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The New FAA Rules Signal Takeoff for Drone Startups

Emilie de Lozier

Attorney, Wilkinson Barker Knauer, LLP

Rachel Wolkowitz

Attorney, Wilkinson Barker Knauer, LLP

Companies looking to incorporate drones into their businesses should prepare for takeoff later this summer.

The Federal Aviation Administration recently released the first set of rules for commercial use of small unmanned aircraft systems (sUAS) — or drones — in the national airspace. The new rules, collectively referred to as “Part 107,” permit commercial drone operations as long as certain requirements are met, opening the skies up to entrepreneurs eager to use drones to keep tabs on infrastructure, dust crops or photograph weddings.

For many companies, the new rules provide more flexibility, lower barriers to entry and simplified day-to-day operations. Still, there is reason to be cautious, as the rules set some limits on drone operations that have the potential to trigger liability. With a general understanding of Part 107, companies can take advantage of these business opportunities, while avoiding unnecessary legal risks.

The FAA currently authorizes commercial drone operations on a case-by-case basis through a special petition procedure called a Section 333 exemption. The FAA has granted more than 5,000 of these exemptions — each with over two dozen operating conditions — and thousands more are still pending. Part 107 should minimize the need for operators to seek such exemptions.

We know it’s counterintuitive, but new rules are a good thing. Companies are already using drones in innovative ways, and the use cases will only expand once the rules become effective on August 29, 2016. The new rules offer many cost-saving and other benefits compared to the requirements in the Section 333 exemptions.

For example, most Section 333 exemptions prohibit flights within 500 feet of individuals not involved in the operation of the drone. Rather than a broad 500-foot buffer rule, the new rules prohibit flights directly above nonparticipants — giving companies more leeway when operating drones in urban and suburban areas.

Further, the rules create a streamlined, drone-specific pilot’s license — the “remote pilot certificate” — that allows operators to avoid the time-consuming and expensive training needed to fly manned aircrafts.

Caution still warranted. Of course, Part 107 incorporates some of the “legacy” conditions typically imposed in Section 333 exemptions. For example, drones must be flown within the line of sight of the operator and only during daylight hours. (Note, drones with appropriate anti-collision lighting may be flown during “civil twilight” — up to 30 minutes before sunrise and 30 minutes after sunset.)

However, if you want to conduct drone operations outside the scope of these rules, you can apply for a waiver. Most operational restrictions in the new rules are waivable upon demonstrating that you can fly safely without them.

Even with a broad waiver mechanism, basic safety restrictions such as the prohibition on reckless airborne operations still apply. With these restrictions come requirements like registering your drone and reporting any accidents.

Startups should develop compliance plans and abide by best practices to avoid fines and other penalties, and, as mentioned here a few months ago, the Washington, D.C. area has special flight restrictions that 1776 members must be aware of.

All drone operations must be conducted by, or under the supervision of, a person who holds a remote pilot certificate. Licensed pilots (with up-to-date flight reviews) can quickly achieve this certification by taking a free online training course. Novice flyers without a pilot’s license can obtain certification by passing an aeronautical knowledge test and meeting certain age and security clearance requirements.

Startups must be aware of non-FAA activity, too. Important to note is that although the FAA has acknowledged the privacy implications of using drones, the new rules do not include any specific privacy safeguards. Instead, the FAA directs the public to voluntary best practices developed through the another federal agency, the National Telecommunications and Information Administration.

If your startup is interested in using drones, stay tuned for further developments. Part 107 is the first step in a series of rulemakings to integrate drones into the national airspace.

Disclaimer: the above article is solely educational purposes and does not constitute legal advice. It should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Emilie de Lozier

Attorney, Wilkinson Barker Knauer, LLP

Emilie de Lozier is an attorney with Wilkinson Barker Knauer, a boutique law firm focusing on technology and telecommunications law and policy.

Rachel Wolkowitz

Attorney, Wilkinson Barker Knauer, LLP

Rachel Wolkowitz is an attorney with Wilkinson Barker Knauer, a boutique law firm focusing on technology and telecommunications law and policy.