The Federal Aviation Administration on Tuesday released a new interim policy governing the use of certain small drones for commercial purposes, issuing a blanket authorization for unmanned aircraft flights below 200 feet. But the new rules won’t benefit everyone equally. The new policy only applies to the roughly 45 companies that have already obtained permission to fly through the FAA’s slow and stringent “Section 333” process.
Under existing FAA rules, there are two ways to gain clearance for unmanned aircraft system (UAS) operations. One can apply for a Certificate of Waiver or Authorization (COA), which typically grant government agencies or research institutions permission to use drones under fairly restrictive circumstances, usually for research. Businesses can also apply for permission to use drones through what’s known as Section 333 of the FAA Modernization and Reform Act of 2012, under which the FAA can grant companies approval to fly drones commercially under certain defined parameters.
The FAA has approved only 53 Section 333 applications for roughly 45 companies thus far. Some 600 applications are still pending, stuck in a slow-moving approval pipeline. The FAA’s new policy grants any company or entity that has already cleared the Section 333 approval process a blanket COA to fly below 200 feet. In other words, those companies that are already approved to fly under Section 333 now have blanket approval to fly below 200 feet.
If all that sounds a bit confusing, here’s what it really means: If you weren’t authorized to fly before, you still can’t. But for those with Section 333 exemptions, the FAA just slashed through a whole lot of red tape. Section 333 exemptions come with a lot of bureaucratic baggage. For instance, users that simply want to test a new flight software patch or use a drone to inspect something no higher than a power line have to file flight plans with the FAA. The blanket COA essentially allows those same companies to operate much more flexibly and without so much government oversight provided they’re willing to keep their aircraft below 200 feet.
“Previously, companies that hold exemptions from the FAA still have to obtain additional air traffic control authorization for each operation,” says Brendan Schulman, head of the UAS practice group at the NYC office of Kramer Levin Naftalis & Frankel. “That approval takes on average about three weeks, which for many business applications is just not fast enough. This new policy will allow those companies to skip that step if they are operating at or below 200 feet altitude, and at certain distances from airports.”
That’s a significant improvement over the current rules, Schulman says, removing a burden from both businesses and the FAA itself, which has to process all those flight plan applications. It’s a welcome development for the companies that already have Section 333 exemptions, says Lisa Ellman, chair of the UAS practice group in the D.C. office of McKenna, Long, & Aldridge and a former drone policy advisor to the Obama administration. But for the hundreds of companies still in FAA-approval limbo, the new rules do little to bolster their businesses.
The FAA is sensitive to the needs of business and the slow approval process, Ellman says, but with just 10 full-time staff available to process the Section 333 applications—each of which is quite complex—the going will likely remain slow. “I know from the FAA side that they feel constrained,” she says. “They feel like as a legal matter—and this is coming from their chief counsel’s office—that they have to review each exemption one by one.”
The hope is that with more commercial drones in the air as a result of the new blanket COA policy that increased FAA confidence in specific drone platforms and use cases will help speed along the approval process, at least until a final set of commercial drone rules is put in place sometime in the next couple of years. Says Ellman: “The hope is now that these different safety cases have been established—for industrial inspection, real estate, precision agriculture, and so on—that the process will start to move more quickly and they’ll be able to grant these approvals in a more timely way.”
