By: George John

The Federal Aviation Administration (“FAA”) has jurisdiction over the national airspace, but the agency has never had Unmanned Aircraft System (“UAS” or “drone”) in that airspace before.[1] As set forth in the 2012 FAA Modernization and Reform Act, UAS refers to “an unmanned aircraft and associated elements including communication links and the components that control the unmanned aircraft.” In 2007, the FAA announced that no person may operate an UAS in the national airspace without specific authority. The agency has repeatedly stated that the reason it does not certify commercial UAS flights because of safety concerns. Before the newly proposed small UAS (“sUAS”) rules came to fruition, the agency maintained a limited licensing regime to allow a select group of operators to fly each year.

Within the United States, commercial UAS operators could currently circumvent the regulations with the help of a single waiver. This provision grants the Secretary of Transportation the authority to determine if certain UAS may operate in the national airspace before the completion of the comprehensive rulemaking for UAS. For UAS operating as public aircraft, the authority is the Certificate of Authorization (“COA”). To operate a non-public aircraft, an operator can apply for a Section 333 exemption or for a Special Airworthiness Certificate. Finally, for model aircraft, the authority is AC 91-57.

Though these exceptions exist, sUAS operators can now get their devices quicker into the air with the FAA’s newly proposed rules for small drones. On February 15, 2015, the FAA proposed a framework of regulations “that would allow routine use of certain [sUAS] in today’s aviation system, while maintaining flexibility to accommodate future technological innovations.”[2] The FAA’s proposed rules apply to those UAS under fifty-five pounds. An operator would have to use the sUAS in visual line of sight, meaning the operator would need to see the drone with her eyes with nothing more than the aid of glasses, and she would only be able to use the sUAS only during the daytime. Additionally, flights are limited to 500 feet altitude and no faster than 100 mph. Finally, an operator need to be at least seventeen years old, must pass an aeronautical knowledge test, and obtain an FAA UAS operator certificate.

The FAA has created a flexible framework for these rules, and it asks for the public’s suggestions through the notice and comment period that is now open for sixty days. The agency is asking for comments on whether the visual line of sight should be eliminated and if so, what the limitations should then be. There is also a proposed micro UAS framework, for those UAS under 4.4 pounds, and the FAA is open to comments on it. Finally, the agency is looking for comments on how to update its UAS test site program.

In all, the FAA is moving to unprecedented territory with these first-of-its-kind proposed rules for small UAS. Big technology companies, such as Amazon, should be heavy hitters in this conversation. Particularly, Amazon wants to use sUAS to deliver packages to customers. However, the current proposed rules restrict sUAS operations to line of sight during the day; the line of sight requirement will prohibit the company from using the sUAS to deliver its packages. Perhaps, Amazon and other commenters will be able to test the agen

[1]See generally FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 126 Stat. 11 (Feb. 14, 2012) (obliging the FAA to settle on a body of UAS regulations by September 30, 2015).


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