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What the FAA's 624-Page Drone Regulation Tells Us About How It'll Police Drones

Jason Koebler

Jason Koebler

The FAA's full commercial drone regulations announcement gives us insight into how it'll enforce its new rules.

Image: Budi Nisyirwan/Flickr

It's Christmas for the drone community, a day that those who want to fly drones commercially have waited for since 2008: The Federal Aviation Administration finally released its final commercial drone rule, clarifying a space that has been fraught with misinformation, confusion, and frustration.

The regulations, called "Part 107," are the result of years of work from the FAA and bargaining from businesses that would like to use drones or reasonably believe they might be affected by drones. To say Part 107 was long-awaited would be underselling it: The industry has been begging for these rules, and the intervening years have been complete chaos.

The rules took so long in part because lots of people care very much about how drones will ultimately be used. The FAA's announcement of Part 107 is 624 pages long, and the first 550 of them are the FAA responding to comments from the 4,600 interested parties who decided to comment on the agency's initial proposal. There's expected comments from companies like Google, Amazon, and UPS, who hope to use drones as core parts of their businesses, there's comments from companies like DJI, who manufactures drones, and then there are comments from cattle ranchers and crop dusting pilots and local police departments and hang-gliding associations—anyone who could possibly be impacted by drones at some point or another.

"A lot of frustration from the last couple years has been attributable to a lack of reasonable rules for a technology people could see was safe and beneficial," Brendan Schulman, DJI's vice president of policy and legal affairs, told me. "It's a relief that we finally have a comprehensive set of rules."

But what do these rules say, and what do they mean for you as a drone business operator, or a drone hobbyist, or I guess maybe a regulatory law nerd (you did click this article, after all)? I combed through all of the FAA's regulation announcement, quickly scanning through sections that were unimportant, uncontroversial, or inane: pages-long discussion about whether the minimum age to fly a drone commercially should be 16 or 17; discussion of what constitutes "cheating" on the pilot's knowledge test. The FAA's analysis of the comments and repsonses to them give us a nice window into the FAA's thinking, which allows us to make an educated guess about how its new rules might fit in with the way it has previously policed drones.

Topline regulations

First of all, there aren't too many surprises in the regulations. They're widely considered to be reasonable for most commercial drone operators, though some pilots might be bummed that there are still altitude restrictions and that drones must still stay within visual line of sight of the pilot.

Small drones covered by the regulations must weigh less than 55 pounds, must stay within visual line of sight, no operating over people, daylight or twilight operations only, must stay away from aircraft, max speed 100 miles per hour, max altitude 400 feet above ground level. You may not fly a drone while you, the pilot, are in a helicopter or airplane or hang glider (seriously!), but you can fly a drone while you're in a moving car or truck provided the drone is in a "sparsely populated area."

Drones must be inspected by their pilot pre-flight (the burden here isn't much—if there are "visible defects" or "leaking fluids," the drone shouldn't be flown), drones must be registered, and you've got to get a certification from the FAA to fly the drone. This certification is expected to cost $150 and will require you to take a three-hour-long test that the FAA estimates will take 20 hours to study for.

There's more to be done

Everything in the section above was more or less expected by the drone community, and those regulations are less burdensome than the previous "Section 333 waivers," which allowed commercial operations under a narrow ruleset and only by people who had manned pilot licenses. The idea is to make commercial operations "routine"—the default will now be that commercial operations are allowed, versus there needing to be an "exception" to the law to allow for it.

If you have a 333 exemption already, you can keep flying under its provisions until they expire. If you don't have one, you're better off just waiting for Section 107 to go into effect in 60 days (August 20).

Still, not everyone will be happy with the regulations.

The regulation doesn't allow for autonomous delivery drones that will travel outside the line of sight of its operator, and the FAA also didn't give blanket approval for First Person View flight—where a drone-mounted camera and video goggles allows the pilot to fly much further than would normally be possible—but says a "visual observer" can be a stand-in and said that in the future it may grant waivers to allow for FPV flight.

On a conference call with reporters and throughout the document, the FAA repeatedly noted that it plans on allowing specific drone operators to fly outside of the regulation's restrictions with express permission. The FAA said it may eventually allow FPV flight, night flights, and beyond line-of-sight flights with "waivers" to the regulations, and said it hopes to make these waivers available online. The FAA seems to be relying on this waiver process for truly innovative uses of drones, and I would expect the agency to grant a lot of them for various uses.

"It's a good first step but there's still a lot to be done," Schulman said.

"Careless and reckless" flight, and the FAA has finally defined "unmanned aircraft"

For years, the FAA has been using manned aircraft regulations to go after people who flew drones in a manner it defined as unsafe. This has resulted in a series of lawsuits and general confusion, because the original statute defined operating an aircraft at lower than 500 feet as one type of "careless and reckless flight," something that is irreconcilable with the idea that drones should be operated at low altitudes. This led to various parties trying to fight the FAA on the idea that drones are "aircraft"—how can they be subject to the same regulations as manned aircraft if those regulations inherently make all drone operations careless and reckless?

Part 107 should, in theory, change that discrepancy once and for all. An unmanned aircraft is "an aircraft operated without the possibility of direct human intervention from within or on the aircraft," and a "model aircraft" is "an unmanned aircraft that is: (i) Capable of sustained flight in the atmosphere; (ii) Flown within visual line of sight of the person operating the aircraft; and (iii) Flown for hobby or recreational purposes."

This is all important, because now these types of aircraft will be subject to Part 107 regulations and not manned regulations. The FAA has made it illegal to operate an unmanned aircraft "in a careless or reckless manner," a determination that "is made on a case-by-case basis through National Transportation Safety Board caselaw."

What this means for people who fly unsafely is still unknown, but now the FAA will have a series of different regulations that it can use to legally fine or otherwise penalize people who don't follow the rules. A safe bet is that the FAA will go after people who fly in "Class B" airspace without getting express permission from an air traffic controller—Class B airspace is the airspace around certain major airports around the country and often includes large parts of many of America's largest cities.

Possible confusion points

When Congress passed the FAA Modernization Act in 2012, it required the FAA to enact these regulations. But part of that act also prevented the FAA from enacting regulations that would restrict hobby operation of drones except in certain limited circumstances that prohibit people from flying drones in a way that "endangers the safety of the national airspace."

The question of what "endangers the safety of the national airspace" is largely up for debate, and the FAA has fined a number of hobby pilots for flying over sporting events or near airports, something that it would likely argue endangers the safety of the airspace. The new regulations codifies this, meaning the FAA will officially be allowed to go after pilots who it deems are a threat to other airplanes. But Congress also said the FAA may not enact restrictions if a pilot is flying under a "community-based set of safety guidelines."

The FAA was asked to define what, exactly, a community-based organization is, and it says it's not yet ready to do so. One obvious example of this type of organization would be the Academy of Model Aeronautics, a large hobby organization that does indeed have its own safety guidelines. But the AMA is also controversial in the drone hobbyist community for being cozy with the FAA and for being slow to accept new technologies that can be flown safely by experienced pilots.

"With regard to comments asking for additional clarity as to what makes an organization a nationwide community-based organization … the FAA notes that this issue is beyond the scope of this rule," the agency wrote.

The FAA then suggested that hobbyists who might want to fly without following these nonexistent guidelines "will be able to simply conduct their operations under Part 107." This suggests that those who don't want to fly under the AMA's guidelines will have to jump through the same legal hoops that commercial drone pilots need to in order to fly, and then will have to comply with the FAA's commercial drone regulations. In practice, this probably isn't a huge deal, but the principle of it does seem to fly against Congress's intent.

One last note about the definition of "aircraft" as it applied to hobbyists: The FAA has codified a new definition of "unmanned aircraft," but is clinging to its earlier stance that all drones are "aircraft" in the larger sense. This is important, because the FAA is using that definition to "trigger the FAA's registration and certification statutory requirements." This is the legal basis the FAA is using to require all hobbyists to register their drones, a requirement that's currently being challenged in court under the idea that the FAA is not allowed to create new restrictions for model aircraft pilots.

Wrapping up

There are now commercial drone regulations! Overall, this is a good day for drone businesses. For years, the industry has been saying that the FAA has put the US behind the rest of the world when it comes to having rules that allow companies to fly without worrying about getting punished. Now, the US has its own rules and, all told, they're some of the most permissive and comprehensive in the world.

"This is a very good precedent for the rest of the world, to have the most respected aviation authority in the world say you can operate drones for routine commercial purposes, that puts the United States ahead of most countries," Schulman said. "Over the years, other countries were ahead in allowing the first operation of drones, the most operations, but really there aren't that many countries that have finalized final rule structures that is intended to stick around a long time. I think that'll be quite influential around the world."

And, now that there are regulations, the FAA will be well within its right to enforce them. It'll be interesting to see if the agency suddenly gets more aggressive in going after unsafe pilots.