Part 107 Progress Report: How's It Going?

It's now been almost two months since Part 107, the Federal Aviation Administration's (FAA) new rule for the first time broadly authorizing commercial drone operations in the United States, went into effect. The commercial drone industry has hailed the rule as a critical step forward, and indeed it is. Drone operations that comply with the rule's flight restrictions – including generally traveling no higher than 400 feet, within visual line of sight, away from people and during daytime hours – can now benefit a range of industries in innovative ways.

But the operational limitations of Part 107 are actually quite strict; amongst other conditions, one must operate a drone within visual line of sight, during daytime hours, and away from people. Meanwhile, to take advantage of the safety and efficiency benefits of drones, companies need to be able to fly in urban and suburban environments, where people are. To inspect pipelines and railroads, they need to be able to fly beyond visual line of sight. To respond to disasters, they need to be able to fly at night.

The Part 107 waiver process was established by the FAA to allow safe flights in these conditions to move forward. The ability for businesses to seek a waiver for operations beyond the scope of Part 107 is important, but the existence of the process is not sufficient in itself. As we have urged elsewhere, it is critical that the process for obtaining waivers under Part 107 be streamlined, user-friendly, and effective. It must result in approved waivers for the industry. And the substance of the Part 107 waiver approvals must reflect real-world operations, moving beyond the current operating envelope to reflect a common sense view of the world.

Now that the FAA has been processing these waiver requests for a few months, and since the agency has begun reviewing airspace authorizations for drone operators seeking to operate in controlled airspace, it is fair to ask how the process is going. The FAA earlier this week issued a press release updating the public on progress. According to the FAA, as of October 24, 2016, the agency has issued 36 waivers of Part 107 provisions to drone operators who applied after the rule's effective date, and approved 81 authorizations for flights in Class D and E airspace. This is a small percentage of applications that have actually been filed. The FAA notes:

"…The agency has found that many applications have incorrect or incomplete information. Many applicants request too many waivers or request waivers for flights in types of airspace for which the FAA is not yet granting approvals. As a result, the agency has had to reject 71 waiver requests and 854 airspace applications."

Some companies have received waivers, successfully demonstrating that it will operate at an equivalent level of safety as operations flown under Part 107. CNN received the first-ever approval to fly drones over people. Nightingale Intelligent Systems and Airobotics received approval to fly drones at night. These approvals required detailed qualitative and, at times, quantitative analyses to demonstrate safety to the FAA.

While it is up to the FAA to streamline the process, it is up to industry to provide the FAA with the information it needs to realize an equivalent level of safety to Part 107 operations. The FAA has published guidance on how to meet performance-based standards for safe operations. It is wise for any applicant to review these standards in depth, and consider how your own vehicle and operational mitigations will enable you conduct safe operations with your drone.

Additional rulemakings are forthcoming which will eventually authorize drone operations over people, beyond visual line of sight, and at night – but these rules are still a year or more away. We have advised several companies on their successful efforts to obtain Part 107 waivers, and we are happy to help you as well.

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