170
March 2017
PHOTOGRAMMETRIC ENGINEERING & REMOTE SENSING
Federal Register with an effective date. This is the same
process that Part 107 had to go through. A good rule of thumb
for timing is it takes around 1.5-2 years from publishing in
the Federal Register to the rule being finally implemented.
The FAA also has in the works another NPRM to allow
for night and beyond visual line of sight operations. Based
upon this data, a Part 107 waiver is the only real short-term
solution for over people, night, and beyond visual line of sight
operations.
5,000+ Section 333 Exemptions Updated
While most individuals are operating under Part 107, there
might be a few individuals who wish to continue to operate
under their Section 333 exemption. The main reason for this
is that some people have old Certificates of Authorization
(COA) to fly at certain locations near airports and would
rather keep using their old COAs tied to their 333 in the near
term until they obtain a Part 107 authorization.
The updates to the exemptions provide some big changes
by allowing operators to register aircraft under Part 48,
conduct flight instructing operations to students, allow
operations of an aircraft on the “super list” of aircraft, and
allowing foreigners to operate the aircraft under the Section
333, provided they obtain a Part 375 foreign aircraft permit.
S
tate and
L
ocal
L
aw
V
ersus
F
ederal
L
aw
The states, counties, cities, and towns have all started getting
into regulating drones. This has created a big patchwork of
laws. Worse yet, some of these state and local governments are
publicly requiring permits for drone operations, but behind
closed doors, the motive is probably for revenue. In short, the
goal is probably not to decrease risk, but to increase revenue.
Article 6 of the United States Constitution says, “This
Constitution, and the Laws of the United States . . . shall be
the supreme Law of the Land.” The legal term for this concept
is called preemption. You have two types of preemption: (1)
expressed and (2) implied.
Unfortunately, the FAA Reauthorization that was passed
in July 2016 did not have any express preemption language in
it which would have fixed all of this. The next reauthorization
will have to be passed by September 2017 so now is a good
time to start bugging your federal elected officials to make
sure this language is put in the next reauthorization. The
other way to determine preemption is through caselaw.
The area of aviation has been determined many times to be
impliedly preempted by caselaw. None of the cases declaring
aviation to be preempted involveddrones, butmannedaircraft.
We currently have some cases in the federal court system
right now that could potentially start influencing preemption
and state drone laws. The biggest one is the
Taylor v. FAA
set
of cases in the D.C. Circuit Court of Appeals (the court right
below the U.S. Supreme Court) which are challenging the
FAA’s drone registration regulations. One of the points made
was that the FAA lacks authority to regulate model aircraft
in a person’s backyard flying low to the ground. Another
case,
Boggs v. Meredith
, is in the Western District Court of
Kentucky and is asking the district court to determine the
lower reaches of navigable airspace. If the court rules that
navigable airspace for drones goes all the way to the blade
of grass on the ground, then states are going to have a hard
time showing their drone laws are not preempted; however,
if the court rules that navigable airspace starts at a certain
height off of the ground, then the states have good grounds
to argue they can regulate this pocket of air below navigable
airspace.
C
onclusion
This fast-moving area is constantly changing for the better
with the new influx of remote pilots, a greater amount of
airspace authorizations and operational waivers being
granted, and on the horizon, a regulation allowing for the
operation of drones over people. The future looks bright for
drones.
If you want to stay up to date on these issues, pay attention
to future articles in
PE&RS
, the FAA website at
H
elpful
R
esources
Summary of Part 107
Small Unmanned Aircraft Systems Advisory Circular
107-2
Knowledge Test Study Guide (PDF)
Knowledge Test Sample Questions (PDF)
Request a Part 107 Waiver or Authorization Portal
Part 107 Waivers Granted
A
bout
the
A
uthor
Jonathan Rupprecht is a commercial pilot, a flight instructor,
an adjunct faculty at Embry-Riddle Aeronautical University,
the owner of Rupprecht Law, P.A. and contributes to and
edits the Drone Law Blog
-
law-blog).
