As the FAA prepares to issue final commercial drone regulations, and the FAA Reauthorization Act of 2016 (the “FRA”) heads to the House of Representatives for deliberation, this past week the FAA quietly issued a historic decision, approving commercial drone flights at night.

In a previous article, we analyzed Cape Productions, Inc.’s (“Cape”) petition to amend its Section 333 exemption to relax the requirement of the 500 foot operating distance from people.[1] After reviewing Cape’s safety record and its plans to mitigate risk, the FAA granted the amendment. We noted that the Cape case raised an interesting question about what other restrictions the FAA may be willing to relax for Section 333 exemption holders that will go the extra mile for safety. That seems to be the case here.

Previously, drones could not be operated commercially at night as the FAA has said that “any operations of drones after sunset would have to wait until further tests, analyses, and formal rules were completed.” See, e.g., Astraeus Aerial FAA Grant of Exemption, p. 28 (“UAS operations may not be conducted during night, as defined in 14 CFR § 1.1”); 14 C.F.R. § 1.1 (“Night means the time between the end of evening civil twilight and the beginning of morning civil twilight, as published in the American Air Almanac, converted to local time.”); But see FAA Order 8900.1 16-5-3-7-I-2-a, Operational Requirements For UASs (“Night operations may be considered if the operator/applicant provides a safety case and sufficient mitigation to avoid collision hazards at night.”).

Of the more than 4,000 Section 333 exemptions granted by the FAA to date, all were for daytime operations. But on April 18, 2016, the FAA approved Industrial SkyWorks’s (“SkyWorks”) petition to conduct night operations for the purpose of building inspections using the Aeryon SkyRanger drone. Taking nearly a year and a half to assess and process SkyWork’s request, the FAA’s decision sets an important precedent for others to follow.

Attached to that grant of exemption, however, are several strict conditions and limitations for conducting operations during night:

  • All flight operations must occur within 100 feet of the boundaries of a permanent structure and no higher than 400 feet above ground level.
  • The drone must be equipped with anti-collision lighting visible for at least 5,000 feet.
  • The pilot in command (“PIC”) must hold an airline transport, commercial, or private pilot certificate, and a current FAA airman medical certificate. (Note: Holders of a recreational or sport pilot certificate are not permitted to operate aircraft at night).
  • The drone must be equipped to inform the PIC of accurate position, altitude, attitude, speed, and heading of the aircraft throughout the flight operation.
  • The petitioner must conduct a daytime site assessment to note hazards and obstacles that may be difficult to see in low light conditions.
  • The PIC and visual observer must be in place 30 minutes prior to night operations to ensure dark adaptation.
  • The take-off and landing areas must be lighted to allow the PIC to see the distance between the aircraft and ground during takeoff and landing and enabling the observer to monitor that non-participants remain at a safe distance.

These requirements are much stricter than those for flying drones during the day time. The FAA believes such strict requirements are needed to help ensure the safety of aircraft operations conducted at night. The FAA notes “operations at night pose a higher safety risk because the reduced visibility makes it more difficult for the remote pilot to visually locate the [drone] and determine the relative separation with other aircraft [to] avoid a collision.”

As noted above, the SkyWorks decision comes on the heels of the passage of the FRA in the Senate. Relevant for our purposes is Section 2126 of the FRA. That section would “reauthorize and expand exemption authority…for…the FAA to approve nighttime and beyond-line-of-sight operations” for commercial purposes using a risk-based approach. Congress hopes that this provision will help foster innovation in the drone industry.

Even with the Section 333 exemption, there are stringent conditions imposed by the FAA that limit what exemption holders can do. But the Cape and SkyWorks decisions illustrate that there is some flexibility with that process as more and more the case with the FAA seems to be “you never know unless you ask.” The key in both cases is the development of a detailed plan to address whatever safety concerns the FAA may raise.