by Vincent J. Allen
Advances in technology have resulted in an explosion in the use of small drones in recent years. In 2012, Congress passed the FAA Modernization and Reform Act, which required the FAA to implement regulations to fully regulate commercial drone usage by September 30, 2015. While the FAA began conducting drone safety tests shortly after the Act was signed into law, it was only recently that the first set of FAA regulations went into effect. Prior to Part 107 of the Federal Aviation Regulations becoming effective on August 29, 2016, the use of a drone for commercial purposes required a special exemption referred to as a “Section 333 Exemption”. The process to get a Section 333 Exemption is time consuming and required the use of a licensed pilot.
Part 107 makes it much easier for individuals and businesses to fly drones for commercial purposes. Notably, a manned aircraft pilot’s license is no longer required. To act as pilot in command in a commercial drone operation, one must pass a written test and submit an application to the FAA for a remote pilot certificate. Pilots already licensed to fly manned aircraft need only take an online course and submit an application.
There are still restrictions, however, on the size of the drone and the types of operations that can be conducted without obtaining an exemption or waiver. Part 107 requires the drone to weigh less than 55 pounds. Operations are limited to visual line-of-sight (VLOS) only, meaning that the remote pilot in command must keep the aircraft within sight, unaided by any device other than corrective lenses of the pilot. This prevents the use of first person view (FPV) technology that allows the pilot to see a camera view from the aircraft on a screen or by using virtual reality goggles that are wirelessly connected to the aircraft camera.
Companies like Amazon and Google, which have been considering delivery by drones, have criticized the rules for not being comprehensive enough to allow FPV technology, the use of which is required for drone delivery to work. This also restricts the use in news-gathering and film making, but it does allow the reporter or film crew to obtain footage as long as visual contact can be maintained with the aircraft.
Part 107 also prohibits drones from being operated above anyone who is not directly participating in the operation. Nor can a drone be operated under a covered structure. A drone may only be operated during the day and at less than 400 feet above the ground. Operating within certain airspace, particularly airspace within five miles of an airport, requires the remote pilot to provide air traffic control with details of the proposed operation. Practically speaking, although not technically required, operating within three miles of an airport necessitates the remote pilot to be in two-way radio communication with the controller. Waivers of almost all Part 107 restrictions above can be obtained from the FAA when the pilot can demonstrate that the operation can be performed safely. To date, the FAA has granted 269 waivers, the vast majority of which have been for the purpose of allowing flight at night. There have only been a few waivers granted to allow use of FPV in lieu of maintaining visual contact with the aircraft. However, it is likely that the FAA will implement additional rules in the future to allow the use of FPV when appropriate safety precautions are demonstrated.
Temporary flight restrictions (TFRs) can be imposed by the FAA on all aircraft, preventing any operations in certain areas. While TFRs should only be implemented for safety reasons, some have argued that the FAA has improperly imposed TFRs in certain locations to restrict media access. In one case, the FAA ultimately allowed the media to use a drone to obtain footage within a TFR after initially rejecting the request. The improper use of TFRs could in some cases be considered a violation of the First Amendment.
The new regulations of Part 107 open the door significantly for drone journalism and filmmaking. It will allow the remote pilot to become certified without learning to fly a manned aircraft and without significant expense. Drones are relatively inexpensive as well, making the barriers to entry very low compared to obtaining aerial footage with manned aircraft. Even the high end professional-grade DJI Inspire 2 phantom used for aerial cinematography work can be purchased fully equipped for $6,000.
Vincent J. Allen is a partner at Carstens & Cahoon, an intellectual property law boutique, and can be reached at firstname.lastname@example.org.