By Steve Fogle of Jackson Walker
(April 14) – 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 2012, Congress directed the Secretary of Transportation to determine whether “certain unmanned aircraft systems may operate safely in the national airspace system” and, if so, to propose rules to govern those systems by September 2015. As the public appetite for unmanned aircraft outpaced its efforts to craft a workable set of regulations, the FAA issued 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 first aspect is the FAA’s fundamental rule that all aircraft must “see and avoid” other aircraft. The FAA’s solution is to require the small UAS to remain in the visual line of sight of the operator and observer. The second is that the operator could lose positive control, meaning the data link between the aircraft and the control station could be lost. The FAA’s solution is to restrict the areas within which the small UAS can be used so that it does not fly outside its intended range coupled with the visual line of sight requirement.
The proposed rules are divided into operational limits, operator certification and responsibilities, and aircraft requirements.
Operational Limitations
• The total weight of the aircraft must be less than 55 lbs.
• 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.
• The aircraft must remain close enough to the operator for the operator to be capable of seeing the aircraft with normal vision.
• The aircraft may not operate over any persons not directly involved in the operation.
• The small UAS may only be operated during daylight.
• The unmanned aircraft must yield right-of-way to all other aircraft.
• 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 but do not have to be 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.
• 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.
• No operations 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.
• 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 conducted from a moving vehicle or aircraft, except from a craft on the water.
• No careless or reckless operations are permitted.
• A preflight inspection by the operator is required.
• A person may not operate a small unmanned aircraft if he knows or has reason to know of any physical or mental condition that would interfere with the safe operation of a small UAS.
Operator Certification and Responsibilities
Pilots of small UAS 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 these UAS that does not require them to qualify as a pilot.
Under the proposed rules, operators would be expected to:
1. Pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center.
2. Be vetted by the Transportation Security Administration.
3. Obtain an unmanned aircraft operator certificate with a small UAS rating similar to pilot certificates that must be renewed every two years.
4. Pass a recurrent aeronautical knowledge test every 24 months.
5. Be at least 17 years old.
6. Make available to the FAA, upon request, the small UAS and its maintenance record for inspection or testing.
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.
Aircraft Requirements
• An FAA airworthiness certification is not required; however, the operator must maintain the small UAS in condition for safe operations and, prior to flight, must inspect the drones to ensure that it is in a condition for safe operation. Registration is also required every three years.
• Identification 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.
Jackson Walker partner Steve Fogle represents media companies and individual journalists, editors, publishers, and content producers on First Amendment, privacy, and newsgathering issues and has wide experience in representing business clients on a complete range of commercial, construction and contractual matters.