The FAA took some major steps forward regarding commercial drone use in 2016, and the trend is likely to continue into 2017. After issuing new rules and regulations that eased the regulatory burden of commercial drone use in the summer of 2016, the FAA has signaled its intent to permit limited flights of small drones over people. This could significantly increase the feasibility of practical commercial applications, such as using drones for inspections over active construction sites, industrial surveillance, home delivery, and residential utility line inspections.

The current regulation regarding the operation of drones over people is quite strict. It reads:

No person may operate a small unmanned aircraft over a human being unless that human being is:

(a) Directly participating in the operation of the small unmanned aircraft; or

(b) Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.1

Under existing law,2 companies may apply for and obtain a waiver to fly drones over people. However, the approval of any waiver lies within the sole discretion of an FAA administrator, and the applicant must provide sufficient grounds for the administrator to "find[] that a proposed small UAS operation can safely be conducted."3 To-date, the FAA has granted only 228 of these waivers, mostly for operating drones at night, but only one (1) waiver has been granted for the operation of drones over people.4

In November 2016, the FAA hinted at its intention5 to loosen the above restrictions by sending a new notice of proposed rulemaking to the Office of Information and Regulatory Affairs (the "OIRA") at the White House for preliminary review. The rule was originally anticipated to be released by 2016, but the FAA has recently backtracked on the release, stating that the new rule is "taking time."6 This may be due to the privacy and safety issues involved with regulating drones over public places like open-air concerts or festivals, and that might hinder progress in areas where those issues might be easier to address, like semi-controlled areas including construction sites or utility easements.7 Now may be a time for interested parties in those industries to push for an interim rule, or a proposed rule, that takes their ability to control the situation on the ground into account.

Even though the contents of the new proposed rule have not been released to the public, the FAA has stated that it will:

address the performance-based standards and means-of-compliance for operation of small unmanned aircraft systems (UAS) over people not directly participating in the operation or not under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft. This rulemaking would provide relief from certain operational restrictions implemented in the Operation and Certification of Small Unmanned Aircraft Systems final rule (hereinafter the sUAS Operation and Certification rule).

What Can Commercial Drone Users Expect in 2017?

The Federal Register notice regarding the proposed rulemaking indicates the new rules will set standards and prescribe procedures for those wanting to operate small drones over people. The FAA has not indicated the specific performance-based standards it will impose with the new rules, but it is possible the new standards will be based on the standards that the FAA is currently using under Part 107.8 Some of the performance standards that could make their way into the new rules might require companies wishing to utilize commercial drones over people to do the following:

  • Create a safety plan that can demonstrate any drone malfunction will not cause injuries to non-participating persons on the ground;
  • Conduct a risk assessment and testing of drone programs, and be able to provide the FAA, if requested, with comprehensive data that addresses the design features and operational limitations of drones or drone fleets;
  • Ensure there is limited or no risk to customers or bystanders due to a drone's rotating parts and sharp edges; and/or
  • Demonstrate that pilots or operators of drones or drone fleets have the adequate knowledge, experience, and ability to safely operate drones over non-participating persons, including demonstrating that pilots or operators have recent flight experience.

It is also possible the FAA might require specific technology to be utilized in flights over people. Some of this technology might come in the form of requiring:

  • A certification by the drone manufacturer that the drone has undergone rigorous inspection and safety testing;
  • Multiple backup batteries;
  • Six or more motors;
  • Six or more separate rotors;
  • A backup radio link;
  • An "auto-hover" or "return-to-home" feature if connection is lost between the drone and the operator; and/or
  • Software and hardware requirements to prevent hacking and unauthorized use of sUAS, and to prevent flights into unauthorized or protected areas.

In addition to complying with the forthcoming performance-based standards and any technology requirements that will make their way into the new rules, it will also be critical in 2017 for companies wishing to utilize commercial drone flights to adopt a written privacy policy and to adhere to best privacy and security practices in the drone industry. These practices will likely include:

  • Abstaining from collecting unnecessary personal information when there is a reasonable expectation of privacy;
  • Destroying any unnecessary personal information that has been recorded or stored by drone flights;
  • Minimizing the flight of drones over private property;
  • Establishing processes or programs by which the public can request deletion of stored personal information;
  • Requiring industry-approved training for drone operators;
  • Collecting, reporting, and tracking incident data;
  • Requiring mandatory pre-flight inspections and checklists; and/or
  • Displaying signage or ground warnings about overhead operations when feasible.

The proposed regulations will create the potential to influence manufacturing and operation costs for commercial drones. Once the proposed rules are released, they will be open for public comment for a period determined by the FAA, likely 60 days. Companies who could benefit from using small drones over people should consider whether they wish to make an official comment on the new proposed rules once they are issued.