Commentary: Paul Fraidenburgh, Esq.
Avionics Today, March 27, 2015
The FAA has introduced an interim policy that will slash some red tape for Unmanned Aircraft System (UAS) commercial operators. Under the new policy, the agency will grant operators who have already received Section 333 exemption a “blanket” Certificate of Waiver or Authorization (COA) for flights at or below 200 feet. This means UAS pilots can fly relatively freely up to 200 feet outside of restricted airspace in a move that will hopefully ease some frustration and spur innovation.
The interim policy isn’t legislation exactly, but it is a change from previous operations, under which an operator had to apply for a COA for a particular block of airspace even after receiving an exemption, approval for which could take up to 60 days.
“The agency expects the new policy will allow companies and individuals who want to use UAS within these limitations to start flying much more quickly than before,” the FAA press release on the new COA states.
The industry is positive about the change as well. According to Paul Fraidenburgh, an associate at Buchalter Nemer who routinely represents UAS operators, those who already had Section 333 exemption found that applying for a certificate so far in advance for commercial operations was unrealistic and prohibitive.
“Essentially what commercial operators were running into is that they would go through the lengthy process of filing an exemption under Section 333, requiring them to jump through the hoops, do it the right way, show the FAA what they plan to do and how they can do it safely. But after the FAA granted their exemptions, when they actually went out to book a job, the COA process stood in the way. If a film studio calls you and asks you to help shoot a major motion picture next Tuesday, the answer had to be no because of this very cumbersome COA process,” said Fraidenburgh, noting that with all the exemption and COA requests coming in it was difficult for the FAA to keep up and grant the requests quick enough for industry.
Operators that were trying to keep in line with the law were also seeing difficulty even if they did file requests two months prior to operations.
“For many industries using UAS, it is not feasible to know the exact date, time, and nature of the operations many weeks prior to operating. The COA process requires you to submit detailed information regarding exactly which aircraft you’ll be using, the pilot, and the location,” said Fraidenburgh. “Whether we’re talking about film and television, real estate, mining, flare stack inspection, or any of the hundreds or thousands of commercial uses of UAS technology, none of those industries can afford to move that slowly.”
Still, the policy comes with its own set of restrictions. It only applies to aircraft that weigh less than 55 pounds, operate during daytime Visual Flight Rules (VFR) conditions, operate within Visual Line of Sight (VLOS) of the pilots, and stay certain distances away from airports or heliports. The FAA laid out these distances on its site at:
• 5 nautical miles (nm) from an airport having an operational control tower; or
• 3 nm from an airport with a published instrument flight procedure, but not an operational tower; or
• 2 nm from an airport without a published instrument flight procedure or an operational tower; or
• 2 nm from a heliport with a published instrument flight procedure.
While the policy is a step in the right direction, Fraidenburgh believes these conditions still prohibit operations immensely.
“If you were to take all of those parameters and layer them on a map, what you would realize is that it doesn’t leave a lot of places to actually conduct these operations for which a COA is not required, that’s the difficulty here,” Fraidenburgh said. “What I’m seeing is that in most industries this new interim policy will not apply to 50 percent or more of operations — depending on exactly what type of operations you’re doing, of course — and the reason is the distances from airports or heliports.”
Still, the new policy promises to alleviate pressure for both the FAA and operators when it comes to running safe and profitable commercial UAS operations. It also takes a step in the direction of the proposed legislation in the FAA’s Notice of Proposed Rulemaking (NPRM) regarding UAS, which, while it won’t be instituted for years to come, much to the frustration of the industry, will likely offer less stringent policy.
“In a way, it’s moving toward the implementation of the NPRM as proposed,” said Fraidenburgh. “They’re looking at how to make a smooth transition from operations under 333 to operations under the NPRM. This is one step that helps them with that.”
With the NPRM on the horizon and UAS regulation still far off, restrictions should continue to ease in the future as both operators and regulators come to understand the rapidly advancing tech and how to fly it safely in U.S. airspace.
“The previous system didn’t work for anybody,” said Fraidenburgh, referencing both operators and the overloaded FAA. “This will absolutely allow people to be more innovative, it will allow more testing and it will allow more creativity rather than having a rigid flight plan and pre-approval of operations. This allows commercial operators holding a Section 333 exemption to go out to uncontrolled airspace and innovate.”