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    Unmanned Aircraft Systems Blog | UAS Blog
    Pillsbury Secures First-ever FAA Exemption for Drone Flights after Dark

    Unmanned Aircraft Systems (UAS)


    Kenneth P. Quinn

    Jennifer E. Trock

    Daily news reports of Unmanned Aircraft System (UAS) developments reflect the ever-changing and growing landscape of UAS in the United States and demonstrate that industry growth has outpaced safety and privacy regulations. With the recent publication of the FAA’s first small UAS (sUAS) rule, to be codified in 14 C.F.R. Part 107 and to take effect on August 29, 2016, the commercial, regulatory, and operational landscape for UAS is more defined but will likely continue to evolve over the coming months and years. As UAS continue to proliferate and develop, they create new and safer opportunities for a wide range of industries—from utilities to mining to journalism—and have the potential to revolutionize businesses.

    Pillsbury’s UAS team is composed of lawyers who are authorities on the relevant legal and regulatory issues facing the UAS industry, from aviation to privacy, security to communications, and trade controls to insurance. We serve as legal counsel to a number of world-class companies and universities that are actively seeking to leverage and realize the full commercial potential of UAS. We also counseled businesses and associations on comments to the FAA’s proposed rules for the commercial operation and certification of sUAS, which will now shape the UAS landscape for years to come. Further information and analysis of the sUAS rule may be found in Pillsbury’s Client Alert.

    An Unparalleled Range of Experience

    With strong industry and government relationships, our lawyers are focused on helping the UAS industry develop safe, carefully considered policy and rules for both public and private UAS operations. Pillsbury’s UAS team provides guidance on the licensing and operation of UAS to clients in multiple industries, including:

    • Mining
    • Commercial Building Inspections
    • Electrical and Nuclear Utilities
    • Higher Education/Research & Development Applications
    • News & Entertainment
    • Telecommunications
    • Retail
    • Professional Sports Teams
    • UAS manufacturers

    Our UAS Focus Team members include internationally renowned lawyers in:

    • Aviation – Pillsbury’s Aviation, Aerospace & Transportation: Ranked Tier 1 in the latest Chambers USA 2016.
    • International TradeChambers USA rates the firm’s International Trade practice as top-tier, and both Chambers USA and Chambers Global rank three of its partners as leading lawyers in the area of International Trade.
    • Communications Chambers Global recognizes our Communications/FCC practice as one of the best in the world.
    • Privacy/data security – Both Best Lawyers/U.S. News and World Report and Chambers USA rank Pillsbury lawyers as top practitioners in this vitally important field.
    • Technology – Pillsbury is nationally ranked by Chambers USA and Chambers UK in the practice area of Information Technology.
    • Interactive Gaming – Our firm’s Social Media practice is among the most highly ranked in the United States (listed among nation’s top three practices by Interactive Age).
    • Insurance Recovery & Advisory – Pillsbury’s Insurance Recovery & Advisory practice has recovered more than $10 billion of insurance policy proceeds—more than $1 billion in 2013 alone—for our policyholder clients. Members of the practice are consistently ranked by Best Lawyers, Chambers USA and Legal 500.

    Early Adopters and Immeasurable Opportunities

    Whether it is helping natural resource companies survey mines, oil and gas companies monitor pipelines and inspect flare stacks, farmers improve crop yields, commercial building inspectors conduct roof inspections, or universities advance scientific research, UAS are capable of saving time, money and, most importantly, lives. Below is a small list of the industries devising methods to use UAS to increase operational effectiveness, mitigate risk, reduce operating costs and maximize return on investment.

    • Industries that rely on surveying or high-resolution imagery—from the oil and gas sector to agriculture.
    • Industries concerned with safety and security—from construction to nuclear power to historic preservation. For example, in Peru archeologists are using UAS to map archeological sites and protect them from vandals.
    • Industries interested in delivering goods and services. This includes retailers such as Amazon as well as governmental and nonprofit organizations. For example, the Bill & Melinda Gates Foundation is funding research into deploying UAS to deliver health care supplies to areas made inaccessible after disasters.
    • Industries that want to provide services in areas that are difficult to access or in which infrastructure cannot support ground-based solutions. High altitude, long endurance UAS can be used to provide internet access in remote areas.

    A Developing Regulatory Landscape

    With the Federal Aviation Administration Modernization and Reform Act of 2012 (FAA Modernization and Reform Act), Congress tasked the FAA with safely integrating UAS into the National Airspace System (NAS) by 2015. The FAA has taken an incremental approach to UAS integration and announced the first rule for commercial operations of sUAS in the national airspace on June 21, 2016.

    The first major domestic UAS users were public institutions (e.g., public universities) and public agencies, both state and federal. In September 2014, the FAA began permitting commercial sUAS operations by issuing exemptions authorized under Section 333 of the FAA Modernization and Reform Act, commonly referred to as Section 333 exemptions. Section 333 exemptions have been issued to a wide range of industries, including movie production, agricultural, construction, real estate, surveying/photography, and oil/gas. After August 29, 2016, when the sUAS rule takes effect, this special exemption will no longer be required. In the meantime, current Section 333 exemption holders may continue operating under the terms and conditions of the existing until its expiration or conduct operations under Part 107 as long as the operation falls under Part 107. Further information regarding the sUAS rule and Section 333 exemptions may be found in Pillsbury’s UAS Blog.

    Part 107 permits commercial operations of sUAS weighing less than 55 pounds as long as pilots abide by the required safety restrictions, including, among others:

    • Operations only within visual line of sight (VLOS);
    • No operations over non-participants;
    • Daytime operations only or civil twilight operations with the appropriate lighting;
    • Maximum airspeed of 100 mph; and
    • Maximum altitude of 400 feet above ground level or within 400 feet of a structure;

    The rule permits the transportation of property for compensation or hire, provided that: the aircraft’s total weight, including payload, weighs less than 55 pounds; the flight is conducted within VLOS; and the flight occurs wholly within the bounds of a state.

    The rule requires the sUAS operator to hold a remote pilot airman certificate with an sUAS rating. To attain a remote pilot certificate, the operator must be at least 16 years of age, be vetted by the Transportation Security Administration, either pass an aeronautical knowledge test at an FAA-approved training center or hold a Part 61 pilot certificate, complete a flight review within the previous two years, and complete a sUAS training course.

    With this first rule, the FAA has taken a big step toward formally integrating UAS into the NAS. The rules reflect the FAA’s risk-based approach to integrating UAS, addressing commercial operations that pose the least amount of risk with minimal requirements and limitations while leaving the door open for future requirements specific to UAS under 4.4 pounds, also known as “micro” UAS. A waiver mechanism allows the FAA to permit operations outside the Part 107 restrictions, including beyond-visual-line-of-sight and nighttime operations, to be assessed on a case-by-case basis if the applicant can demonstrate that the operation sought can safely be conducted under the terms of a certificate of waiver.

    As the FAA continues to shape the UAS regulatory landscape, key privacy, spectrum, environmental, security, and other questions surrounding UAS remain far from resolution. Among the most noteworthy issues is the lack of privacy provisions associated with the operation of drones. The White House tasked the National Telecommunications and Information Agency with establishing a multi-stakeholder engagement process to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private UAS use in the NAS. Stakeholders at the May 18, 2016 meeting agreed to conclude the process, and a diverse group of stakeholders came to consensus on a best practices document. The document can be found here.

    Those considering using UAS commercially also should consider liability issues arising from incidents or malfunctions that cause injury to people and/or damage to property. In addition, companies should consider addressing privacy, security, and spectrum issues.

    Pillsbury is helping clients anticipate and navigate the many legal issues at play so that they may position themselves to influence and take full advantage of the evolving UAS regulatory, legislative and technological landscapes.

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