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The question of whether a UAS can be operated as a public aircraft is a very serious issue for state and local governments.  Public aircraft are exempt from many of the rules and regulations that govern commercial (i.e., civil) aircraft operations.  However, just because an aircraft is owned by the government does not automatically make it a public aircraft.  The aircraft must also be flown iN support of a core governmental function.

Last year, the FAA’s counsel’s office seemed to definitively state that a UAS flown to inspect government infrastructure was a core governmental function and could be done by a public aircraft.  In its opinion to the Tennessee Valley Authority, FAA counsel reasoned that:

the FAA finds that public works projects such as the inspection and maintenance of dams, waterways, bridges, and roads may all be characterized as valid governmental functions when the projects belong to and are funded by a governmental entity, and the operations do not also constitute a commercial purpose. Similarly, a government entity may conduct a public aircraft operation using a UAS for the purpose of conducting a mandatory code inspection of a construction project.

As a result, the FAA told the TVA that they could use UAS to inspect their “39 dams and the numerous waterways connected to them.”

It appears, however, that not all infrastructures are created equal, and that there are exceptions to what appeared to be a bright line rule.  Just recently, the Turlock Irrigation District in California was told that UAS inspections of the government-owned local power system would not qualify as a public aircraft operation.  The FAA agreed that the power company was a government entity, but stated that it was unable to conclude that “a ‘public power utility’ whose function is ‘providing safe, reliable and low-cost electric power'” could meet even an expanded test of governmental function.  The FAA’s position is that, at least on the state level, public aircraft operations are limited to only those “activities that are core functions necessary to operate as a state.”

That a state may choose to expand the reach of its own government to provide any number of services or goods for its residents is not at issue. But the actions of state legislatures to create entities such as public vendors of electrical power cannot be read to bind the terms of the public aircraft statute so as to allow any decision of a state legislature to be the basis for [Public Aircraft Operation].

This decision was followed just a few weeks ago by a similar request by the Salinas Airport to permit the use of public aircraft to inspect the municipal airport.  The FAA noted that “not everything” a government entity decides to do automatically becomes a valid governmental function.  The FAA then went on to conclude that it:

does not consider the operation of an airport to be a governmental function  . . . nor would the inspection of it using a UAS change that status. There is nothing basic to the core function of a state (or a political subdivision of a state) that supports the operation of an airport as a governmental function, nor the inspection of it using a UAS or a manned public aircraft.

The FAA went on to advise that, if the airport wanted to perform the inspections, it would have to:

do so as a civil operator and had to comply with 14 CFR Part 107, including the waiver provisions of §§107.200 and 107.205.   If the limitations on operation in Part 107 do not meet its needs, the city may apply for an exemption from the FAA as a civil operator.

So, based on these three decisions, it appears that the FAA is standing by a very restrictive view of “core governmental function.”  Public safety organizations, such as police and fire departments, clearly qualify.  Universities qualify, but only for certain types of work such as aeronautical research.  Dams and certain types of road and construction projects might qualify, but government-run airports and power companies apparently do not.  For now, it seems that the best course of action is, if in doubt, ask the FAA counsel’s office, because only they seem to know for sure.


UAS Webinar Series – Drones & Insurance: The Next Steps!

We would like to offer our thanks for the huge turnout we had for our free webinar on UAS Webinar Series – Drones & Insurance: The Next Steps!  For those of you who could not make it, we are providing a downloadable version of the slides used, as well as a link to the full presentation so that you can listen at your leisure.

UAS Webinar Series – Drones & Insurance: The Next Steps!


Today is a good day to go flying.  The sky is blue, the winds are calm, and Part 107 is now in effect.  Under the new system, commercial UAS operators can fly closer to people, closer to airports, and carry cargo.  They no longer need visual observers, can hand off control of their UAS to a second pilot while in flight, and can train non-pilots to fly.  They no longer need exemptions, COAs, or government review of the safety features of the make and model of aircraft.  Of course, no one is actually doing any of this today.

Over the past two months, the FAA has been doing all of the “behind the scenes” work to get the new systems up and running.  UAS pilot certificate tests and study materials had to be created.  Knowledge centers had to be prepared to give the tests.  The new waiver system had to be created, along with the entire infrastructure to handle the online submission of waiver petitions.  Procedures had to be worked out to handle UAS flight in class B, C, D and E airspace and how UAS pilots will interface with air traffic control.  The fact that any of this is ready to go on the first day is a major accomplishment.

Now that the FAA’s preparations are finished, the flying public can actually start making their own preparations actually use the system.  Pilots can start taking tests and getting their background checks.  Operators can learn how to get authorizations from air traffic control.  Businesses can start submitting waiver petitions for night flights or other, more advanced operations.  No doubt there will be a learning curve for both regulators and the regulated as they adapt to the new system, but we are confident progress will come quickly.

So, while the future is looking bright, the great irony is that the only people actually able to go flying today will be those who have a Section 333 exemption.



FAA, Drones and Registration . . . It’s Coming

The FAA’s proposed model aircraft registration system has taken a major step forward.  The Aviation Rulemaking Committee (ARC) has delivered its report to the FAA with a wide range of recommendations.  When the proposal was originally announced, virtually nothing was known about what types of aircraft would be registered, who would have to register, and when registration would take place.  Under the proposal in the ARC report, the registration requirement is surprisingly broad.

When the project was announced, it was unclear whether the registration threshold for aircraft would be set based on weight, performance, or a combination of the two.  The ARC Report has decided to go with a weight-based approach, and has set the bar much lower than most people expected.  The Report recommends that all model aircraft weighing less than 250 grams (8.8 ounces) be subject to registration.  At a little over a half-pound, this will sweep up all but the smallest toys.

Obviously, setting the weight limit this low means that the number of vehicles to register will be enormous.  To deal with the problem, the report recommends a system where the owner, and not the vehicle itself, be registered.  Upon signing up, each owner would be given a certificate of registration with a unique owner registration number.  This number would have to be placed on any model aircraft they own.  Children as young as 13 would be eligible to register.  The owner must provide name and address, with phone number, email address and an aircraft serial number optional.  The operator, i.e. the person flying the aircraft does not have to register.  The FAA will be the custodian of the information that is collected.

The ARC Report also notes that compliance with the new system will only be successful if it is easy for owners to use.  The current aircraft registration system, with its reliance on paper forms with multiple carbon copies, is not up to the task.  The ARC recommends that the FAA’s system be both web and app based to make use as streamlined and easy as possible.

So, how did the Committee reach the conclusion that model aircraft as light as half a pound should be registered?  The ARC Report notes that there is a lack of scientific studies of the risks of UAS operation.  It should also be noted that there is not even a large body or “real world” data on model aircraft injuries due to the enviable safety record the hobby enjoys.  The ARC focused primarily on a study done by MITRE dealing with injuries from falling objects, and concluded that at 250 grams, there would be an acceptable risk of injuries from an aircraft falling from 500 feet, taking into account air resistance and terminal velocity.

The ARC report is a very important part of the FAA’s process, but it is not the end.  The FAA has made clear that the final rule will be based not only on the ARC Report but also on the four thousand comments filed in the Federal Register.  The one thing we know for sure, registration is definitely coming.



FAA, Drones and Registration . . . It’s Coming

The UAS Insurance Association

Mission Statement

The mission of the UAS Insurance Association is to assist the insurance industry in establishing and maintaining practices and procedures focused on the growing world of UASs in commercial operations and insuring that the unique interests and perspectives of the insurance industry  associated with UAS are identified and effectively managed through insurance and other techniques of risk mitigation.  Additionally, it is to, where appropriate, educate the drone industry on all aspects of insurance and, as necessary, act as an advocate on behalf of the insurance industry.

The UAS Insurance Association, (UASIA), is an industry group focused on all aspects of insurance, risk management and safety which involve manufacturers, operators and users of drones/unmanned aircraft systems in the National Airspace System for commercial purposes.

As this rapidly growing industry continues to develop, both on the commerical and regulatory fronts, it is evident that the interests and concerns of the insurance industry grow as well.  This includes not only hull or liability insurance coverages, the development of underwriting standards, claims management processes and risk mitigation strategies.  Regulatory uncertainties, the absence of the risk based body of experience and  the ever increasing concerns about the collision between a drone and manned aircraft, present to the insurance industry a set of issues which are of concern.  The UAS Insurance Association provides a voice for those concerns and a vehicle to act on them.

In addition to bringing together interested insurers, brokers and others involved in the insurance area with a unified voice, the UASIA will provide to its members:

  • regular “insider” briefings from, among others, Jim Williams, Co-Chair of the Dentons UAS Practice Group and former Manager of the FAA’s UAS Integration Office.
  • a vehicle to comment on FAA and other federal level rulemakings as the process unfolds and the industry grows.
  • input into state level legislative activities targeting drones/UASs.
  • policy wordings affecting coverage
  • contracts and contract wordings that can be used to buy or sell UAS services in a way so as to maximize the management of the risks.
  • real-time alerts summarizing developments in the UAS world
  • effective access to UAS decision-makers both in the industry, the FAA and on Capitol Hill
    • advocacy on issues of concern and a single source for “all things” related to this burgeoning industry.

Members of the UASIA Founding Board include:

Allianz Aviation

AIG Aviation

Global Aerospace

Transport Risk Management

If your company is interested in joining with it’s colleagues in the insurance industry and joining UASIA as a Founding Member, please contact Barbara Butler at barbara.butler@dentons.com or (703) 336-8704.

The UAS Insurance Association

I’m The Inspector General and I’m Here to Help You

n the 1949 musical comedy, The Inspector General, Danny Kaye terrorizes a small European town full of corrupt politicians who mistake him for an imperial inspector general who is there to  root out corruption and incompetence.  While modern inspectors general working for the Federal Government do not have the same powers of life or death as their fictional counterparts, they can still strike terror in the heart of any bureaucrat.

It is the job of the Department of Transportation Inspector General to be “the sole in-house source for objective examination of its programs and their integrity, along with our core values and audit and investigative expertise, [to] ensure we remain highly responsive to the needs of the Secretary, Congress, and the American people.”  In furtherance of those objectives, the DOT Inspector General announced today it will be conducting a comprehensive audit of the FAA’s handling of the Section 333 Exemption process and the effectiveness of the FAA’s safety oversight of civil UAS operations.

It will be fascinating to see the results of this audit.  It is undeniable the FAA’s UAS Integration Office has made monumental progress in opening up the skies to commercial UAS flights.  It took the FAA about nine months to grant the first 20 Exemptions.  In the last six months, the FAA has granted over 1,200 exemptions.  There are, however, still significant issues with the process.  A simple amendment to an exemption to add an additional vehicle can take several months to process.  In addition, the interface between the Federal Register, where the petitions are filed, and the FAA docket, where the petitions are entered into the system for review, is completely overburdened by the volume of new petitions and is becoming a source of new delays.   A fresh look at the system by the Inspector General may lead to procedural improvements and further streamlining.

Even more interesting will be the Inspector General’s views of the current safety oversight process for UAS.  The audit announcement makes specific reference to the fact that there are about 60 UAS related incidents reported each month, and that some of those incidents are very serious.  The FAA clearly views their enforcement policy as appropriate, as it recently reauthorized the enforcement guidelines for another year without making any significant changes.  This means that the FAA is keeping its philosophy to warn and educate first, and only go to enforcement where someone is either willfully noncompliant after a warning, or has done something that constitutes a substantial safety risk.  While we doubt the Inspector General will be in favor of a “shoot first and ask question later” approach to enforcement, a more hard line philosophy may be recommended over the current one.

The involvement of the Inspector General on these issues is a welcome development.  Even if, at the end of the day, the conclusion is that they systems are working as best they can, having an independent confirmation of that fact will help Congress in their oversight, and ensure the confidence of an overall cynical public.

I’m The Inspector General and I’m Here to Help You

UAS: ALPA Wish List

The Air Line Pilots Association has not been shy about making their opinions known on UAS issues.  They took a strong stand in favor of requiring a commercial pilot’s license in their comments to the first Section 333 Exemption Petitions.  In addition, they filed rather detailed comments to the Small UAS NPRM on issues related to safety and the proposed UAS Operators Certificate.

Earlier this week, ALPA released a new white paper entitled, Keep America Flying: A Flight Plan for Safe and Fair Skies.  The white paper addresses a number of issues, including NextGen and air traffic reform, the federal flight deck officer program, the growing problem with transport of lithium ion batteries, open skies agreements, and UAS.

ALPA recognizes that small UAS operations have sparked “enormous commercial growth, providing considerable social and economic benefit.”  ALPA believes that so long as these operations are conducted in the current framework, i.e., segregated from other users of the National Airspace System (NAS) by the 500 foot altitude limits and restrictions on operations near airports, the risks to other operators are significantly reduced.  However, the white paper also shows how moving UAS to the next level and integrating their operations into the NAS will be significantly more difficult.  To that end, ALPA draws a line in the sand and sets out what it sees as the minimum requirements for a fully integrated system:

  • All safety-based rules applicable to manned aircraft should be applied to UAS.
  • UAS should not be granted routine access to the NAS unless they meet the same safety standards that apply to current certificated aircraft and operators.
  • Pilots of commercial UAS must hold a commercial pilot’s certificate.
  • Operators of commercial UAS should be subject to the same operational approval and oversight as commercial airlines.
  • No one should be permitted to control more than one aircraft at a time.
  • UAS must have active collision avoidance functionality.
  • All UAS that are not intended to be flown in the same airspace as manned aircraft must have geographic and altitude limitations built into them to ensure they cannot enter manned airspace.
  • All UAS must have the capability to land safely in the event of a lost-link.

Given the enormous time and effort that has gone into the creation of the Small UAS rule, many people have lost sight of the fact that this is actually the easy part of the task Congress has set before the FAA.  Full integration of UAS into the entire airspace is a monumental task, and will require a much more “hands-on” approach from the FAA at all levels, whether it be pilot requirements, training, aircraft certification, air traffic control, or operator certification.  Regardless of whether or not ALPA ultimately gets everything it wants out of this process, all of these issues will have to be examined and addressed in the next round of rulemaking.

UAS: ALPA Wish List

UAS: Note to Hobbyists…

On February 14, 2012, the Congress passed a law that largely made UAS hobbyists off limits to the FAA. Section 336 of the FAA Modernization and Reform Act of 2012 created “The Special Rule for Model Aircraft” that provides:

[t]he Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft . . .

Over the past three years, there has been an explosion in the number of hobby drones in the United States. Estimates put the total at over 500,000 aircraft in service. There has, unfortunately, also been a similar increase in the reports of near misses and close calls at the nation’s airports. As a result, some in Congress are rethinking the wisdom of the Special Rule for Model Aircraft.

Long time drone critic Senator Dianne Feinstein (D-CA) has joined with Senator Charles Schumer (D-NY) to introduce the Consumer Drone Safety Act. The bill directs the FAA to regulate consumer drones, and enact comprehensive regulations covering where they may be flown, how high they may be flown, when they may be flown, and any other topic the FAA Administrator feels is necessary to protect the National Airspace System.

In addition, the FAA is instructed to mandate the inclusion of technology in all consumer drones that would prevent any hobbyist from violating altitude or airport airspace restrictions and require return-to-home technology to deal with lost links. Even more significantly, the legislation would require hobbyist drones to have a registration number and a transponder “or similar technology to convey the drone’s location and altitude,” as well as anti-tamper features to prevent hobbyists from disabling the built in limiters.

This proposed bill also creates an enormous burden on existing UAS manufacturers, as it requires all existing UAS to be modified “at the manufacturer’s expense” so they can retro-actively meet the new requirements. While the bill has an escape clause that manufacturers can use to avoid the retrofit, it is available only in cases where the FAA Administrator finds that doing so “does not create a hazard to users of the national airspace system.”

Since the vast majority of UAS sales in the United States are made to hobbyists, the abandonment of the Special Rule for Model Aircraft would have a substantial impact on the industry. As of now, the major players have not mobilized to either support or fight the bill, and its fate remains uncertain. However, if one of the many near-misses turns into an actual collision, then we can expect a stampede of senators looking to become co-sponsors.

UAS: Note to Hobbyists…

Haste Makes Progress

Over the past two and a half weeks, more than 75 Petitions for Exemption have been granted.  This means that in a 17-day period, the number of authorized commercial UAS operators in the United States has nearly tripled.

As a result of this effort, for the first time, the backlog of petitions is actually decreasing.  In fact, some of the most recent petitions were pending for 120 days or less, which was the goal originally set by the FAA last summer when the Exemption process was opened up to UAS operators.

How has this been done?  The answer is “Summary Grant of Exemption.”

When the UAS exemption process was started, the FAA had a shortage of information about what it was people really wanted to do with UASs and how they wanted to do it. Over the past ten months, the FAA has gotten a lot of this information.  They have worked through the safety cases for a wide range of UAS applications and seen the types of vehicles that operators want to use.  In working through the first groups of petitions, they started to standardize the limitations that would be imposed on the operators as a condition of the Grant.

As a result of this work, the FAA announced that it is now in a position to use Summary Grants of Exemption to speed the process.  In essence, if you want to (1) fly a UAS for a purpose that has been previously approved; (2) want to fly an aircraft that has already been approved in another grant; and (3) you will abide by the limitations of previous grants, and (4) your supporting operational materials have all of the provisions that the FAA wants to see from a responsible operator, then processing time for your approval will be cut dramatically.

This should not, however, be confused with what they did in Canada last October. Transport Canada, which already had years of experience with commercial UAS operations, issued a blanket exemption to all Canadians to fly UASs under well-defined circumstances. If you meet those requirements, you don’t need a Special Flight Operations Certificate, the Canadian equivalent of a Section 333 Exemption.  The FAA has made clear that even under this new process, “the FAA still reviews each Section 333 petition individually.” The new summary grants are merely an additional analytical tool that will allow the FAA to process the more routine requests quickly.

It is also important to note that this does not foreclose anyone from getting permission to fly a UAS outside the parameters of what can be approved under a Summary Grant of Exemption.  Anyone who wants to propose a more complex UAS operation (i.e. beyond line of sight, autonomous, etc.), and who can make a safety case to the FAA to support the request, can still have that request considered through a Petition for Exemption tailored to the deviations from the more standard grants.

Hopefully, these new changes will finally quiet the naysayers who have been claiming the 333 Exemption process doesn’t work, can’t work, and is a waste of time.  If you were one of the few who took a chance last year and filed a petition, congratulations, you are probably already flying.  If you were waiting for a change in the system before you got into the UAS business, this is what you have been waiting for.

Haste Makes Progress

UAS Symposium – So You Want to Be in the Unmanned Aircraft Systems (UAS) Business: One Year Later

June 11, 2015 – 9:30 am – 4:30 pm

NTSB Conference Center
420 L’Enfant Plaza 10th Street S.W.
Washington, DC 20594 

On June 26, 2014, legacy McKenna Long & Aldridge convened its first UAS Symposium.  Attended by over 200 registrants, we now find ourselves one year later.  The Federal Aviation Administration has been accepting and acting on exemption petitions, civil/commercial UAS operation have begun and the FAA has published a Notice of Proposed Rulemaking (NPRM) proposing an entirely new regulatory regime for the civil/commercial UAS industry.

This Symposium will, one year later, address where we are and where we’re going.  In addition to the following, subjects, you will hear from experts from the FAA, the NTSB, the UAS industry and the legal profession on not only how to get into the commercial UAS business, but what to expect in the next 12 to 18 months.

  • A review of the UAS Notice of Proposed Rulemaking, published on February 15, 2015, including the public comments and where we go from here.
  • The Section 333 exemption process, including its current status, requirements and timelines.
  • What you need to know and do if you’re going to be in the UAS business, whether you’re a user, operator or manufacturer.
  • Why you should like and/or dislike the regulations being proposed by the FAA?
  • Privacy issues and how you can deal with them.
  • What is the role of the National Telecommunications Information Agency?  Why you should care about it and what you can do about it.
  • What problems will UAS manufacturers confront in a regulated environment?
  • Is UAS insurance available and, even if it is, do you need it?
  • How to manage and control risks associated with the world of UAS?
  • What happens if you have a UAS accident/incident?

Click here to review the agenda.

About Our UAS Group

MLA’s UAS Practice Group includes attorneys and professionals who are well-versed in FAA regulatory and enforcement issues, liability, risk management, insurance, commercial/contract issues, intellectual property, government affairs and other legal issues involved in operating UAS in the commercial world.

Who Should Attend

Any company which wants to be (or isn’t sure whether it should be) operating in some aspect of the civil UAS business. 



Information and Registration

Barbara Butler, Symposium Coordinator
Email:  bbutler@mckennalong.com

Sponsored by The Tesla Foundation Group and McKenna Long & Aldridge 

UAS Symposium – So You Want to Be in the Unmanned Aircraft Systems (UAS) Business: One Year Later