FAA exemptions require licensed pilots, "sterile" sets for commercial UAS use

Photo from Aerial Mob, one of the six companies granted permission to conduct drone flights for commercial film use in the United States.

Photo from Aerial Mob, one of the six companies granted permission to conduct drone flights for commercial film use in the United States.

With a number of strict requirements, for the first time in the United States, film companies will be authorized to fly unmanned aircraft systems for commercial purposes.

Today, the Federal Aviation Administration announced that it would grant six film companies -- Astraeus Aerial, Aerial MOB, LLC, HeliVideo Productions, LLC, Pictorvision Inc, RC Pro Productions Consulting, LLC dba Vortex Aerial, and Snaproll Media, LLC -- exemptions from existing regulations in order to fly commercial drones for television, motion picture, and internet video.

The current FAA policy is to ban flights it considers non-recreational in nature, which it has enforced in recent years through more than a dozen cease and desist letters, and a single $10,000 fine for one operator. The FAA has insisted that non-recreational drone flights requires some kind of authorization -- be it a Certificate of Authorization (COA) for public agencies, or experimental certification for private companies.

The FAA has maintained its position in spite of a Federal judge ruling that the FAA lacks any enforceable regulations or the authority to regulate model aircraft, even when flown for profit. The FAA was required by the FAA Modernization and Reform act of 2012 to issue final rules for small UAS rules by August 2014, and while the FAA originally intended to publish proposed rules for small UAS in March 2011, the most recent report on significant rulemakings from the Department of Transportation (DOT) now estimates those proposed rules will be published in December of this year.

This followed an audit from the DOT Office of the Inspector General, released in June, which concluded that "privacy concerns" had delayed the rulemaking process, and that "safety risks will persist until FAA establishes performance, air traffic control, and certification standards to regulate UAS use."

Eager to make use of small UAS that became more capable and useful by the day, companies working for the motion picture industry petitioned the FAA to allow their commercial flights under a little-known exemption called a "333." That refers to Section 333 of the Modernization and Reform Act, which gives the Secretary of Transportation the authority to pick and choose the drones that will fly before final rules are made:

(a) INGENERAL.—Notwithstanding any other requirement ofthis subtitle, and not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before completion of the plan and rulemaking required by section 332 of this Act or the guidance required by section 334 of this Act.
— FAA Modernization and Reform Act of 2012

And today, the FAA told those petitioning film companies "yes."

What makes this approval important, besides the fact that it's the first time the FAA has officially signed off on commercial camera drones in the US, is that the exemptions are effectively the first commercial drone regulations besides the flat-out "no" policy. That's because those exemptions, for the first time, provide clear instructions about what can fly, when it can fly, when it can fly, how it can be flown, and who can fly it.

For example: all of the exempted drone operations must have a pilot in command who is licensed to fly privately in the US. Additionally, any non-authorized persons may not be permitted within 100 feet of the drone, the drone must be operated in a "sterile" environment, and all operations must have the advance permission to fly from the regional FAA flight standards office and local authorities.

These rules effectively restrict drone use to closed sets, and make most journalism and documentary projects unfeasible. Additionally, they require small UAS pilots to have the same medical certification and training as pilots of manned aircraft, despite the fact recreational flyers can use (and have been using for some time) the very same equipment without so much as a driver's license or a NOTAM.

There is, perhaps, a small, silver lining in here for American small drone operators in the form of aircraft certification. The FAA noted that because of a reduced "potential to harm" compared to manned, certified aircraft, the film company's UAS doesn't need to be certified like other aircraft. It won't require a copilot, protection against GPS or signal jamming, ADS-B, or sense-and-avoid features:

This exemption does not require an electronic means to monitor and communicate with other aircraft, such as transponders or sense and avoid technology. Rather the FAA is mitigating the risk of these operations by placing limits on altitude, requiring stand-off distance from clouds, permitting daytime operations only, and requiring that the UA be operated within visual line of sight and yield right of way to all other manned operations. Additionally, the exemption provides that the operator will request a NOTAM prior to operations to alert other users of the NAS.
— Exemption No. 11062, for ASTRAEUS AERIAL

In other words, these exemptions mean the operators won't require prohibitively expensive equipment in order to fly. This is a different set of airworthiness requirements than what some members of the UAS community had feared, given what was proposed by the American Society for Testing and Materials (ASTM) F-38 committee on unmanned aircraft systems.

"If the FAA lets Hollywood skip past ASTM F-38 and the military surplus rule it might do everybody a favour when more widespread commercial RPAS regulations finally happen," Gary Mortimer, editor of sUASNews.com wrote.

Mortimer added that those F-38 recommendations were "peppered with requirements that would help legacy DoD vendors," and leave more consumer and commercial-oriented drone developers drowning in the regulatory wake.

Hollywood, too, has political clout, which is why the Motion Picture Association of America was able to throw its weight on this first round of exemptions.

Will major American news organizations, let alone independent journalists and filmmakers, be in the next round of exemptions? What kind of certifications would be required outside of a "sterile" environment? Those are still unknowns, and it might take full sUAS rules to resolve those questions. But at the tail end of its press released, the FAA announced it was considering 40 further 333 exemptions.

Posted on September 25, 2014 .