Hogan Lovells assists Percepto to secure precedent setting FAA decision with major ramifications for the broader commercial drone industry

Rapid advancements in automation technology continue to make drones smarter, safer and more efficient. New technologies are making it possible for drones to be operated by pilots remotely from offsite locations. The ability to remove pilots from the field can significantly increase the efficiency and ease of operation for a wide variety of commercial drone operations, particularly localized operations that are continuous and ongoing, as well as operations occurring in remote and rural environments.

To ensure safety, drone pilots have a regulatory obligation to conduct a variety of preflight checks to ensure the drone is functioning properly and that the planned area of operation is safe for the intended flight. To meet this requirement the FAA has historically mandated the presence of a pilot who is physically co-located onsite with the drone. Companies seeking to conduct BVLOS drone operations using a remotely located pilot have therefore needed to petition the FAA for an exemption from the preflight check requirements in addition to a Part 107 waiver. The exemption process is overly burdensome, not commensurate with the risk of the operation, and often takes a year or more to complete.

In a precedent setting Denial of Exemption issued to Percepto on January 12, the FAA revisited its prior decision and determined that Percepto did not need an exemption from 14 CFR §§ 107.15 and 107.49 because the virtual preflight procedures used by the remotely located pilot allowed Percepto to comply with the preflight check requirements. The FAA determined that there is “no difference in the quality or consistency of the results of a preflight that meets the plain language of 14 CFR § 107.15 and 107.49, regardless of whether it occurs in-person or virtually.”

This decision is a significant win for Percepto and for the commercial drone industry more broadly, particularly as the industry continues to incorporate increasingly automated technologies that do not require the presence of an onsite pilot. It is also a win for the FAA since it will free up staffing resources to focus on other important rulemaking efforts needed to scale commercial drone operations in the United States. 

Moving forward, other commercial drone operators using similar virtual preflight inspection procedures may also comply with §§ 107.15 and 107.49 without the need to obtain an exemption. The FAA stated that it intends to issue guidance material to help other operators comply with §§ 107.15 and 107.49 by using virtual preflight inspection.

Percepto Vice President for Policy and Government Affairs Neta Gliksman said: “Percepto is thankful for the FAA’s engagement and consideration of our concept of operations and technical information to reach this groundbreaking result for Percepto and the broader UAS industry. We are thrilled with an exemption denial and look forward to bringing significant benefits of scalable BVLOS UAS operations to the US critical infrastructure industry as we continue working with the FAA.”

Hogan Lovells partner Lisa Ellman, who leads the firm’s Uncrewed Aviation Systems practice, said: “It is not often that an exemption denial sets a positive precedent for the commercial drone industry, but the FAA’s common-sense decision here is a win for Percepto and the commercial drone industry more broadly. In the short term, this decision will help streamline the regulatory process for other operators seeking to conduct highly-automated BVLOS operations without human pilots onsite.  In the longer term, the industry looks forward to a BVLOS rulemaking that will eventually make these case-by-case approvals unnecessary.”

In addition to Ellman, Washington, D.C.-based counsel Patrick Rizzi and senior associate Matthew Clark also advised Percepto.