I Can Fly it For Fun–Why Not For Profit? Proposed FAA Rules For Unmanned Aerial Vehicles

Every week, it seems you hear another business is using unmanned aerial vehicles. So why are you, or your company, still grounded? That could change soon.

In the Federal Aviation Administration (FAA) Modernization and Reform Act of 2012, Congress directed the Secretary of Transportation to determine whether "certain unmanned aircraft systems may operate safely in the national airspace system" (Section 333) and, if so, to propose rules to govern those systems by September 2015. As technology and the public appetite for unmanned aircraft outpaced its efforts to craft a workable set of regulations, the FAA felt compelled to issue a blanket moratorium on the use of all unmanned aircraft systems (UAS) except for hobbyists governed by a ceiling of 400 feet and other restrictions. The FAA is still enforcing this moratorium on all UAS operations, especially those intended for commercial purposes. Until now, any non-recreational UAS use had to be approved by way of a special airworthiness certificate, exemptions or certificates of waiver or authorization. While these are not impossible to obtain, they are based on the proposition that UAS operations are governed under the same rules as manned aircraft. The applicant must demonstrate why their proposed use of UAS should be exempt from those rules and how they will provide the same level of safety for the public required of manned aircraft. The FAA website currently lists just under fifty exemptions granted for commercial, non-hobbyist or non-recreational uses.

In an attempt to move towards a less expensive and time consuming approval process, the FAA decided not to address the entire universe of possible UAS operations, but to begin small—55 lbs. and under, to be exact—referring to this category as "sUAS" or small unmanned aerial vehicle systems. To that end, on February 23, 2015, the FAA published proposed rules aimed to authorize the use of sUAS in the national airspace for all purposes.

There are many compelling and practical reasons why sUAS should not be subject to the same rules as manned aircraft. The FAA appears to recognize this and, as reflected by the proposed rules, the FAA is not endeavoring to do so. Rather, the FAA's proposed rules and comments point to two unique aspects of sUAS operations that implicate safety issues not present with manned aircraft.

The first aspect involves the FAA’s fundamental rule that all aircraft must "see and avoid" other aircraft. This rule is rooted in human observation and judgment based largely on the use of peripheral vision. Although technology exists that may provide an acceptable substitute, current systems are considered either too heavy to be used with sUAS or technologically unreliable. Additionally, the relatively small size of sUAS coupled with its ability to fly outside the normal air corridors presents the reverse problem of the unmanned aircraft not being seen by manned aircraft. The FAA’s solution is to require the sUAS to remain in the visual line of sight of the operator and observer. There may come a time when avoidance technology may allow this restriction to be eased, but it won't be anytime soon.

The second area of concern is that the operator (i.e. the sUAS pilot) could lose positive control, meaning the data link between the aircraft and the control station could be lost or subjected to interference. The FAA's solution is to restrict the areas within which the sUAS can be used so that it does not fly outside its intended range coupled with the visual line of sight requirement.

Overall, the proposed rules are divided into three parts: operational limits; operator certification and responsibilities; and aircraft requirements. These are set out below with additional explanatory comments.

Operational Limitations

• The total weight of the aircraft, together with all attached equipment, must be less than 55 lbs. (25 kg).
• The aircraft must remain within visual line-of-sight of the operator or visual observer, except for brief moments when the operator or observer is scanning the sky for other aircraft or looking at the control panel. This limitation is further defined as meaning the operator or visual observer must be able to know the aircraft's location; determine the aircraft's attitude, altitude and direction; observe the airspace for other air traffic or hazards; and determine the aircraft does not endanger the life or property of another.
• The aircraft must remain close enough to the operator for the operator to be capable of seeing the aircraft with normal vision. Glasses or contacts are allowed, but binoculars or similar vision enhancing devices are not allowed.
• The aircraft may not operate over any persons not directly involved in the operation.
• The sUAS may only be operated during daylight, meaning between the official sunrise and official sunset at that location.
• The unmanned aircraft must yield right-of-way to all other aircraft, manned or unmanned.
• You may use a visual observer (VO) but it's not required. If a VO is used, the operator and VO must be in constant communication with each other such as by the use of two way radios/phones. They do not have to be standing side-by-side.
• A first-person view camera cannot satisfy "see-and-avoid" requirement but can be used as long as the requirement is satisfied in other ways. This is just another way to say that the operator and/or VO must have the aircraft in their visual line-of-sight at all times.
• The maximum airspeed is 100 mph (87 knots).
• The maximum altitude is 500 feet above ground level. Additionally, the aircraft must be 500 feet below and 2,000 feet horizontally away from any clouds.
• There must be a minimum weather visibility of 3 miles from the control station. This means you can't operate it in a fog bank or rain shower, unless the fog/rain is at least 3 miles from the control station.
• No operations are allowed in Class A (18,000 feet & above) airspace.
• Operations in Class B, C, D and E airspace are allowed with the permission of the applicable Air Traffic Control (ATC) tower personnel. These air space designations can be found on the FAA maps or by contacting the applicable ATC. The vast majority of this airspace surrounds airports, which is why ATC permission is required.
• Operations in Class G (uncontrolled) airspace are allowed without ATC permission.
• No person may act as an operator or VO for more than one unmanned aircraft operation at one time.
• No operations may be conducted from a moving vehicle or aircraft, except from a watercraft on the water, because there are fewer people and properties to impact on the water.
• No careless or reckless operations are permitted. If this sounds like a catchall—it is.
• A required preflight inspection must be done by the operator in accordance with the operating manual of the aircraft and general safety principles.
• A person may not operate a small unmanned aircraft if he or she knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a sUAS.

Operator Certification and Responsibilities

As previously mentioned, the FAA recognizes the different requirements needed for manned and unmanned flight. As a result, pilots of sUAS will not be required to qualify as pilots in the traditional sense and will be referred to as "operators" by the FAA. This is more than semantics. This new classification allows the FAA to set reasonable training and experience requirements for the operators of sUAS without exempting them from regulations governing manned aircraft pilots.

The proposed rules sets out eight general requirements for operators of sUAS. Under the proposed rules, operators would be expected to:

1. Pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center. The ten areas to be tested are as follows: 1) regulations applicable to sUAS system rating privileges, limitations and flight operation; 2) ability to determine the classification of specific airspace they intend to utilize and what requirements are for operating in that airspace; 3) flight restrictions affecting sUAS operations; 4) how to clear an obstacle during flight [how to avoid collisions]; 5) the effects of weather and micrometeorology [weather on a localized and small scale] on sUAS operations; 6) how to calculate the weight and balance of the sUAS to determine the impacts on performance [including available power during the flight]; 7) how to react to an emergency during sUAS operations; 8) aeronautical decision-making/judgment and crew resource management [which is designed to ensure they understand how a manned aircraft may react to the presence of the sUAS in the same airspace]; 9) airport operations and radio communication procedures including standard terminology [for those uses when interaction with ATC is needed]; and (10) physiological effects of drugs and alcohol [since they will be required not to operate the sUAS when they are under the influence].
2. Be vetted (approved) by the Transportation Security Administration.
3. Obtain an unmanned aircraft operator certificate with a small UAS rating. These are similar to pilot certificates that do not expire but must be renewed every two years and is subject to suspension or revocation.
4. Pass a recurrent aeronautical knowledge test every 24 months. Seven areas will be tested: 1) regulations applicable to sUAS flight operations, rating privileges and limitations; 2) airspace classification and operating requirements, obstacle clearance requirements and flight restrictions; 3) official sources of weather information; 4) emergency procedures; 5) crew resource management; 6) aeronautical decision-making/judgment; and 7) airport operations.
5. Be at least 17 years old.
6. Make available to the FAA, upon request, the sUAS for inspection or testing. Additionally, any associated documents/records required to be kept, such as maintenance records, are also subject to inspection.
7. Report an accident to the FAA within 10 days of any operation that results in injury or property damage.
8. Conduct a preflight inspection to ensure the sUAS is safe for operation. This includes inspection of the specific aircraft and control station systems checks. Additionally, the operator must brief all those involved regarding the operating conditions, emergency procedures, contingency procedures, roles and responsibilities and potential hazards as well as ensuring there is enough power to operate the sUAS for the intended operation plus five minutes.

Aircraft Requirements

• An FAA airworthiness certification is not required; however, the operator must maintain the sUAS in condition for safe operations and, prior to flight, must inspect the sUAS to ensure that it is in a condition for safe operation. Aircraft Registration is also required. This is the same requirement that applies to all other aircraft and has to be renewed every three years.
• Aircraft markings are required, as with all other aircraft; but, if the aircraft is too small to display markings in standard size, then the aircraft simply needs to display markings in the largest practicable manner.

These proposed rules represent a significant step forward in the quest to have unmanned aerial vehicles used for business purposes. They provide, for the first time, a common sense approach to incorporating unmanned aerial vehicles into the national airspace. The rules are open for comment until April 24, 2015 and, thus, they could change based upon the comments received. It is not unusual for comment periods to be extended, so there is no accurate way to predict when the final rules will be issued. Still, these proposed rules are a significant leap forward in the effort to capitalize and monetize the technology capturing our collective imaginations. They would, for the first time, allow commercial and other non-recreational uses of sUAS without the cumbersome, expensive application processes now being used. They are, in my view, the taxiway before the runway that leads to more exciting adventures ahead.