Unmanned aircraft operating commercially in the NAS

Learn conditions, limitations

With hundreds of unmanned aircraft operating within the National Airspace System (NAS) and more on the way, aircraft owners and pilots can help maintain flight safety by familiarizing themselves with the conditions and limitations that Congress and the FAA have placed on unmanned aircraft system (UAS) operations.  

While unmanned aircraft operations solely for hobby or recreation purposes must meet certain statutory requirements and are subject to the FAA’s special rule for model aircraft, use of a UAS for a commercial or business purpose places the operator in a different regulatory landscape.   

Under the FAA’s current view, commercial operations include any flights that are in furtherance of a business, incidental to a business, or not conducted strictly for hobby or recreational purposes. Whether the sale of pictures or videos captured in flight by a UAS constitutes a commercial operation will depend on the original intent of the flight.

According to a recent FAA memorandum titled Media Use of UAS, if an individual takes pictures or videos as part of a hobby or recreational UAS activity, a later decision to sell those pictures or videos would not make the operation commercial.    

Until the FAA’s proposed regulations governing commercial UAS become effective, the most common method to obtain authorization to operate a UAS commercially is to petition the FAA for a grant of exemption under Section 333 of the FAA Modernization and Reform Act of 2012. Each petition is evaluated by the FAA on a case-by case basis, and includes information such as the purpose of the intended operation, characteristics of the UAS, operating procedures, and an explanation as to how the proposed operations would not adversely affect safety and are in the public interest. To date, about 600 petitions have been granted.   

You may not expect some of the conditions and limitations that the FAA typically places upon the UAS, its pilot in command (PIC), and the operator. A review of a typical exemption granting the commercial use of a UAS to perform aerial surveying reveals approximately 30 conditions and limitations.  

Many are surprised to find that a grant of exemption requires the pilot in command (PIC) of a UAS, located at the ground control station, to hold at least a recreational or sport pilot certificate, as well as the necessary airmen medical certificate or driver’s license. Further, the PIC must meet the requirements of FAR 61.56, Flight review, in the manned aircraft in which the PIC is rated on his or her pilot certificate. With respect to the UAS that the PIC intends to operate, he or she must complete flights for training, proficiency, and experience building, with those flight hours logged in accordance with FAR 61.51(b), Pilot logbooks.    

Before a UAS may be flown pursuant to a grant of exemption, a UAS operator must obtain a certificate of authorization (COA). A COA makes local ATC facilities aware of UAS operations, allows ATC coordination, and also requires the operator to request a notam to alert other users of the NAS to the UAS activities being conducted. A COA may provide for UAS operations within Class C, D, E, and G airspace, as well as flights within 5 miles of an airport (a letter of agreement with airport management may also be obtained). 

A “blanket” COA is automatically provided along with a grant of exemption for flights at or below 200 feet AGL for aircraft that weigh less than 55 pounds, operate during daytime visual meteorological conditions under visual flight rules, operate within visual line of sight of the PIC and a safety observer, and stay certain distances away from airports or heliports (5 nm from an airport with an operational tower; 3 nm from an airport with a published instrument flight procedure but no operating tower; 2 nm from an airport without a published instrument flight procedure or an operational tower, or a heliport with a published instrument flight procedure.  

To conduct any operations outside the blanket COA, a request must be made to the FAA to issue a COA for the particular block of airspace. Operators may request flights up to the maximum altitude specified in the grant of exemption, typically 400 feet agl.  

As a condition of the grant of exemption, unmanned aircraft must remain clear and give way to all manned aviation operations and activities at all times. The unmanned aircraft must be identified with a registered N number, and the pilot in command must establish and maintain direct two-way radio communication with appropriate ATC facilities as required by the federal aviation regulations or COA. 

Perhaps as a relief to those with privacy as well as safety concerns, a grant of exemption typically mandates that all flights of the unmanned aircraft will be conducted at least 500 feet from all nonparticipating persons, vessels, vehicles, and structures. Before commercial UAS operations may be conducted over private property, permission must be obtained from the property owner. 

From an airworthiness perspective, Section 333 excludes UAS from airworthiness certificate requirements under the federal aviation regulations, but operators are still required to maintain and inspect the UAS in accordance with the manufacturer’s requirements, and must perform preflight inspections. With respect to flights of these commercial UAS that do not go as planned, any incidents must be reported to the FAA, while accidents must be reported to both the FAA and National Transportation Safety Board. 

Unless otherwise specified in the grant of exemption, the UAS, pilot in command, and operator must comply with all applicable federal aviation regulations.

Jared Allen
Mr. Allen is AOPA’s Legal Services Plan (LSP) senior staff attorney and is an instrument-rated private pilot. He provides initial consultations to pilots through the LSP when the FAA has contacted them about potential FAR violations. Jared has helped numerous pilots successfully navigate through compliance actions.
Topics: Airspace, Pilot Protection Services, AOPA Products and Services

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