Commercial Drone Use Continues to Grow, But So Too Does the Regulatory Framework
The use of drones in commercial operations has grown exponentially in the last seven years and now are being used daily in many industries such as farming, construction, and oil and gas. The Federal Aviation Administration (FAA) regulates drone usage through its regulations (Part 107) and its waiver process.
The FAA’s operational rules for drones are found at 14 CFR Part 107 Small Unmanned Aircraft Systems (known as “Part 107.”) A small drone, weighing less than 55 pounds, can be flown for work or business by following the Part 107 guidelines. Aviators operating under Part 107 must learn the rules, become an FAA-Certified Drone Pilot by passing the knowledge test and register their drone with the FAA.
A waiver is an official document issued by the FAA, which authorizes certain operations of aircraft outside the limitations of a regulation (Part 107), but under conditions ensuring an equivalent level of safety. Once a waiver application is submitted at FAADroneZone.FAA.gov, it is assigned to an analyst and the aviator receives a reference number for the application. If the analyst needs additional information they will send the aviator a Request for Information (RFI.) To avoid a delay in processing the waiver application, an RFI should be responded to as quickly as possible.
On average, a waiver application can be processed in about 30 days. However, because of the complexity of some applications, the FAA prefers that they be submitted at least 90 days before the start of the proposed operation. Waivers are not permanent and may be valid anywhere between one day and four years depending on the waiver requested. All waivers are published on the FAA website and viewable by the public. If a waiver application is denied, it is returned to the aviator with detailed information to help them understand why the waiver was denied.
Best Practices for Waiver Applications
Waivers, although often integral in commercial drone use, are not guaranteed. When applying for a waiver, visualize the planned operation and provide a detailed, complete explanation about expected hazards and your risk mitigation strategies. Include a thorough safety analysis that explains the processes and procedures that will be followed to ensure a safe operation. Approach this process as any aviator would, and make sure to include all common sense details.
For example, explain in detail conditions that an aviator often takes for granted, like seeing and avoiding other traffic and having sufficient fuel (battery life) before taking flight, and note the implications of these conditions in the context of drone use.
The FAA is very clear. If a waiver application does not include hazard identification and risk mitigation strategies, it will be denied, so use available resources easily found on the FAA’s website. Additional information on identifying and managing risks is available in the Wavier Safety Explanation Guidelines (WSEG) and the FAA’s Risk Management Handbook.
The most commonly sought waiver is night operation. In order to increase your chance at securing this waiver, the drone should be equipped with lights and a daytime survey of the planned night route should be completed. Another common waiver request is operating drones beyond the visual line of sight. To secure this waiver, elaborate on the drone’s technical specifications and how it will be able to sense and avoid traffic conflicts.
Commercial Use and Operation of Drones
Drones have become expected for use in some industries, such as construction, where clients now can receive weekly or daily pictures, modeling, and data on a project’s status. As a result, many companies now have departments of drone operators who are licensed by the FAA to operate under Part 107. Many do not require waivers, including those where drones are operated over construction projects which are totally within the controlled area of the contractor, and where daytime operations are in sight.
Thinking like an aviator when developing and implementing drone policies and procedures in commercial operations is the gold standard for decreasing drone operational risks. Many commercial drone operations use Drone Operations Handbooks (DOH), which include operation guidelines that go beyond Part 107 requirements. One example is for a DOH to require the filing of a flight plan before each commercial drone flight, and that flight plan be approved by the FAA.
Thinking like an aviator when developing and implementing drone policies and procedures in commercial operations is the gold standard for decreasing drone operational risks.
Insuring drones for commercial use is also a way to manage operational risks. Insurers of commercial drone operations consider various factors including the drone operations/industry, drone specifications, flight environment (e.g. inside flights vs. outside flights), claim rate, waiver use, and whether a commercial drone operation has internal drone policies and procedures/DOH which will decrease operational risks. Insurers many times provide guidance to operators in the form of example policies and procedures and pre-flight checklists.
Concerns as to drone operations can be property damage, personal injury or death, or third-party privacy claims. Having prudent operating policies and procedures, having a DOH and thinking like an aviator as to commercial applications tends to decrease the risk in drone operations.
Reprinted with permission from the May 8, 2019, edition of Texas Lawyer. ©2019 ALM MediaProperties, LLC. All rights reserved. Further duplication without permission is prohibited.
Litigation partner Katherine A. Staton serves large and small aviation and corporate clients and companies in Texas and nationally. She is a CPA and represented plaintiffs before joining Jackson Walker. She is also a private pilot, owned an aircraft, and she completed an aircraft engine course to better understand her clients’ operations and case issues. This diverse background gives Katherine an advantage in understanding complex litigation issues, assisting clients with buying and selling aircraft, and helping clients with strategic decisions and challenging legal issues.
Morgan E. Schweinzger is an associate in the aviation section of the Dallas office. Prior to joining Jackson Walker, Morgan was an intern for Republic Airways and American Airlines. Morgan also worked for Southwest Airlines as an analyst in both Flight Operations and Regulatory Programs & Compliance. Morgan is a Certified Flight Instructor and Commercial Pilot.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.