Attorney: FAA’s small UAS rule gives operators more flexibility

By Patrick C. Miller | June 22, 2016

The Federal Aviation Administration’s (FAA) final regulations for small unmanned aircraft systems (UAS) provide increased operational flexibility that will lead to more competition from businesses entering the field, according to UAS attorney James Mackler.

“One of the takeaways is that there’s a ton more flexibility under these rules—both in the way they’re written and the opportunity for interpretation and waivers—than there was under the Section 333 exemptions,” he explained.

One area in which the Nashville attorney with the Frost Brown Todd law firm sees as particularly appealing for new UAS-related businesses is in the inspection of infrastructure, such as cell towers, wind turbines and other tall structures. Taking advantage of the 500-foot no-fly zone for manned aircraft around such structures, the FAA’s new rule allows UAS to operate within 400 feet of them.  

“It opens up a whole another area of industry that people have been wanting to do for a long time,” Mackler said. “As far as I know, no one has been granted permission under a Section 333 exemption to do that. I think it’s great.”

However, Mackler believes businesses such as Amazon and Google that have been pushing the FAA to allow UAS package delivery will likely be disappointed that the prohibition against beyond visual-line-of-sight flying remains and that language expressly forbidding the activity has been added to the rules.

“They’ve specifically said that they’re not going to waive the moving vehicle or line-of-sight requirements in relation to package delivery,” he noted. “It’s interesting the way it reads. I’m not sure why they did that, but it’s there and it’s clearly directed at stopping package delivery.”

The option to apply for waivers from certain provisions within the small UAS rules is good, but Mackler said at this point, there’s no way to be certain how waivers will be granted or how long the process will take. Those operating under Section 333 exemptions with special permissions will likely continue to do so, he said.

“You can still apply for 333s, but I’m not sure that a lot of people will now because there really aren’t too many advantages,” he said. “It depends partly on how hard it will be to get a waiver. Nobody knows what that’s going to involve or how long it will take.”

In Mackler’s view, the new FAA small UAS rule—known as Part 107—is not only good for business, but it’s also good for lawyers who specialize in UAS law.

“If you’re going to conduct any operation that isn’t very clearly addressed in 107, you’re going to want a legal opinion,” he said. “There are a number of different ways to interpret some of these provisions.”

In addition, he said any business that wants to hire a UAS service company needs to make certain the company has all its proper FAA certifications under Part 107 or Section 333.

“People contracting with drone service providers need someone to perform a due diligence function to make sure the people they’re operating with are following the rules,” he noted. “The people who are operating under rule 107 will need training in compliance work and someone to help develop policies.”

One concern Mackler has about Part 107 is that it only requires commercial UAS operators to do a preflight inspection of their aircraft before flight.

“At least under Section 333, you had to fly an aircraft that the FAA specifically approved, either within your 333 or on the list of their approved aircraft,” he explained. “That creates a little bit of quality control. That’s gone entirely under 107.”

Mackler believes a positive aspect of the small UAS rule is that it will result in more commercial drone operators remaining in compliance with the FAA’s regulations.

“If someone goes through the trouble of getting a remote pilot in command certificate, then they’re going to want to protect that investment of time and money, and they’re going to try to comply,” he said.

The FAA has provided a website for frequently asked questions about the new Part 107 small UAS rule here.


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