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Part 107: The New Way to Fly and Shoot — Commercially


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Up until recently, the main way to meet the FAA requirements for using a drone for commercial purposes (or, in the latest parlance from the faa, “non-model” UAS flying) was to go through the agency’s cumbersome and lengthy 333-exemption process.  So that had become the customary process for a newsroom or individual who wanted to take pictures or video, and use them for their station or business, or get paid for them.  And even with 333 exemptions, the conditions and limitations that applied put quite a stranglehold on the nature, flexibility, and locations of drone use.

In June, a long-anticipated new rule for drone operations was issued by the FAA.  It is to go into effect August 29, 2016.

This Part 107, “Operation and Certification of Small Unmanned Aircraft Systems” will be the rule ahead, but don’t gloss over its detail, requirements and in some areas, complexity.

The final document of release of the rule (624 pages) is here:  https://www.faa.gov/uas/media/RIN_2120-AJ60_Clean_Signed.pdf

A summary of its major provisions is here:  https://www.faa.gov/uas/media/Part_107_Summary.pdf

FAQs from the FAA on UAS operations (about 60 questions/answers), including on Part 107 operations, 333 operations, and the relationship between the two, are here: https://www.faa.gov/uas/faqs/

Many of its elements and requirements are not totally clear, and will be subject to interpretation and clarifications over time.  Many of the requirements will need to have certain other procedures, website testing, remote pilot operator certification,  etc., that may, or may not, be fully established and available at the time the rule goes into effect.  Embedded in the rule are matters or references in this rule to other Federal Aviation Regulations, and without knowing the interconnects and the text of the rule references, it may be difficult to grasp some of the nuanced requirements (and limitations or enforcement potential).  So, in short, this will be the rule under which media wishing to use drones for their newsgathering will be able to operate (without a 333 exemption).  And this rule does ease certain requirements that have been incorporated into 333 operations requirements that have been granted up to now .  Among the “easier” things:

  • There doesn’t seem to be any COA requirement for ops within the rule’s limitations.
  • The whole matter of limitations in flying over private property is absent from this Part 107.
  • There doesn’t seem to be any advance notification requirement for ops within the rules limitations.
  • The holder of the “remote pilot certificate” envisioned under this rule can operate on his/her own, without a visual observer (though one may be used).
  • No monthly reporting requirements to the FAA regarding fight operations seem to be present.

There is a requirement for a new kind of pilot certificate: a “remote pilot certificate”, which will be granted based on testing of various areas of aeronautical knowledge, including weather, air traffic control procedures, aviation chart reading,  and airspace knowledge, particularly on classes of airspace and limitations related to UAS operations in them.  There are a number of other subject areas that also will be tested, and the testing must be done at an FAA testing center, of which there are to be several hundred around the U.S.  The holder of a traditional FAA pilot certificate can be a UAS pilot, but also must take an online course on UAS operations (and get validation for taking that course), and must meet flight and pilot licensing currency requirements in the type aircraft for which the pilot  is certified.

In one other seeming bit of flexibility (but perhaps not, when you look deeper at the rule’s working) the “remote pilot in command” may be present and oversee the flight operation while the aircraft is actually controlled by another person who, it seems, does not have to hold any pilot certificate. However, this is only applicable, per the rule when: “That person is under the direct supervision of a remote pilot in command and the remote pilot in command has the ability to immediately take direct control of the flight of the small unmanned aircraft.”    So, for instance, in the “need for interpretation department”, what constitutes “immediately take direct control”?    Is that a dual control flight system, where the command control box can switch, or unswitch, control to the other?  These are the kinds of nuances that are easy to miss with a quick reading of the rule.

Among the challenges still are the limitations on flying directly over people, and the airspace limitations (no flying UAS in Class B, C, D, or lateral limits of E, airspace).  Either waivers or specific permission can be granted locally for flight into such airspace.  Methods for this are still being explained, but this will create some limits in key areas near any significant city.  So, while much of this seems to offer more flexibility, it nonetheless contains nuances and substantial limitations that will create some challenges to those wishing to rely on this for news gathering.

The FAA states this in its Part 107 official release document (on and around page 542, where, in this area, there is more about the First Amendment and speech ramifications of this rule):

“Similarly, this rule is directed at aviation safety and does not directly regulate reporting or other expressive activity. Anyone seeking to use a small UAS for photography or videography in a manner not permitted under this rule is free to utilize another method of photography or videography by, for example, using a manned aircraft, filming from a tall structure or landmark, filming from the ground, or using specialized equipment. Thus, the provisions of this rule meet the constitutional standard for an incidental restriction on speech, and enforcement would not implicate the First Amendment.

d. Time, Place, Manner Restrictions on Speech.

Finally, even if we were to assume that this rule directly regulates expressive activity in a public forum, the provisions of this rule would still be consistent with the First Amendment as a permissible time, place, or manner restriction on speech. A constitutionally permitted time, place, or manner restriction on speech occurs when the regulation is content-neutral, narrowly tailored to serve a significant government interest, and leaves open ample alternative channels of communication.”

In addition, the issue of privacy is always at the forefront, and the National Telecommunications and Information Agency completed an 8 month working group effort on this topic (“best practices” on drone use privacy, accountability and transparency) in May. Their final published guidelines does contain a broad First Amendment carve-out for media, but awareness of it might be useful to UAS commercial operators:  https://www.ntia.doc.gov/files/ntia/publications/best_practices_for_uas_privacy_transparency_and_accountability_0.pdf

Getting fully set up to operate under Part 107 may take some weeks or months after the startup date for the reg.   Some elements of the 333 grant conditions differ from those of Part 107, so if you have both, you may be able to pick and choose which is best for a given mission, but you must then operate a given flight under one or the other.   In general, it appears overall that Part 107 offers a simpler system of operations.  So, how long it will take for someone to fully meet the operational requirements of Part 107 is yet to be seen.  In the meantime, the FAA has put up online resources with information toward remote pilot certification, providing guidance on pilot standards and requirements, the aeronautical knowledge being tested, and how the process is to work, including direction toward what will be online sign-ups for testing, course-work, and applications, for both non-certificated pilot and for presently-certificated pilots, for individuals wishing to get a remote pilot certificate.  It’s all up  FAA UAS website, with a good starting point being this page: https://www.faa.gov/uas/getting_started/fly_for_work_business/becoming_a_pilot/

Berl Brechner
August 4, 2016. Updates: August 9, 2016