The Federal Aviation Administration (FAA) has long been studying the promise and perils of small unmanned aircraft systems (“UAS”), a.k.a drones. The commercial potential of UAS technology is clear. Businesses are eager to use UAS to do everything from covering traffic accidents to taking real estate and wedding photos to delivering small parcels. However, the FAA currently prohibits any commercial or business use of UAS, unless the operator obtains specific permission from the FAA. Permission is only granted on a case-by-case basis, greatly restricting businesses from adopting UAS.

This framework remains in place, but the FAA has now issued a Notice of Proposed Rulemaking (NPRM). If adopted, the proposed rules would provide some rules of the sky for UAS and real regulatory relief to businesses. However, estimates are that adoption of even these first-step rules may be as far as two years out.

The FAA’s proposed rule would set forth several requirements as to operator certification, airworthiness, registration, and operation. As to operation, potentially significant restrictions include a requirement that UAS only operate in the daylight at or below 500 feet above the ground; that the operator maintain a line of sight with the UAS during operation; and that an operator only operate one UAS at a time. Drones would not be allowed to fly over any people not directly involved with the operation of the drone.

Currently, prospective commercial drone operators are required to hold at least a private pilot certificate. That would change under the new rules. Commercial UAS operators will need to pass an FAA knowledge test and pass biennial knowledge exams. Transportation Security Administration approval will also be required under the rules. Commercial drone operators will not be required to undergo an FAA medical exam.

The FAA rules do not call for the imposition of airworthiness requirements on drones, but they will be required to register with the FAA, and they will carry N numbers like other aircraft. The pilot will need to do a preflight inspection before every flight, and accidents must be reported.

The proposed rule would not apply to:

“(1) air carrier operations; (2) external load and towing operations; (3) international operations; (4) foreign-owned aircraft that are ineligible to be registered in the United States; (5) public aircraft; (6) certain model aircraft; and (7) moored balloons, kites, amateur rockets, and unmanned free balloons.”

As to privacy, the FAA notes:

“The FAA also notes that privacy concerns have been raised about unmanned aircraft operations. Although these issues are beyond the scope of this rulemaking… the Department and FAA will participate in the multi-stakeholder engagement process led by the National Telecommunications and Information Administration (NTIA) to assist in this process regarding privacy, accountability, and transparency issues concerning commercial and private UAS use in the NAS. We also note that state law and other legal protections for individual privacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS.” At the same time that the FAA released this NPRM, the White House issued a Presidential Memorandum to all federal agencies, setting forth administration priorities for the NTIA process and all agency rulemaking.

Comments to the FAA’s NPRM will be open for 60 days after it is published to the Federal Register.