Regulation

Current status

The operation of drones in U.S. airspace is illegal except in two situations: hobbyist flights of model aircraft or when the operator has special permission from the FAA. This paper explains the statutory basis for the FAA's position.


The FAA issued a proposed rule for microdrones in February, 2015, but it will not become an enforceable final rule until mid 2016, at the earliest. In the meantime, special permission is necessary for civilian commercial operations.


As in so many other areas of aviation regulation, categories are important. Aircraft operations are categorized as "civil" or "public" Public aircraft are those flown by units of federal, state, or local government. Civil aircraft are everything else, from a Boeing 777 flown in scheduled service by United Airlines to a Robinson R22 helicopter flown by an individual private pilot.


FAA permission for operation of public use drones can be obtained under a Certificate of Authority ("COA"). Several hundred of these have been granted, mostly to military operators. Civil drone operations are permissible only under a special airworthiness certificate. (SACE) or under a petition for exemption. Only a handful of (SACEs) have been granted, but the FAA has granted more than 4,000 "section 333 exemptions" permitting commercial drone operations and has hundreds of petitions for section 333 exemptions pending. 


Hobbyist flights of model airplanes can occur under the guidelines issued by the FAA, which create a safe harbor for flights below 400 feet, within sight of the operator, and not near airport or dense population areas. The model airplane safe harbor does not permit flights for commercial purposes.


A second set of categories shapes the FAA's attitude toward issuance of COAs, SACEs,and petitions for exemption and also frames its intentions for the evolution of drone flight in the national airspace under generally applicable regulations. Micro-drones, what the FAA called sUAS, will be subject to less stringent regulations, similar to the model aircraft rules: allowing only vehicles weighing less than five pounds, below 400 feet, within sight of the operator. Machodrones, bigger aircraft, will be subject to more stringent regulation under rules similar to, and derived directly from existing rules for certification of aircraft and airmen and for flight operations under Parts 91, 119, and 135 of the FARs. 

Basic regulatory philosophy

The two hallmarks of safety regulation for drones are traffic separation and protecting the safety of persons and property on the ground. The FAA expects to pursue these goals differently with respect to microdrones and machodrones. For microdrones, the key is to limit weight and the height of drone operations and to require that the operator keep them in sight. A maximum weight for microdrones limits the amount of damage they can do if they collide with another aircraft or with a person or structure.


The height limitation keeps microdrones away from most manned aircraft operations by confining them to a part of the airspace rarely used by manned aircraft. Part 91 prohibits airplane flight within 500 feet of any person or object on the ground, and permits helicopter operations below 500 feet only when the helicopter flies so as avoid hazards to persons or property. Manned aircraft rarely fly below 500 feet. Helicopters rarely fly below 500 feet except when landing, taking off, or flying in an airport traffic pattern because of the difficulty of setting up an autorotation below that height.


The line of sight restriction relies on the microdrone operator to fly the drone so as to avoid other aircraft, which he can see, because he can see where the drone is.


For machodrone operations outside these restrictions, other means must provide for traffic separation and for avoiding hazards to people or property on the ground. The primary measure will be a form of telemetry that will be required of all aircraft by 2020 under Next Gen. Both drones and manned aircraft will be required to have specially equipped transponders known as a ADS-B Out ("Automatic Dependent Surveillance - Broadcast"), which transmit data blocks representing GPS position, altitude, speed, and direction of flight as least once per second.


Anyone with an ADS-B In receiver – another drone operator, an airplane or helicopter pilot, or an FAA controller--can thus determine the presence and flightpath of other aircraft. Already, a variety of relatively inexpensive ADS-B In receivers and associated displays permit pilots to see aircraft with ADS-B Out equipment depicted on their displays of moving maps and aeronautical charts.


Whether ground displays of video imagery captured by the drone will give the ground operator visual references comparable to what is available in the cockpit is an important question yet to be resolved. ADS-B equipment on manned aircraft alerts the pilot to a potential hazard, but he still must acquire visual contact in most instances before he decides what to do to avoid a collision.

Timing of drone integration

Under an explicit and detailed statutory mandate contained in the FAA Modernization and Reform Act of 2012, the FAA has issued aComprehensive Plan and a Roadmap for development of a general regulatory framework.


The FAA’s plans for drone integration into the NAS contemplate four overlapping phases. The first makes it easier for public agencies to get COAs for microdrone use. 


The second makes it easier for civil operators to get special airworthiness certificates for microdrones.


The third begins to allow public use of microdrones under more generally applicable regulations. The fourth allows civil use of machodrones under generally applicable regulations.


The FAA expects more widespread operations of microdrones by both governmental and private operators by the 2015 to 2018 time period, and fully integrated operations by microdrones and machodrones by 2020, when the Next GEN requirements for manned-aircraft operations are effective.


In February, 2015, the agency released a notice of proposed rulemaking (NPRM) for operation of microdrones--those weighing less than 55 pounds. The NPRM is accessible from the home page of this website.


In late 2014, the FAA began granting "section 333 exemptions" allowing commercial drone operations on a case-by-case basis. A link to those exemptions also is accessible on the home page.
Legislation
The statutory authority for the FAA under the 2012 Act expires at the end of September, 2015. The Congress accordingly is considering new reauthorization legislation.

Two bills have been introduced in the Senate that will shape consideration of the new legislation.

S.1314, introduced by Senator Booker, 161 Cong. Rec. S2849 (May 13, 2015) and referred to the Committee on Commerce, Science & Technology, would authorize commercial microdrone operations until the FAA promulgates its final rule. 

S.1618, introduced by Senator Feinstein, 161 Cong. Rec. S4300 (June 18, 2015), and referred to the Committee on Commerce, Science & Technology, would extend the FAA's authority to "consumer drones"--those flown for hobbyist and recreational purposes--and mandate that the FAA prohibit the sale of drones unless the meet certain safety standards. Here is Sen. Feinstein's statement in the Congressional Report about the bill.