided education which increased safety.

 

 

Myth 6 – Any substantial education that could have been received by those registering is now gone!

This is simply not true because (1) the FAA’s website with all its literature is still up and (2) the information provided in the checkout process was minuscule and legally wrong.

When you go through the registration process it takes you to one page where you have to acknowledge safety guidelines and under penalty of perjury, have to click a box that says, “I have read, understand and intend to follow the safety guidance.”

The Safety Guidance says:

Safety Guidance

My Commentary

I will fly below 400ft.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will fly within visual line of sight.Section 336 lists this.
I will be aware of FAA airspace requirements.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly directly over people.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly over stadiums and sports events.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly near emergency response efforts such as  fires.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.
I will not fly near aircraft, especially near airports.Just wrong.
I will not fly under the influence.Not legally required, but depending on certain circumstances, could be considered to be endangering the safety of the national airspace. The FAA can prosecute if endangering the safety of the national airspace.

 

part 48 registration

The “safety guidelines” on the certificate of registration do not completely match the safety guidelines in the checkout process!  It was as easy as copy-paste, but the FAA failed to make them match or include all the safety points.

So I do admit that there was education that went on through the registration process but it was (1) minuscule, (2) legally inaccurate, (3) not complete, and (4) not the ONLY way the public could be educated.

Myth 7  – We needed registration to help prosecute the bad actors. 

A reporter I was working on a story with  kindly shared this information with me that he obtained from Les Dorr, the official FAA spokesperson.

Since 2014, the FAA has only prosecuted 48 drone operators. Let that sink in. Only 48.

The FAA does not need any more tools in their toolbox. The FAA has many regulations to nab the bad guys. The FAA’s enforcement philosophy is education rather than enforcement which results in many investigations and cases being dropped. The enforcement philosophy and understaffed legal department are the problems, not the lack of regulations.

If FAA really wanted to crack down on bad actors, they need to ask Congress for more money to beef up their legal department to focus on UAS prosecutions. They also need to change their enforcement philosophy.

This whole thing strikes me as crazy. Many are upset at this ruling but seem to be silent when it comes to commercial drone operators losing business to illegal operators.Law abiding people are losing work right now to illegal operators and the FAA has only 48 prosecutions to show for it? All across this country legal operators are losing work because the FAA fails to prosecute.

On top of this, John Taylor requested information under the Freedom of Information Act “seeking all records of requests by law enforcement authorities or others to identify registrants of specific small unmanned aircraft based on the registration number located on such aircraft.”  Here is the response.

taylor-foia-registation

 

How this Ruling is a Good Thing

This ruling is very important because it stands for the rule of law. The government we live under is a government of laws, not people.  We are not governed by arbitrary decisions of government officials but by the law. Everyone must follow the law – drone flyers as well as the FAA.

This case set the broken bone that was Part 48. The FAA has the opportunity to regulate lawfully and to now be an example to the unlawful. It is extremely damaging to safety to declare to the unsafe flyers that they must follow the laws created while the FAA is completely ignoring what Congress said in Section 336 and the Administrative Procedures Act. The unsafe flyer will say to himself, “The FAA isn’t following the law, why should I?”

 

Suggestions for the FAA:

My helping with the case was not to just troll the FAA but to uphold the rule of law. I’m very much for safety. I’m a FAA-certificated flight instructor who drilled into the heads of my students -safety -safety- safety. One of my flight instructors died in a plane wreck. I have a dead man’s signature in my logbook who left a wife and baby behind. I can appreciate the importance of safety.

In light of my love for safety and the rule of law, I provide these suggestions to the FAA to increase safety, lawfully:

  • Create regulations that are compliant with Section 336. If you don’t like Section 336, ask Congress to change, but don’t just ignore it. Everyone should follow the law, right?
    • This most likely means requiring remote ID-related regulations will need to be crafted as to not encompass 336 model aircraft, or you should get Congress to repeal or change 336.
  • There is a second Taylor v. FAA case coming down the pike shortly. I estimate it will be ruled upon in 3-4 months. Based upon my reading of the latest ruling the FAA stands to lose a second time. Additionally, with the Trump 2 for 1 deal that happened, the FAA needs sacrifical regulations to repeal to create pro business drone regulations. I suggest the FAA use Part 101 as a sacrificial regulation to get out the over people regulations. This upholds the rule of law and promotes business!
  • Change your enforcement philosophy against drone operators. The current system is so lenient that very few cases reach prosecution.
  • Leverage the commercial operators out there who would be more than willing to turn in all their illegal competitors. There is an army of people out there willing to give the FAA info, but many have stopped because the FAA does very little.
  • Hold accountable large companies who hire illegal operators. I think there is some possibility here, depending on the facts, to prosecute companies who choose the illegal operators rather than safe operators. Some companies hire illegals as sub-contractors.  If there are any objections, the safe operator loses the job and the company finds a person who is willing to do whatever the company wants. Speak to some of the attorneys in the general counsel’s office. I’m sure some of them will agree that the definition of “operator” and “person” in the regulations is sufficiently broad, under certain facts, to capture large companies.
  • Ask Congress for more funding for legal staff to prosecute drone operators.
  • Maybe create a donation process where people can opt-in easily to donate their $5 from the registration back to the FAA to hire attorneys to prosecute illegal and unsafe drone flyers.

Suggestions for Industry

  • Stop pitting commercial versus recreational. What it should be is safe vs unsafe. People who fall into the 336 category are going to have to be SAFE to be protected; otherwise, they are not in this category and can be required under Part 107 to be registered.
  • Actively working to undue 336 is a waste of political influence. 336 protected flyers are by definition having to fly according to CBO safety guidelines. Commercial industry should focus on getting the FAA to prosecute the illegal and unsafe operators. There are commercial operators right now losing thousands of jobs across the US because the FAA won’t crack down on the illegal operators. Only a total of 48 drone enforcement actions have happened since 2014. Stop focusing on undoing 336 and focus on stopping those that take food off the table of your constituents or buyers of your products!

Suggestions for Flyers:

  • Call your federal congressman and senator and tell them how you are following the law and are losing business to illegal operators. The FAA needs more money to increase their legal man power and they need to change their enforcement philosophy.
  • The organizations you are a member of, ask them what they are doing to help YOU.  Find out if they are actually doing something or cancel your membership and use those funds to help yourself.
  • Report illegal and unsafe flyers to your local FAA flight standards district office. You can find you local one here.

 

Helpful Graph for Understanding the Overall Situation

taylor-v-faa-drone-registration-lawsuit

 

Actual Text of the Court’s Opinion with my Emphasis

 

Below is the opinion of the court. I bolded text below which was interesting.

 

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2017 Decided May 19, 2017
No. 15-1495

JOHN A. TAYLOR,
PETITIONER
v.
MICHAEL P. HUERTA, AS ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION,
RESPONDENT

Consolidated with 16-1008, 16-1011
On Petitions for Review of Orders
of the Federal Aviation Administration
John A. Taylor, pro se, argued the cause and filed the briefs for petitioner.
R. Ben Sperry was on the brief for amicus curiae TechFreedom in support of petitioner.
Abby C. Wright, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General at the time the brief was filed, Michael S. Raab, Attorney, and Paul M. Geier, Assistant General Counsel for Litigation, Federal Aviation Administration. Richard H. Saltsman, Attorney, Federal Aviation Administration, entered an appearance.

 

 

 

Before: KAVANAUGH and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH.

 

 

 

KAVANAUGH, Circuit Judge: Congress has charged the Federal Aviation Administration with maintaining the safety of the Nation’s air traffic. As small unmanned aircraft (sometimes known as drones) have become more popular, the number of unmanned aircraft-related safety incidents has increased. In 2015, in an effort to address that trend, the FAA promulgated a rule known as the Registration Rule. That Rule requires the owners of small unmanned aircraft operated for recreational purposes to register with the FAA. Unmanned aircraft operated for recreational purposes are known as “model aircraft,” and we will use that term throughout this opinion. Separately, the FAA published a notice, known as Advisory Circular 91-57A, announcing that model aircraft would be subject to certain flight restrictions in the Washington, D.C., area.

 

 

 

Petitioner John Taylor is a model aircraft hobbyist who is now required to register with the FAA. He has operated model aircraft from his home in the Washington, D.C., area, and he wants to continue to do so without registering or complying with the new flight restrictions. Taylor filed petitions in this Court to challenge the FAA’s Registration Rule and the Advisory Circular.

 

 

 

To begin, Taylor does not think that the FAA had the statutory authority to issue the Registration Rule and require him to register. Taylor is right. In 2012, Congress passed and President Obama signed the FAA Modernization and Reform Act. Section 336(a) of that Act states that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition. We therefore grant Taylor’s petition and vacate the Registration Rule to the extent it applies to model aircraft.

 

Taylor challenges Advisory Circular 91-57A on the ground that the Circular likewise violates Section 336(a). That Circular prohibits the operation of model aircraft in various restricted areas, including the Flight Restricted Zone around Washington, D.C. But Taylor’s petition challenging the Advisory Circular is untimely. By statute, a petitioner must challenge an FAA order within 60 days of the order’s issuance unless there are reasonable grounds for delay. 49 U.S.C. § 46110(a). Taylor acknowledges that he filed his petition challenging the Advisory Circular outside the 60-day window. He did not have reasonable grounds for the late filing. His petition for review of Advisory Circular 91-57A is therefore denied.

 

 

I

 

 

Congress has directed the FAA to “promote safe flight of civil aircraft” and to set standards governing the operation of aircraft in the United States. 49 U.S.C. § 44701(a). Congress has also required “aircraft” to be registered before operation. See id. §§ 44101, 44103. To register, aircraft owners must complete a registration process that is quite extensive, as one would imagine for airplanes.

 

 

But the FAA has not previously interpreted the general registration statute to apply to model aircraft. Instead, the FAA has issued an optional set of operational guidelines for model aircraft. The FAA’s Advisory Circular 91-57, titled Model Aircraft Operating Standards and published in 1981, provided suggestions for the safe operation of model aircraft. Under that Advisory Circular, compliance with the Circular by operators of model aircraft was voluntary. See J.A. 1.

 

 

As unmanned aircraft technology has advanced, small unmanned aircraft have become increasingly popular. In response, the FAA has taken a more active regulatory role. In 2007, the FAA promulgated a notice announcing a new regulatory approach to unmanned aircraft. See Unmanned Aircraft Operations in the National Airspace System, 72 Fed. Reg. 6689 (Feb. 13, 2007). In the notice, the FAA distinguished between commercial and recreational unmanned aircraft. Under the new regulatory approach, commercial unmanned aircraft are subject to mandatory FAA regulations. Those regulations require operators to report the aircraft’s intended use, time or number of flights, and area of operation, among other things. Id. at 6690. By contrast, this notice did not alter the longstanding voluntary regulatory approach for model aircraft. Id.

 

 

 

In 2012, Congress weighed in on the debate over regulation of unmanned aircraft. Congress passed and President Obama signed the FAA Modernization and Reform Act of 2012, Pub. L. No. 112–95, 126 Stat. 11 (codified at 49 U.S.C. § 40101 note). The Act codified the FAA’s longstanding hands-off approach to the regulation of model aircraft. Specifically, Section 336 of the Act, called the “Special Rule for Model Aircraft,” provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Id. § 336(a). The Act defines “model aircraft” as “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.” Id. § 336(c).

 

 

Notwithstanding that clear statutory restriction on FAA regulation of model aircraft, in December 2015 the FAA issued a final rule requiring owners of all small unmanned aircraft, including model aircraft, to register with the FAA. See Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594 (Dec. 16, 2015). The Registration Rule requires model aircraft owners to provide their names; physical, mailing, and email addresses; and any other information the FAA chooses to require. Id. at 78,595-96. The Registration Rule also creates an online platform for registration, establishes a $5 per-individual registration fee, sets compliance deadlines, and requires all small unmanned aircraft to display a unique identifier number issued by the FAA. Id. Model aircraft owners who do not register face civil or criminal monetary penalties and up to three years’ imprisonment. Id. at 78,630.

 

 

Also in 2015, the FAA withdrew Advisory Circular 91-57 and replaced it with Advisory Circular 91-57A. See J.A. 3-5. Among other things, the revised Circular provided that model aircraft could not fly within the Flight Restricted Zone covering Washington, D.C., and the surrounding areas without specific authorization. See id. at 5.
Petitioner Taylor is a model aircraft hobbyist living in the Washington, D.C., area. Taylor argues that Section 336 of the FAA Modernization and Reform Act bars both the FAA’s Registration Rule and Advisory Circular 91-57A.1

 

 

II

 

 

We first consider Taylor’s challenge to the Registration Rule.  Section 336 of the FAA Modernization and Reform Act of 2012 provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule is undoubtedly a rule. By requiring the prospective registration of all model aircraft, the Registration Rule announces an FAA “statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4) (defining “rule” for purposes of the Administrative Procedure Act). In addition, the Registration Rule is a rule “regarding a model aircraft.” FAA Modernization and Reform Act § 336(a).

 

 

 

The Registration Rule sets forth requirements for “small unmanned aircraft, including small unmanned aircraft operated as model aircraft.” Registration and Marking Requirements for Small Unmanned Aircraft, 80 Fed. Reg. 78,594, 78,594 (Dec. 16, 2015) (emphasis added). Lest there be any doubt about whether the Registration Rule is a rule “regarding a model aircraft” for purposes of Section 336, the Registration Rule states that its “definition of ‘model aircraft’ is identical to the definition provided in section 336(c) of Public Law 112–95,” the FAA Modernization and Reform Act. Id. at 78,604.

 

 

 

 

In short, the 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.

The FAA’s arguments to the contrary are unpersuasive. First, the FAA contends that the Registration Rule is authorized by pre-existing statutory provisions that are unaffected by the FAA Modernization and Reform Act. Specifically, the FAA notes that, under longstanding statutes, aircraft are statutorily required to register before operation. See 49 U.S.C. §§ 44101, 44103. But the FAA has never previously interpreted that registration requirement to apply to model aircraft. The FAA responds that nothing in the 2012 FAA Modernization and Reform Act prevents the FAA from changing course and applying that registration requirement to model aircraft now. The FAA claims that the Registration Rule is therefore not a new requirement at all, but merely a “decision to cease its exercise of enforcement discretion.” FAA Br. 20.

 

 

 

We disagree. The Registration Rule does not merely announce an intent to enforce a pre-existing statutory requirement. The Registration Rule is a rule that creates a new regulatory regime for model aircraft. The new regulatory regime includes a “new registration process” for online registration of model aircraft. 80 Fed. Reg. at 78,595. The new regulatory regime imposes new requirements – to register, to pay fees, to provide information, and to display identification –on people who previously had no obligation to engage with the FAA. Id. at 78,595-96. And the new regulatory regime imposes new penalties – civil and criminal, including prison time – on model aircraft owners who do not comply. See id. at 78,630. In short, the Registration Rule is a rule regarding model aircraft.2

 

 

 

Second, the FAA argues that the Registration Rule is consistent with one of the general directives of the FAA Modernization and Reform Act: to “improve aviation safety.” FAA Modernization and Reform Act preamble. Aviation safety is obviously an important goal, and the Registration Rule may well help further that goal to some degree. But the Registration Rule is barred by the text of Section 336 of the Act. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 188 (1994) (“Policy considerations cannot override our interpretation of the text and structure of the Act . . . .”). Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so. Perhaps not. In any event, we must follow the statute as written.

 

 

 

In short, Section 336 of the FAA Modernization and Reform Act prohibits the FAA from promulgating “any rule or regulation regarding a model aircraft.” The Registration Rule is a rule regarding model aircraft. Therefore, the Registration Rule is unlawful to the extent that it applies to model aircraft.

 

 

III

 

 

We next consider Taylor’s challenge to FAA Advisory Circular 91-57A. The Circular prohibits the operation of model aircraft in certain areas, including in the Washington, D.C., Flight Restricted Zone. Taylor argues, among other things, that the Circular violates Section 336(a) of the FAA Modernization and Reform Act of 2012 because it too is a rule regarding model aircraft.

 

 

We need not consider that question because Taylor’s challenge is untimely. A person seeking to challenge an FAA order must file the challenge within 60 days of the order’s issuance. 49 U.S.C. § 46110(a). The FAA published notice of Advisory Circular 91-57A in the Federal Register on September 9, 2015. See Revision of Advisory Circular 91–57 Model Aircraft Operating Standards, 80 Fed. Reg. 54,367 (Sept. 9, 2015). Taylor filed his petition for review on January 12, 2016 – more than two months after the 60-day deadline had passed.

 

 

 

A court may allow a late petition filed if the petitioner has “reasonable grounds” for missing the deadline. 49 U.S.C. § 46110(a). Taylor advances two grounds for his delay. But neither constitutes reasonable grounds under this statute.

 

First, Taylor argues that the FAA did not provide adequate notice that it had issued the new Circular. But on September 9, 2015, the FAA published its revisions in the Federal Register. See 80 Fed. Reg. 54,367. And Congress has determined that publication in the Federal Register “is sufficient to give notice of the contents of the document.” 44 U.S.C. § 1507. Second, Taylor contends that the Advisory Circular itself was so confusing that it did not provide notice about the conduct it prohibited. That is inaccurate. The Circular states: “Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” J.A. 5.

 

 

 

Second, Taylor contends that the Advisory Circular itself was so confusing that it did not provide notice about the conduct it prohibited. That is inaccurate. The Circular states: “Model aircraft must not operate in Prohibited Areas, Special Flight Rule Areas or, the Washington National Capital Region Flight Restricted Zone, without specific authorization.” J.A. 5.
Ultimately, Taylor admits that he simply did not know about the revised Circular until the FAA launched a “media blitz” to publicize it. Taylor Br. 68. That may be understandable. But under our precedent, Taylor must point “to more than simply ignorance of the order” as reasonable grounds for his delay. Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 521 (D.C. Cir. 2011). Taylor has not done so. His petition for review of Advisory Circular 91-57A is therefore untimely.
* * *
The FAA’s Registration Rule violates Section 336 of the FAA Modernization and Reform Act. We grant Taylor’s petition for review of the Registration Rule, and we vacate the Registration Rule to the extent it applies to model aircraft. Because Taylor’s petition for review of Advisory Circular 91-57A is untimely, that petition is denied.

 

So ordered.

 

Footnotes:

1 Taylor also purports to challenge the FAA’s October 2015 announcement that it was reviewing its registration requirements for model aircraft. See Clarification of the Applicability of Aircraft Registration Requirements for Unmanned Aircraft Systems (UAS) and Request for Information Regarding Electronic Registration for UAS, 80 Fed. Reg. 63,912 (Oct. 22, 2015). That challenge is subsumed by Taylor’s challenge to the Registration Rule. We therefore do not separately consider it here.

2 We note that Section 336(b) expressly preserves the FAA’s authority to “pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.” FAA Modernization and Reform Act § 336(b). That provision, however, is tied to safety. It does not authorize the FAA to enforce any pre-existing registration requirement.

 

 


Jonathan Rupprecht

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

Ultimate Guide to Drone Laws from a Lawyer & Pilot (2017)

Interested in drone laws? It can be a pain to try and figure out what is applicable. That is why I created this page! :)

Where NOT to Look for Help With Drone Laws

Here is a tip, stay away from Facebook or anyone else who is a newbie to aviation. They tend to waste your time and provide bad guidance. Seriously, you should be very careful where you get information from – not everyone is qualified to give you information. You don’t install random pieces of software you find on the internet onto your computer. Why would you do that for the laws and legal advice?

For example, I was reading a drone book by someone very popular on the internet which was just completely – flat out – totally- 100% wrong. The section on drone laws was just horrible. I think this person just hired a copywriter to write the book which resulted in utter garbage. If you were to rely on that bad advice, you could get in trouble and be on the receiving end of a lawsuit or criminal prosecution. Worse yet, on their Youtube channel, they continued to give out legal advice that was incomplete. Either they were keeping their readers in the dark about one critically important piece of advice or they were sincerely, and incorrectly, giving out advice which could result in legal consequences.

You should vet everyone before you give them your time. Here, vet me by looking at my bio.

Where to Look for Help With Drone Laws

You should look at resources in this order:

  1. The actual drone laws (Part 107, Part 101, Part 47, Part 48, etc.)
  2. The FAA’s website.
  3. My website! You can even use the search feature.
  4. Other competent drone lawyers or consultants (read the two articles below on how to find out as there are some really bad people out there).
  5. Your local Flight Standards District Office Aviation Safety Inspector, any FAA email on their website, etc.

I. United States Drone Laws

There are different levels of governmental authority in the U.S. We have a federated system where we are governed on certain things by the U.S. Federal Government and the state governments with those areas not enumerated to the U.S. government.

Additionally, the states have passed laws allowing counties, cities, and towns to regulate individuals.  At any given moment, a person can 3 or 4 levels of laws applying to them. For example, your drone operations could have the federal aviation laws, state drone laws, county drone laws, city or town laws, and maybe even HOA rules all applying to them.

Whether or not the states, counties, and cities can regulation drones is another big issue way outside of the scope of this article. As time goes on, things will shake out as to the scope of the drones laws the states, counties, cities, and towns can create. This will be determined by federal legislation or by federal case law determining what drone laws are preempted and which drone laws are not.

A. Federal Drone Laws

1. Federal Aviation Regulations (Enforced by the Federal Aviation Administration)

We immediately think of the Federal Aviation Administration (“FAA”) when it comes to drone laws. The FAA enforces the Federal Aviation Regulations (“FARs”) which apply to all sorts of things such as student training, airports, maintenance, flying, aircraft certification, rocket launches, etc.

The two parts of the FARs that apply to drone operators are Part 107 (for non-recreational operations) and Part 101 (for recreational operations). But that is NOT all!

All non-recreational drones are required to be registered under Part 47 or Part 48.

I have created many articles on the federal aviation regulations. I have listed below the most popular ones.

drone-laws-FAA-TSA-DOT-FCC-ITAR-EAR2. Other Federal Agencies and Their “Drone Laws”

The FAA is not the only agency that regulates drones. There are also others! Keep in mind this list is not exhaustive.

NTSB. If you crash your drone, you are required to report to the National Transportation Safety Board! Additionally, you might need to file an aviation safety reporting system form which is administered by NASA! See my article on What are you required to do after a drone crash?

TSA. The Transportation Safety Administration administers the alien flight student program (governed by the alien flight student regulations). All FAA certificated flight instructors know this and have to be careful regarding providing training as well as doing security awareness training. As I read it, I think the TSA could assert jurisdiction over flight instructors training alien flight students.

DOT. The Department of Transportation has regulations regarding the transportation of hazardous material (i.e. drone medical delivery).

FCC. The Federal Communications Commission regulations radio transmitters, the frequencies they transmit on, and the power of the transmitter. Many people don’t even pay attention to that sticker that is on the back of your controller. Take a chance to read it over some time.

DOJ. The Department of Justice enforces the Federal Aviation Statutes in Title 49 of the United States Code.  The DOJ attorneys have been involved at least twice with drone operators: (1) the Skypan case which was originally started in the federal district court in Chicago and (2) in the federal district court in Connecticut with the Haughwout case (the kid who attached a gun and later a flamethrower to a drone).

DOC. You also have the Department of Commerce with the Export Administration Regulations (“EAR”) and the State Department with the International Trafficking in Arms Regulations (“ITAR”). Bard College’s Center for the Study of the Drone published an article detailing multiple prosecutions under ITAR.

NOAA. The National Oceanic and Atmospheric Administration (NOAA) sometimes gets involved because they have jurisdiction over national sanctuaries.  NOAA created frequently asked questions 
regarding NOAA’s regulated overflight zones of West Coast National Marine Sanctuaries.

Are model aircraft and Unmanned Aircraft System (drone) operations subject to NOAA regulated overflight zones?

A. Yes. Model aircraft and Unmanned Aircraft Systems (drones) propelled by motors qualify as motorized aircraft under regulations of the sanctuaries, and therefore must adhere to sanctuary regulated overflight zones. As with traditional aircraft, UAS could operate above the sanctuaries’ minimum altitude limits, provided Federal Aviation Administration (FAA) regulations allow them to fly at such altitudes. Current FAA rules impose altitude limitations on model aircraft and other Unmanned Aircraft Systems.

NPS. National Park Service has put out statements in the past prohibiting the operation of drones in national parks. Things have changed. It is hit or miss where you can fly at the different parks. Some locations have designated areas where you can fly but you have to check. Type in the name of the national park plus  “compendium” in Google and you should find some helpful results. Additionally, you should call ahead to see if anything has changed.

DOI. The Department of the Interior has regulations and you could get in trouble with some of them. 43 CFR § 9212.1 “Unless permitted in writing by the authorized officer, it is prohibited on the public lands to: . . . (f) Resist or interfere with the efforts of firefighter(s) to extinguish a fire; (g) Enter an area which is closed by a fire prevention order[.]”

 

B. State Drone Laws

All 50! I created a state drone law directory of all 50 states.  I also included some additional resources that would be helpful from the American Legislative Exchange Counsel (ALEC), National Conference of State Legislatures, and the National League of Cities. There is also a link to a model state drone legislation from ALEC.

Want All the State Drone Laws in a PDF?

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II. International Drone Laws

There is no good reliable database of drone laws. I might create one as time goes on.

Below are the resources I have found on the internet that can assist you in finding the laws in a particular country.  I do not know how updated they are or accurate.  Use at your own risk.


Jonathan Rupprecht

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

Ultimate Drone Logbook Guide (Drone Logbook Templates, Drone Flight Logbooks, Drone Logbook PDF, etc.)

Do one of the following drone logbook statements accurate describe you?

  • “What does the FAA want me to log? I don’t want to get in trouble.”
  • “Where do I log it?”
  • “Should I do paper or electronic?”
  • “I’m confused with all the different terms.”

If any of the above describe you, you are in the right place. We are are going to dive into all of the issues surrounding drone logbooks. This article will be applicable to recreational and commercial drone operators.

 

There are primarily two types of logbooks: (1) pilot drone logbooks where the pilot logs experience and training and (2) drone aircraft/maintenance logbooks. There are two modes of logbooks: (1) paper and (2) electronic.

 

 

Table of Contents:

 

 

I. Drone Logbook Law

A. Logbook Definitions

Before we dive in, let’s discuss some terms that some of you might have heard floating around:

  • Acting pilot in command
  • Logging pilot in command,
  • Remote pilot in command,
  • Flight training,
  • Ground training,
  • Authorized Instructor,
  • Pilot,
  • Operator, etc.

 

B. Brief History of Where the Logbook Definitions Came From

Section 61.51 is the most important section for Part 61 pilots on logbooks and specifically lays out some definitions and the requirements to log that time. These specific terms and requirements were created for pilots to accurately describe their training and experience to meet eligibility requirements to obtain an airmen certificate or added rating. This was how manned aircraft pilots were doing it. Then drones came on the scene.

 

We had to fit the square in the round hole in September 2014 with the first batch of 333 exemptions were released. There continues to be a provision in the 333 exemptions that mentions that the pilot may log time in accordance with 61.51(b) to show pilot in command (“PIC”) qualifications to operate under the 333.

 

Then on August 29th, 2016, Part 101 and Part 107 became law which gave us the term remote pilot in command.That is interesting to note since for a while it was a “must” log until November 2016 where the FAA unilaterally updated 5,000+ exemptions and now they say “may” log in a manner consistent with 61.51(b).

 

So how do we sort this all out when it comes to logging since we have different terms in different parts of the regulations?

 

C. How to Make Sense of What to Use in Your Drone Logbook

Part 61 is how you get manned aircraft certificates while Part 91 is how you lose that manned aircraft certificate (by violating those operating regulations). The Section 333 exemptions adopted the standards in 61.51(b) and then later were changed to say “may.”

 

Part 107 created this neatly contained part of regulations which spells out what you need to do to obtain your remote pilot certificate and how to operate under it. You only need to pass a computer-based knowledge exam to fly unmanned aircraft so definitions are not even needed to define knowledge, experience, or training in a logbook to obtain a certificate under Part 107. The definitions only really mattered in a Part 61 & Part 91 situation where training and experience needed to be logged accurately.

 

Furthermore, 14 CFR 61.8 says, “Any action conducted pursuant to part 107 of this chapter or Subpart E of part 101 of this chapter cannot be used to meet the requirements of this part.” You cannot even use the drone time towards obtaining a Part 61 airmen certificate or rating. What a bummer. :(

 

Moreover, most of the terms are not even accurately being used! If you look carefully at the definitions, you’ll notice that almost all of them 99% of the time cannot be applied to Part 107 remote pilots under a strict reading of the legal definitions. Sure. Everyone will know what you mean but they are not legally accurate usages. But then again, in 107 world, many of these definitions don’t matter.   You could call the time flying your Star Wars tie fighter drone “Lord Vader time” because you aren’t using that time to go for a certificate or rating.

 

Here is a helpful graph of the different definitions, their location, and how a person flying under Part 101 or Part 107 should treat the definition.

 

D. Graph of Different Drone Logbook Terms

 

Term

Location in the LawHow to treat it.Definition

Operating Under Part 61 & Part 91

(Acting) Pilot in command

14 CFR 1.1

This is a term regarding ACTING as PIC. PICs acting as PIC can log it. The reason why there are different terms is because sometimes you can log PIC without being acting PIC. See Logging Pilot-In-Command Time article for AOPA.  If you are operating under 107 or 101, this does NOT even apply to you.

“Pilot in command means the person who:

(1) Has final authority and responsibility for the operation and safety of the flight;

(2) Has been designated as pilot in command before or during the flight; and

(3) Holds the appropriate category, class, and type rating, if appropriate, for the conduct of the flight.”

(Logging) Pilot in Command

14 CFR 61.51(e)

Only applicable for sport, recreational, private, commercial, or ATP when rated for the category and class of aircraft. Very rarely will the pilot have the same category and class rating as the unmanned aircraft being flown that is also in compliance with 14 CFR 61.51(j). Even if you get the rare perfect scenario, 14 CFR 61.8 says you can’t even use the PIC time for anything under Part 61 so why bother?“(e) Logging pilot-in-command flight time. (1) A sport, recreational, private, commercial, or airline transport pilot may log pilot in command flight time for flights”

Solo Flight Time

14 CFR 61.51(d)

No one can log this because you can’t get in an unmanned aircraft; otherwise, it wouldn’t be unmanned. I guess a woman could get inside one and it still be unmanned but I don’t know if the FAA will still consider that an unmanned aircraft. 😊“(d) Logging of solo flight time. Except for a student pilot performing the duties of pilot in command of an airship requiring more than one pilot flight crewmember, a pilot may log as solo flight time only that flight time when the pilot is the sole occupant of the aircraft.”

Flight Training

14 CFR 1.1

You cannot log this because once again, you are not “in flight in an aircraft[.]”“Flight training means that training, other than ground training, received from an authorized instructor in flight in an aircraft”

Ground Training

14 CFR 1.1

Only authorized instructors (see below) can log this in the logbooks of their students. But there are no truly authorized flight instructors for drones.“Ground training means that training, other than flight training, received from an authorized instructor.”

Authorized instructor

14 CFR 1.1

Here is the problem, ground and flight instructors are “authorized within the limitations of that person’s flight instructor certificate and ratings to train and issue endorsements that are required for” a list of airmen certificates and ratings, but the remote pilot certificate is NOT EVEN ON THE LIST! See 61.215 and 61.193. In other words, ground and flight instructors are not “authorized” to train remote pilots. Sure, flight instructors can train people all day long. It isn’t like the instructor is prohibited from training people, it is just the FAA is not giving its official approval of the competency of the flight instructor to give training to people seeking their remote pilot certificates. But you don’t need the official approval from the FAA for the training because the computer based knowledge exam is what the FAA has officially approved to determine aeronautical knowledge of the remote pilot applicant.“Authorized instructor means—

(i) A person who holds a ground instructor certificate issued under part 61 of this chapter and is in compliance with §61.217, when conducting ground training in accordance with the privileges and limitations of his or her ground instructor certificate;

(ii) A person who holds a flight instructor certificate issued under part 61 of this chapter and is in compliance with §61.197, when conducting ground training or flight training in accordance with the privileges and limitations of his or her flight instructor certificate; or

(iii) A person authorized by the Administrator to provide ground training or flight training under part 61, 121, 135, or 142 of this chapter when conducting ground training or flight training in accordance with that authority.”

“Pilot” vs. “Operator”

The FAA said this very well in now Cancelled Notice 8900.259, “The terms “pilot” and “operator” have historical meanings in aviation, which may have led to some confusion within the UAS community. As defined by the FAA in Title 14 of the Code of Federal Regulations (14 CFR) part 1, § 1.1, the term “operate,” “…with respect to aircraft, means use, cause to use or authorize to use aircraft, for the purpose… of air navigation including the piloting of aircraft, with or without the right of legal control….” This means that an operator is the person or entity responsible for the overall aircraft and that may include a broad range of areas, such as maintenance, general operations, specific procedures, and selecting properly trained and certified flightcrew members to fly the aircraft. The pilot in command (PIC), also defined in § 1.1, is the final authority for an individual flight. Pilots are persons appropriately trained to fly aircraft.”   Additionally, the FAA said in the preamble to the small unmanned aircraft rule, “Several commenters noted that using the term “operator” in part 107 could result in confusion. NTSB, ALPA, and TTD pointed out that “operator” is currently used to refer to a business entity and that use of that term to refer to a small UAS pilot would be inconsistent with existing usage. Transport Canada and several other commenters stated that ICAO defines the person manipulating the flight controls of a small UAS as a “remote pilot” and asked the FAA to use this terminology in order to harmonize with ICAO. Transport Canada also noted that: (1) Canada uses the same terminology as ICAO; and (2) calling an airman certificate issued under part 107 an “operator certificate” may lead to confusion with FAA regulations in part 119, which allow a business entity to obtain an operating certificate to transport people and property. ALPA and TTD suggested that the person manipulating the controls of the small UAS should be referred to as a pilot, asserting that this would be consistent with how the word pilot has traditionally been used. As pointed out by the commenters, FAA regulations currently use the term “commercial operator” to refer to a person, other than an air carrier, who engages in the transportation of persons or property for compensation or hire. Commercial operators are issued an “operating certificate” under 14 CFR part 119.67 Because other FAA regulations already use the term “operator” to refer to someone other than a small UAS pilot under part 107, the FAA agrees with commenters that use of the term “operator” in this rule could be confusing.” (emphasis mine).

This is What a 107 Remote Pilot Can Log, But Is NOT Legally Required to & Really Does Not Matter

Remote Pilot in Command14 CFR 107.12 & 107.19.Applicable only to unmanned aircraft systems operations.

Advisory Circular 107-2 at 4.2.5 says it nicely, “A person who holds a remote pilot certificate with an sUAS rating and has the final authority and responsibility for the operation and safety of an sUAS operation conducted under part 107.

 

E. Recreational Drone Operations (Part 101)

A recreational drone operator cannot accurately rely on memory to determine when to change out batteries or propellers. Additionally, memory is a poor way to recall if preventive maintenance checks were done  14 CFR Part 101.41 says:

(b) The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;

(c) The aircraft is limited to not more than 55 pounds unless otherwise certified through a design, construction, inspection, flight test, and operational safety program administered by a community-based organization.

There really only three community-based organizations I can think of operating in the US at the moment: the Academy of Model Aeronautics, Drone Users Group, and Remote Control Aerial Platform Association. There might be others but these are the ones that have been around the longest that I know of. Each of them has safety guidelines.

 

One can argue that flying a drone over and over again without logging the time the propellers have been used to be “careless and reckless” which is contrary to the Academy of Model Aeronautics Safety Code and the Drone Users Group Network Safety Guidelines. RCAPA’s general safety guidelines require that the drone be “airworthy” prior to flight. A logbook is a reliable way to determine time on properly for a drone operator to make a decision on the airworthiness of the aircraft.

 

Whether the above argument holds any water in a court of law is another discussion but this is more food for thought than listing potential arguments the FAA might throw at a recreational operator.

 

F. Commercial Drone Operators (Section 333 & Part 107). 

1 . Section 333 Operators

The FAA requires that commercial operators who have 333 exemptions and “blanket” COA’s to file monthly reports. Additionally, those commercial operators operating under the 333 are required to log their flights according to 14 CFR 61.51(b) which says:

(b) Logbook entries. For the purposes of meeting the requirements of paragraph (a) of this section, each person must enter the following information for each flight or lesson logged:

(1) General—

(i) Date.

(ii) Total flight time or lesson time.

(iii) Location where the aircraft departed and arrived, or for lessons in a flight simulator or flight training device, the location where the lesson occurred.

(iv) Type and identification of aircraft, flight simulator, flight training device, or aviation training device, as appropriate.

(v) The name of a safety pilot, if required by §91.109 of this chapter.

(2) Type of pilot experience or training—

(i) Solo.

(ii) Pilot in command.

(iii) Second in command.

(iv) Flight and ground training received from an authorized instructor.

(v) Training received in a flight simulator, flight training device, or aviation training device from an authorized instructor.

(3) Conditions of flight—

(i) Day or night.

(ii) Actual instrument.

(iii) Simulated instrument conditions in flight, a flight simulator, flight training device, or aviation training device.

(iv) Use of night vision goggles in an aircraft in flight, in a flight simulator, or in a flight training device.

2. Part 107

Section 107.49  says:

Prior to flight, the remote pilot in command must . . .

 

(c) Ensure that all control links between ground control station and the small unmanned aircraft are working properly;

(d) If the small unmanned aircraft is powered, ensure that there is enough available power for the small unmanned aircraft system to operate for the intended operational time; and

(e) Ensure that any object attached or carried by the small unmanned aircraft is secure and does not adversely affect the flight characteristics or controllability of the aircraft.

How can a remote pilot comply with 107.49(c)-(e) if the remote pilot is not logging aircraft problems and maintenance? The FAA said it nicely in Advisory Circular 107-2, “Maintenance and inspection recordkeeping provides retrievable empirical evidence of vital safety assessment data defining the condition of safety-critical systems and components supporting the decision to launch.”

 

But here is the problem with drones, they are aircraft, but the drone manufacturers don’t treat them like aircraft. We don’t have any warnings being issued on certain parts like we have with the airworthiness directives in manned aviation. Yes, GoPro did a recall because of their batteries which is a good start. The technology changes so much that the mean time between failures is not known for many parts of the drones. People just buy the Phantom 4 before the Phantom 2 or 3 broke. No one is sharing the data of the aircraft failures. Why would you want to and be called an idiot on the internet? So really any preventative maintenance being done, while appearing safe, is really going to be just best guesses.

 

Section 107.7 says, “A remote pilot in command, owner, or person manipulating the flight controls of a small unmanned aircraft system must, upon request, make available to the Administrator: . . .(2) Any other document, record, or report required to be kept under the regulations of this chapter.”

 

If you study Part 107 carefully, you’ll notice no log books are required to be kept; however, if you obtain a Part 107 waiver, such as a night waiver, the waiver requires the responsible person to have documented night training the remote pilot in command and visual observer have received and that documentation must be available upon request from the FAA. This is what section 107.7 means by “Any other document, record, or report required to be kept under the regulations of this chapter.”

 

II. Reasons Why You Should Have a Drone Logbook

Legal Compliance. You might need to document training received for some waivers. Additionally, you might want to log aircraft maintenance to prove that you attempted to maintain the aircraft in an airworthy manner.

 

Marketing. Showing a completed logbook to a potential customer is a great marketing point. Like the old adage, “A picture is worth a thousand words,” a good logbook is worth a thousand flights. You can quickly demonstrate your flight experience by flipping through the pages. Furthermore, a well-kept and orderly logbook gives the impression that you are a professional.

 

Insurance. When you apply for insurance, they will ask you to fill out a form that is going to ask for all sorts of information. A logbook will assist you in filling out the form so you can receive the most accurate quote.

 

Maintenance. You cannot accurately rely on your memory to recall if you did something or not. Has that problem you observed gone away? Is it getting worse? Logging helps you notice trends and also allows you to rule out certain things when hunting for the cause of a problem.

 

III. Paper vs. Electronic Drone Logbooks 

  • Paper Drone Logbooks
    • If you are operating under a Section 333, 14 C.F.R. § 61.51(i) says, “Persons must present their pilot certificate, medical certificate, logbook, or any other record required by this part for inspection upon a reasonable request by” the FAA, an authorized representative from the National Transportation Safety Board, or any Federal, State, or local law enforcement officer. If your electronic logbook is on your device, do you really want to give law enforcement or the FAA your device? Furthermore, how are you to get the data off that device?Fixed costs (unless you go through paper like crazy). A paper log book can be easily inspected by law enforcement officials without them prying into your privacy.
    • Fixed costs (unless you go through paper like crazy)
    • No battery, no software, no firmware, no bad cell reception.
    • If you are investigated, whoever is investigating is going to have to obtain the logbook itself as opposed to just subpoenaing the electronic logbook company to turn over all your info.
    • No data theft.
    • Some countries require paper logbooks.
    • It is easier to allow a potential client flip through the pages than reading on your small cell phone with greasy smudge stains.
    • Harder to “cook the books” with paper.
    • Easier to transfer to another person who purchases a drone from you.
  • Electronic Drone Logbooks or Drone Logbook Apps
    • Totaling up the numbers is soooo much easier.
    • Accurate total numbers.
    • Less time spent on managing the logbooks.
    • You can customize these as you need.
    • Some plans have monthly fees.
    • The data is less likely to be lost compared to a paper copy which has to deal with fire, flood, hurricanes, bad memories, etc.
    • You can have data breaches.
    • Law enforcement or personal injury attorney can subpoena the records from the database.

IV. What Drone Logbooks Are on the Market?

A. Drone Logbooks Apps

Here are the more popular electronic drone logbooks. Some allow you to log pilot experience as well as aircraft time and maintenance. Most have a basic free version and the availability to add plans with extra features for a price.

B. Drone Flight Logbook Templates, Excel, or PDF

Basically, everything I saw on the internet looked bad so I decided to allow people to download the template of the Drone Operator Logbook. If you like this logbook, you can just buy the paperback version of it on Amazon (link below) and save on printing since Amazon sells mine for around $10.

 

To download the logbook template, simply sign up for the newsletter with your email and it should be sent to your email.

C. Paper Drone Logbooks

Here are the more popular paper drone logbooks.

V. Review of the 3 Most Popular Paper Drone Logbooks on the Market

A.  ASA’s The Standard UAS Operator Logbook

ASA's The Standard UAS Operator Logbook

Pros:

  • Compact.
  • Hardcover so you can easily write in it.
  • You could use it with a Section 333 exemption because it is 61.51(b) compatible.

Cons:

  • Some of the columns don’t make sense. For example, there is a “to” category and a “from” category.  We are flying drones here guys. We don’t fly these anywhere else but right where we are standing. Another example is that there is a column for rotor,  fixed wing, and a blank column. What in the world would you put in that blank column? Powered lift or lighter than air?  Another column says instrument time.
  • Small so you can’t write a lot of information in it.

B.  UAS Pilot Log Expanded Edition

UAS Pilot Log Expanded EditionPros

  • It has this cool graph on the side.  This is great for sketching things out. But you could just get regular paper and sketch things out if you need.
  • There is an “eh ok” checklist built into every page.
  • The gutter in between the pages might allow for it to be hole punched.

Cons

  • It does not have rows or columns for the 61.51(b) elements. While 61.51 isn’t a standard for 107 or 101 flyers, if you choose to adopt it, you’ll have to remember to put things in.
  • There are not many columns to log different types of time.
  • It has a pre-flight checklist but no post-flight checklist.

C.  Drone Operator’s Logbook

Brief note on the differences between V 1.2 and V 1.3 of my logbook. The text in the instruction up front was updated to reflect the changes since Part 107 is now law. Also, I changed the top quick notes section of each page from “FAR Required” to “61.51(b)” and “333 Required” to Section 333 to reflect the FAA’s new “may” language in the exemptions. I added more places to log battery cycles in the bottom from 6 to now 12.
 drone-logbook-example
Pros:
  • 61.51(b) elements are included in case you want to adopt this standard.
  • You can log battery discharges right on each page.
  • There is a TON of room on each page. You can easily log all your notes. Since it is also large, you can get regular writing paper and sketch out the job sites and then staple them to the page where you logged the flight.
  • This logbook is large enough to also double as a maintenance logbook for your aircraft. When you make any repairs, staple in the receipts and make detailed so you can better diagnose problems or obtain a higher resell value for the aircraft because you can prove what was done to it. I would suggest if you want to use it as a maintenance logbook, that you buy a separate logbook just for the aircraft in case you fly multiple aircraft.
  • Each page has a “cheat sheet” of things to jog your memory on what you might want to log on each line.
Cons:
  • It is a softcover so writing might be difficult.
  • It is the largest of the logbooks (but you get a lot of room to write). It might be difficult to fit into a plastic sleeve that would fit in a 3 ring binder. However, I think the way around this is to just buy one of the plastic 3 ring expansion envelopes like this one.
  • Some have complained that the gutter is too small which makes it difficult to hole punch the logbook.

VI. How to Fill Out My Drone Logbook.

 

drone-logbook-example

Starting at the top, there are two rows with asterisks which are references for the Type of Flight and Notes sections. There is also a handy time conversion.

DATE: The date of the flight.

 

AIRCRAFT/MAKE & MODEL: Put the make and model of the aircraft.

 

IDENT/Exemption #: In this column, you can put the registration of the aircraft. You can also put in an exemption number if you want.

 

LOCATION. Blanket COA reporting must list the city/town, state, and coordinates in decimal, minute, second format, (DD, MM, SS.S) N (DD, MM, SS.S) W, in the COA reports. Tip: Open up the iPhone compass app and it will display the GPS coordinates in the proper format at the bottom of the compass. 107 remote pilots or 101 recreational flyers are not required to log this but may adopt to.

 

BLANK COLUMN. If you are operating under your 333 exemption still, track your plan of activities (POA) submissions and NOTAM filing. You can also track invoice number, the pre & post voltage of batteries, takeoff or landing damage, equipment malfunctions, or lost link events.

 

TYPE OF FLIGHT. 61.51(b) lists terms like solo/pilot in command/flight, ground training, training received, or simulator training received. Notice the * reminds you to look at the top of the page for suggestions.  333 exemptions allow logging of (training/ proficiency/ experience). Optional entries could be ($/testing/recreation).

 

NOTES.  Here are some suggestions: memory cards [1,2,3], batteries [A,B,C], the name of the visual observer (“VO”), NOTAM filed, the ID of the COA you are flying under, did you file the plan of activities?, Invoice #, pre/post voltage on the batteries, and SQWK (which means you documented in the SQWK section the problems and fixes).If you are a Section 333 operator and you experienced takeoff or landing damage, equipment malfunctions, or lost link events, you MUST report this to the FAA via COA reporting.

 

D/N. day or night?  # of TO/L. Number of take-offs and landings (hopefully they are the same number :)  COA reports want “Number of flights (per location, per aircraft)”

 

Total Flight. Use a new battery for each line and enter the time after each flight. A convenient list of numbers is located on each page to help determine the most accurate entry. .1=6s  .2=12s  .3=18s .4=24s .5=30s .6=36s .7=42s .8=48s .9=54s  For each battery, make sure you log cycles at the bottom with tick marks. This way you can keep track of when to fully discharge the drone battery based upon the manufacturer’s recommendations.

 

SQWK. Squawk section where you list any issues you discovered during flight. Instead of putting all of this in the notes section, just write “sqwk” and you’ll know to look at the bottom. In that section, You look for the number corresponding to the line number because all of the squawks go into the bottom box.

 

You can keep track of firmware updates by listing them below the battery section.

 

When you are finished with a page, add all the numbers up, sign the page, and cut off the corner of the page. This makes it easy to find the most current tab using your thumb.

 

Conclusion

I would highly suggest you do not just go and do nothing after reading this. You should log your flights so as to track any maintenance that needs doing as well as collecting data to know when you need to change our certain parts or the entire drone.

Get a logbook, a piece of paper, a word document, one of the logbooks mentioned above, ANYTHING!  Just do it now. Don’t push it off. You won’t do. Start doing something. Today.

Stay safe. :)


Jonathan Rupprecht

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

FAA FAR Part 107 Frequently Asked Questions (FAQs)

 


Jonathan Rupprecht

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

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

Update: On August 7, 2017, it was reported by the Military Times that  “The Pentagon has signed off on a new policy that will allow military bases to shoot down private or commercial drones that are deemed a threat[.]” This is what was authorized in the National Defense Authorization Act of 2017 which was  passed in December 2016. See below for my discussion on it. The House version of the proposed NDAA of 2018 seeks to expand the use of force to those locations that are “part of a Major Range and Test Facility Base (as defined in section 196(i) of this title).”


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
  • Sonic – Fox News has a article on how this technology could counter drones.
  • 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.

The House version of the proposed NDAA of 2018 seeks to expand the use of force to those locations that are “part of a Major Range and Test Facility Base (as defined in section 196(i) of this title).”

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.

The New York Times reported that the Trump Administration has proposed some language to make much of the counter UAS technology decriminalized. The actual text of the proposal is at the end of the article.

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.

 

Actual Text of White’s House NDAA C-UAS Proposal

 

SEC. __. OFFICIAL ACTIONS TO ADDRESS THREATS POSED BY UNMANNED AIRCRAFT SYSTEMS TO PUBLIC SAFETY OR HOMELAND SECURITY.

 (a) AUTHORITY.—Notwithstanding any provision of title 18, United States Code, the head of an Executive department or agency, while respecting privacy, civil rights, and civil liberties, including with regard to the testing of any equipment and the interception or acquisition of communications, may take, and may authorize a covered person to take, the actions described in subsection (b), to the extent otherwise in accordance with law.

 

 (b) ACTIONS DESCRIBED.—The actions described in this subsection are as follows:

 (1) Detect, identify, monitor, or track, without prior consent, an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo, to evaluate whether it poses a threat to the safety or security of a covered facility, location, or installation or a covered operation, including by means of interception of or other access to wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo.

(2) Redirect, disable, disrupt control of, exercise control of, seize, or confiscate, without prior consent, an unmanned aircraft system, unmanned aircraft,

or unmanned aircraft’s attached system, payload, or cargo that poses a threat to the safety or security of a covered facility, location, or installation or a covered operation, including by intercepting, substituting, or disrupting wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo.

(3) Use reasonable force to disable, disrupt, damage, or destroy an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that poses a threat to the safety or security of a covered facility, location, or installation or a covered operation.

(4) Conduct research, testing, training on, and evaluation of any equipment, including any electronic equipment, to determine its capability and utility to enable any of the actions described in paragraphs (1) through (3).

(c) FORFEITURE.—An unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo that is disabled, disrupted, seized, controlled, confiscated, damaged, or destroyed pursuant to an action described in subsection (b) is subject to forfeiture to the United States.

 

(d) GOVERNMENT-WIDE POLICY.—The actions described in subsections (b) and (c) may only be taken following the issuance of Federal Government-wide policy prescribing roles and responsibilities for implementing this section. The Federal Government-wide policy shall be developed in consultation with appropriate departments and agencies, including the Department of Transportation to ensure the safety and efficiency of the National Airspace System, and shall—

(1) respect privacy, civil rights, and civil liberties, including with regard tothe testing of any equipment and the interception or acquisition of communications, by, among other things, ensuring that information is intercepted, acquired, accessed, or retained pursuant to subsections (b) only where and for so long as is necessary to support one or more of the department’s or agency’s authorized functions and is accessible only to covered persons with a need to know the information;

(2) prescribe roles and processes, as appropriate, to ensure that departments and agencies take the actions described in subsection (b) in compliance with applicable law and regulation regarding the management of the radio frequency spectrum;

(3) consider each department’s and agency’s responsibilities for the safety or security of its facilities, locations, installations, and operations in the United States; and

(4) develop standards and procedures for heads of departments and agencies to designate a covered facility, location, or installation, a covered operation, or a covered person, which shall ensure that only individuals with appropriate training and acting subject to Federal Government oversight are designated as covered persons.

(e) IMPLEMENTATION.—

(1) REGULATIONS; POLICIES, PROCEDURES, OR PLANS.—Consistent with any limitations or specifications in the Federal Government-wide policy issued pursuant to subsection (d), the head of a department or agency—

(A) may prescribe regulations to carry out this section; and

(B) shall issue policies, procedures, or plans to carry out this section.

(2) COORDINATION.—Regulations, policies, procedures, or plans issued under this subsection shall develop the actions in subsection (b) in coordination with the Secretary of Transportation.

(3) PRIVACY REVIEW.—Any regulations, policies, procedures, or plans issued pursuant to this section that would result in the monitoring, interception, or other access to wire, oral, electronic, or radio communications or signals transmitted to or by an unmanned aircraft system, unmanned aircraft, or unmanned aircraft’s attached system, payload, or cargo shall be reviewed consistent with section 522 of the Consolidated Appropriations Act, 2005 (42 U.S.C. 2000ee-2), to ensure that the regulations, policies, procedures, or plans appropriately protect privacy and civil liberties.

(f) JURISDICTION.—Notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim, including for money damages, against a covered person arising from any authorized action described in subsection (b).

(g) RELATIONSHIP TO OTHER LAWS.—Nothing in this section shall be construed to—

(1) restrict the authority of the United States Government, a member of the Armed Forces, or a Federal officer, employee, agent, or contractor from performing any action described in subsection (b) or (c) that is in accordance with law;

(2) affect the exercise of authority granted by section 130i of title 10, United States Code, and section 4510 of the Atomic Energy Defense Act (50 U.S.C. 2661); or

(3) restrict or limit the authority of the Federal Aviation Administration under 18 title 49, United States Code, to manage the safe and efficient use of the National Airspace System.

(h) DISCLOSURE.—Information pertaining to the technology used pursuant to this section, and any regulations, policies, procedures, and plans issued under this section, shall be exempt from disclosure under section 552(b)(3) of title 5, United States Code, and exempt from disclosure under any State or local law requiring the disclosure of information.

 

(i) DEFINITIONS.—In this section:

(1) The term “covered facility, location, or installation” means any non- mobile asset in the United States that is designated by the head of a department or agency in accordance with standards and procedures established under subsection (d).

(2) The term “covered operation” means—

(A) any operation that is conducted in the United States by a member of the Armed Forces or a Federal officer, employee, agent, or contractor, that is important to public safety, law enforcement, or national or homeland security, and is designated by the head of a department or agency, consistent with the Federal Government-wide policy issued pursuant to subsection (d); and

(B) may include, but is not limited to, search and rescue operations; medical evacuations; wildland firefighting; patrol and detection monitoring of the United States border; a National Security Special Event or Special Event Assessment Ratings event; a fugitive apprehension operation or law enforcement investigation; a prisoner detention, correctional, or related operation; securing an authorized vessel, whether moored or underway; authorized protection of a person; transportation of special nuclear materials; or a security, emergency response, or military training, testing, or operation.

(3) The term “covered person” means any member of the Armed Forces, a Federal officer, employee, agent, or contractor, or any other individual that is designated by the head of a department or agency in accordance with standards and procedures established under subsection (d), acting within their officially designated capacity.

(4) The terms “intercept” and “wire, oral, electronic, or radio communications” have the meaning given those terms in section 2510 of title 18.

(5) The terms “unmanned aircraft” and “unmanned aircraft system” have the meaning given those terms in section 331 of the FAA Modernization and Reform Act 7 of 2012 (49 U.S.C. 40101 note).

(6) The term “United States” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any possessions, territorial seas, or navigable waters of the United States.

(j) SUNSET.—This section shall cease to have effect on December 31, 2022.

 

Section-by-Section Analysis of Proposed Legislation Regarding Official Actions to Address

Threats Posed by Unmanned Aircraft Systems to Public Safety or Homeland Security

Unmanned aircraft systems (UAS) are commercially available, challenging to

detect and mitigate, and capable of carrying harmful payloads and performing

surveillance while evading traditional ground security measures. However, some

of the most promising technical countermeasures for detecting and mitigating UAS

may be construed to be illegal under certain laws that were passed when UAS were

unforeseen. These laws include statutes governing electronic communications,

access to protected computers, and interference with civil aircraft.

Potential liability under such laws restricts innovation, evaluation, and operational

use of technical countermeasures that can address the unique public safety and

homeland security threats posed by UAS while minimizing collateral risk. The

proposed legislation provides a savings clause under title 18, United States Code,

for authorized development or use of such countermeasures.

This legislation provides that development or use of countermeasures against UAS

must be pursuant to a coordinated, government-wide policy. A coordinated

approach is critical to ensure that development and use of technical

countermeasures for detecting and mitigating UAS is consistent with the safety and

efficiency of the National Airspace System (NAS), the protection of privacy, civil

rights, and civil liberties, and other government-wide equities. Indeed, multiple

departments and agencies have responsibility for the safety or security of facilities,

locations, installations, and operations that may be vulnerable to threats posed by

UAS, including the Department of Homeland Security, the Department of

Transportation, the Department of Justice, the Department of Defense, the

Department of Energy, the Department of Agriculture, the Department of the

Interior, and the Office of the Director of National Intelligence. Multiple

departments and agencies also perform important operations that may be vulnerable

to threats posed by UAS, including but not limited to: search and rescue operations;

medical evacuations; wildland firefighting; patrol and detection monitoring of the

United States border; National Security Special Events and Special Event

Assessment Ratings events; fugitive apprehension operations and law enforcement

investigations; prisoner detention, correctional, and related operations; securing

authorized vessels, whether moored or underway; authorized protection of a person

or persons; transportation of special nuclear materials; and security, emergency

response, or military training and operations. The proposed legislation helps to

ensure that authorized members of the Armed Forces and Federal officers,

employees, contractors, and other appropriate persons designated by the heads of

the executive department and agencies consistent with the requirements of the

government-wide policy required by the proposed legislation will not face penalties

for protecting those equities in a way that is consistent with other applicable law,

including the U.S. Constitution.

 

Subsection (a) sets forth the savings clause discussed above. Though many

provisions in Title 18 may conflict with authorized Counter-UAS activities, certain

statutes are especially problematic. For example, sections 2510–2522 of title 18,

United States Code (the Wiretap Act), among other things, subject any person who

intentionally intercepts the “contents” of electronic communications to fines,

imprisonment, and/or civil liability, and sections 3121–3127 of title 18, United

States Code (the Pen/Trap Statute), among other things, generally prohibit the

installation or use of a device to collect “non-content” information of electronic

communications. In addition, section 1030 of title 18, United States Code (the

Computer Fraud and Abuse Act) prohibits unauthorized access to and use of

“protected computers.” These statutes might be construed to prohibit access to or

interception of the telemetry, signaling information, or other communications of

UAS. Furthermore, any attempt to interfere with the flight of UAS that pose a

threat to covered facilities, locations and installations or covered operations may

conflict with section 32 of title 18, United States Code (the Aircraft Sabotage Act),

which among other things, imposes fines and criminal penalties on anyone who

“damages, destroys, disables, or wrecks any aircraft in the special aircraft

jurisdiction of the United States.” In the event of unanticipated conflicts with other

statutes, and in order to avoid criminalizing critically important activities by

government officials that are consistent with the U.S. Constitution, the savings

clause also refers generally to “any provision of title 18, United States Code.”

Congress has previously recognized the importance of ensuring that federal

criminal laws in Title 18 do not inadvertently blunt the development or use of UAS

countermeasures. The National Defense Authorization Act (NDAA) for Fiscal Year

(FY) 2017 contains two sections (Sec. 1697—codified at section 130i of title 10,

U.S. Code—and Sec. 3112) authorizing the Department of Defense, and the

Department of Energy, respectively, to protect certain facilities and assets from

threats posed by UAS. Both sections authorize such activities “[n]otwithstanding

any provision of title 18.”

 

Subsection (b) describes the specific actions referenced in subsection (a), which

relate to the UAS context. The proposed legislation would generally allow

research, testing, training on, and evaluating technical means for countering UAS,

as well as the use of technical means to detect, identify, monitor, and track a UAS

to evaluate whether it poses a threat to the safety or security of covered facilities,

locations, and installations or covered operations. With respect to the use of

technical means to re-direct, disable, disrupt control of, exercise control of, seize,

or confiscate UAS, the proposed legislation would allow such actions in response

to a UAS posing a threat to the safety or security of covered facilities, locations,

and installations or covered operations. Subsection (b)(3) of the proposed

legislation would allow the use of reasonable force to disable, disrupt, damage or

destroy a UAS posing a threat to the safety or security of covered facilities,

locations, and installations or covered operations.

 

Subsection (c) authorizes, but does not require, civil forfeiture of UAS that are

subject to authorized actions described in subsection (b).

 

Subsection (d) provides that the actions in subsections (b) and (c) may be taken

only after the issuance of government-wide policy prescribing roles and

responsibilities for implementing this section. That policy would be developed in

consultation with appropriate departments and agencies, including the Secretary of

Transportation to ensure the safety and efficiency of the NAS. Requiring the

development of government-wide policy ensures that departments and agencies

execute UAS countermeasures in a coordinated and effective manner, and that such

activities are subject to appropriate oversight and control. A whole-of-government  framework also protects the integrity of the NAS, while permitting departments and

agencies to defend covered facilities and operations from malicious uses of UAS.

The proposed legislation requires the government-wide policy to (1) respect

privacy, civil rights and civil liberties; (2) prescribe roles and processes, as

appropriate, to ensure compliance with applicable law and regulations concerning

the management of the radio frequency spectrum; (3) consider each Federal

department and agency’s responsibilities for the safety or security of its facilities

and operations; and (4) develop standards and procedures with respect to

designations of covered facilities, locations, installations, covered operations, and

covered persons, including by requiring that only that only individuals with

appropriate training and acting subject to Federal Government oversight may be

designated as such.

 

Subsection (e) provides that departments and agencies must issue policies,

procedures, or plans to carry out this section, consistent with any limitations or

specifications in the government-wide policy. Departments and agencies may also

issue regulations to carry out this section. Subsection (e)(2) provides that

departments and agencies must develop the actions issued under this subsection in

coordination with the Secretary of Transportation. This provision intends to foster

airspace safety by ensuring that departments and agencies engage with the

Secretary of Transportation early on to identify and mitigate any potential collateral

impacts on the NAS. In the NDAA for FY 2017, Congress similarly recognized the

importance of preserving a coordinating role for the Secretary of Transportation in

the development of the actions for countering UAS. The term “coordination” in

subsection (e)(2) means that the heads of departments and agencies will seek the

views, information, and advice of the Secretary of Transportation concerning any

potential effects on the NAS as department and agencies develop the types of

actions to be taken and the circumstances of execution under this provision. The

Secretary of Transportation will provide such views, information, and advice in a

reasonably prompt manner. If the Secretary of Transportation notifies the head of

a department or agency that taking the proposed actions would affect aviation safety

or NAS operations, the head of the department or agency concerned will work

collaboratively with the Secretary of Transportation to consider proposed actions

to mitigate or otherwise address effects on aviation safety, air navigation services,

and NAS efficiency—consistent with national or homeland security and law

enforcement requirements—prior to finalizing the types of actions authorized to be

taken under this provision.

 

Subsection (e)(3) requires internal review of regulations, policies, procedures, or

plans that would result in the monitoring, interception or other access to wire or

electronic communications.

 

Subsection (f) provides that no court shall have jurisdiction to hear causes or claims,

including for money damages, against a federal officer, employee, agent or

contractor arising from any authorized actions described in subsections (b). This

provision serves to protect individuals taking authorized actions described in

subsections (b) from damages claims and official-capacity claims.

Subsection (g) clarifies that the proposed legislation does not affect Federal

agencies’ authority to continue testing and/or using technical means for countering

UAS that comport with title 18, United States Code, and other applicable law,

including the aforementioned sections of the NDAA for FY 2017. In addition, the

proposed legislation clarifies that it does not restrict or limit the authority of the

Federal Aviation Administration, which remains the exclusive Federal agency with

authority over the nation’s airspace and authority to manage the safe and efficient

use of the NAS.

 

Subsection (h) provides exemptions from disclosure under State and Federal law

for information relating to the technology used pursuant to the proposed legislation,

and specific policies, procedures, or plans issued thereunder.

Subsection (i) clarifies that “unmanned aircraft” and “unmanned aircraft system”

have the meanings given those terms by the FAA Modernization and Reform Act

of 2012. The term “covered facilities, locations and installations” is defined to

mean non-mobile assets in the United States that are designated by the respective

agency head pursuant to standards and procedures developed in government-wide

policy. The term “covered person” is defined to mean any member of the Armed

Forces, a Federal officer, employee, agent, or contractor, or any other individual

that is designated by the respective department or agency head in accordance with

the standards and procedures established in government-wide policy. The term

“covered operations” is defined to mean governmental operations that are

determined by an agency head, consistent with government-wide policy, to be

important to public safety, law enforcement, or national or homeland security.

Subjection (j) provides that the legislation ceases to have effect on December 31,

2022.


Jonathan Rupprecht

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

11 Big Problems with the FAA’s Mandatory Drone Registration

 NOTE: The D.C. Circuit Court of Appeals ruled on the drone registration requirements. See my page on the Taylor v. FAA case for the ruling. 

 

  • 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.

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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)

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