Drone regulations: why the FAA’s long delays are no surprise

Drones are everywhere, and no one knows what exactly to do about it.

In the last year or so, unmanned aerial systems (UASs) have gone from the province of the craft and hobby crowd (and, yes, the military, though Predators and their relatives hardly belong in the same category and certainly don’t belong in the same blog post) to the stuff of headlines as major companies try to leverage them for competitive advantage. Aerial delivery is one of the more brute-force applications of this flexible new technology, and anecdotal evidence suggests that drones are finding a natural home in a wide variety of less glamorous applications where they offer a cheaper, more accurate, and far safer alternative to humans.

But these new roles pose unique challenges for a regulatory system which is singularly unsuited to deal with them. The Federal Aviation Administration (FAA) has spent its institutional lifetime developing rules and regulations for machines which are made of thousands of pounds of whirling metal and explosive fuel. They are huge capital investments available only to companies with sufficient resources and a bureaucracy up to the task of handling heavy government oversight. Whether a drone is ninety feet up examining the rafters of an old warehouse, filming a precise “walk-through” of a house for sale, gathering detailed data on wildlife, or patrolling a perimeter as a mobile security guard, they very seldom fit neatly into the existing FAA regulatory framework. As a result, the FAA has been inundated with requests for exemptions from various rules and regulations which cannot or should not apply to UASs.

To the FAA’s credit, exemption requests under Section 333 of the FAA Modernization and Reform Act of 2012 have seen their waiting time drop from months to mere days as it has become apparent that most of the rules governing commercial flight operations are simply absurd when applied to UASs – it’s tough to keep the flight manual on board when it’s heavier than the vehicle itself. In addition, the FAA has granted a “blanket” Certificate of Waiver or Authorization (COA) which allows exempt UAS operators to conduct flight operations subject to certain restrictions without asking the FAA for permission for each individual flight. But this is neither a sufficient solution to the issue, nor the mandate handed down by Congress in 2012.

In February 2015, the FAA published proposed rules which would simplify and streamline the process for businesses to get their drones in the air. The rules limit the range of permissible operations, the operational capacity of the UASs themselves, and place certain requirements in place for their operators. Among other things, they would require:

  • Maximum UAS weight of 55 lbs.;
  • Maximum UAS speed of 100 m.p.h;
  • Maximum altitude of 500 ft.;
  • Operations during daylight only, within the visual line-of-sight of the operator;
  • Permission may be required if the UAS will be operating in Class B, C, D, or E airspace (mainly the areas around airports);
  • Operators would be subject to licensing requirements, including a knowledge test every two years.

Additionally, the FAA asked the public to comment on the creation of a “micro” UAS classification, which would be the first step towards a more flexible regulatory framework for UASs under 4.4 lbs. You can read the FAA’s more detailed overview here: http://www.faa.gov/regulations_policies/rulemaking/media/021515_sUAS_Summary.pdf.

The comment period is now closed for the proposed UAS rules, and the most recent signals from the FAA suggest that it might be the summer of 2016 before a final rule is published. For the time being, businesses will have to keep applying for an exemption under Section 333 before they can get airborne. If your business wants to use drones, the Royse Law Firm offers experienced counsel who can get you started – the sooner your application is submitted, the sooner you’ll be flying!

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Roger Royse

Roger Royse, the founder of the Royse Law Firm, works with companies ranging from newly formed tech startups to publicly traded multinationals in a variety of industries. Roger regularly advises on complex tax structuring, high stakes business negotiations and large international financial transactions. Practicing business and tax law since 1984, Roger’s background includes work with prominent San Francisco Bay area law firms, as well as Milbank, Tweed, Hadley and McCloy in New York City.
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