With new rules, the FAA and drone industry make up
With new rules, the FAA and drone industry makeÂ up
Sunday's release of a set of proposed rules governing the use unmanned aerial systems--better
known as drones--in U.S. airspace didn't hold very many surprises. But according to industry
sources, the lack of surprises was the most pleasantly surprising aspect of the Federal Aviation
A first pass at the 195-page document shows an FAA that is far more in tune with industry needs
than many imagined, providing a kind of "healing moment," as one source puts it, for an industry
and a regulatory overseer whose relations have long been strained. Many drone industry insiders
have variously regarded the FAA as dawdling, too risk-averse, and overly burdensome. The agency
has struggled to produce a set of cohesive regulations regarding drone use--particularly commercial
use--as drone technology has exploded over the past several years.
But the proposal shows that the FAA has worked hard to avoid overly-onerous regulations. It's a
promising sign for companies that want to integrate drones into their day-to-day operations and the
drone makers eager to supply them with hardware, software, and support.
"I think the FAA has had a tremendously difficult job to do, and I think what they came out with over
the weekend was surprising," says Matthew Bieschke, president of the $2.2 billion UAS America
Fund, an investment fund designed to facilitate financing of infrastructure related to unmanned
aerial systems. "It was less conservative than a lot of people in the industry thought it would be."
That surprise--or relief--is a common sentiment around the nascent industry.
"I would say that what we're seeing is refreshing," says Jesse Kallman, head of business development
and regulatory affairs at Airware, a San Francisco-based startup that develops operating systems
and other technologies for drones. "We were expecting that even within this already walled-off
environment we were going to see a significant amount of additional rules."
The Notice of Proposed Rulemaking contains plenty of rules. But most are no more restrictive than
the industry was expecting. (In many cases the rules are somewhat more relaxed than many drone
advocates feared.) Broadly, the proposed rule stipulates that drones used for commercial operations
should weigh less than 55 pounds, fly only during daylight hours in good weather, fly no faster than
100 miles per hour, stay away from airports, and remain within visible line of sight of the operator.
While the proposal doesn't distinguish between very small drones and larger models or provide for
beyond-line-of-sight operations, it also doesn't burden users with onerous airworthiness or pilot
But there are aspects of the notice that the FAA got wrong, says Brendan Schulman, head of the
unmanned aircraft systems practice at New York City-based law firm Kramer Levin Naftalis Frankel.
For instance, the document seems to place drone-related academic research under the umbrella of
commercial operations, making drone-enabled research more difficult. The rules prohibit flying at
night or at altitudes above 500 feet, which doesn't make sense in rural areas where the airspace
(and ground space below) is largely clear. And for the time being the proposed rules sweep aside
drone delivery concepts like the one hatched by Amazon.
"The proposal considers drone delivery to be air carriage subject to heightened regulatory standards
outside the UAS proposal," Schulman told Fortune in an email. "That's a legal distinction that made
sense in the manned aircraft era but I am not sure why they are holding on to it. It strikes me as a
real blow to Amazon and other companies that have been working on drone delivery projects."
Critically, the proposal will not require small drones to comply with the FAA's airworthiness or
aircraft certification regulations--that is, users won't have to certify their 10-pound drones by the
same process that one certifies a Cessna--and will not require the same training or medical rating
required of manned aircraft pilots. Rather, the FAA will create a separate knowledge-based
certification process for drone operators that will require regular recertification. These two aspects
of the proposal could be the most impactful for companies, as getting their drones into the air won't
be nearly as costly or time-consuming.
"People feared that the new process would look like the Section 333 exemption process up to and
including the private pilot's license requirement," says Lisa Ellman, counsel and co-chair of the UAS
Practice Group at the D.C. office of McKenna Long Aldridge, referring to the FAA's current means of
approving commercial drone applications on a case-by-case basis. "That's a really involved process
and it's not easy, it's a several-month process. So this is a huge, wonderful thing, this new UAS
operator's certificate. It will be relatively easy to get and will make drones broadly accessible."
While the specifics of FAA's proposal are encouraging to commercial drone advocates, it's the broad
strokes of the document that are perhaps most promising to companies looking to take advantage of
drone technology, Ellman says--echoing Bieschke, Kallman, and many others within the industry that
have issued press releases, blogged, and publicly opined about the document since it's release
Sunday morning. The document shows an FAA that recognizes that drone technology is outpacing
policy and was careful to build flexibility into its proposed rules and processes.
Critics say the proposed rules lack a provision providing for beyond-line-of-sight operations (critical
for applications like power line or pipeline inspection) and a distinction between hulking 50-pound
drone aircraft and small, four-pound quadrotors. But the document leaves the door open to such
things in the future. Though the FAA has been careful to stick to its core mission of regulating the
national airspace and leave privacy issues to other more appropriate agencies, the White House on
Sunday released a memorandum on privacy and transparency that will not only guide government
agencies in their use of drones but also create a process for developing and enforcing new privacy
norms through the Department of Commerce--a signal that other government agencies are prepared
to move forward with drone integration alongside the FAA.
The FAA still remains far from a final set of commercial drone rules. It will accept comments on the
proposed rules for the next 60 days and it's expected to take another year to weigh all those
comments and process them into a final set of regulations, likely sometime in 2016. But now that
companies have a whole lot more clarity on what the FAA and other agencies are thinking they can
begin investing in their own concepts of commercial drone operations. For a industry that's been in
a holding pattern for the last several years, it's difficult to be anything but upbeat, Ellman says.
"I think this is going to open up lots of investment in the industry, lots more movement in the
industry," Ellman says. "Sunday provided a very important moment for all of us because it really
gives the industry a sense of certainty, a roadmap for where we're going, and it's all very good