Authority to Fly

• Author: Timothy M. Ravich
• Profession: Lawyer
• Pages: 109-133

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C 

Authority to Fly

Until enactment of 14 C.F.R. Part 107 in August 2016 (see Chapter 9 infra), Federal

Aviation Administration (FAA) policy prohibited any person from operating a

commercial or civil (e.g., nongovernment) drone in the National Airspace System (NAS)

without specific authorization. Now, civil UAS operators can fly under either Part 107 or

pursuant to the certificate of authorization and waiver (COA) processes of the FAA. For

all intents and purposes, the COA process will be phased out with respect to operators of

civil drones weighing less than 55 pounds. But, flight of civ il drones weighing more than

55 pounds— so- called “non-Part 107 operations”— will continue to fall within the FAA’s

COAs process. is chapter evaluates the regulatory permissions non-Part 107 “macro”

drone operators must obtain, leaving a full discussion of the operating requirements of

small UAS under new Part 107 to Chapter 9 infra.

Broadly speaking , unmanned aircraft system (UAS) operators who do not fall w ithin a

recreational or hobby use exemption (see Chapter 3 supra) must apply directly to the FAA

for permission to fly.1 At that, commercial or civil unmanned aerial vehicle (UAV) opera-

tors have had limited options to fly lawfully: (1) arrange to fly as a public entity and obtain

a COA from the FAA; (2) obtain a special airworthiness certificate (SAC) from the FAA

in the experimental category; or (3) petition for authorization to fly under Section 333 of

the FAA Modernization and Reform Act of 2012 (FMRA). Indeed, until the enactment

of 14 C.F.R. Part 107 in August 2016, UAV operators— whether public, private, civil, or

commercial— have had to operate within the following framework exclusively:

For UAS operating as public aircraf t, the authority is the CO A. ese COA types

include Standard COA, Blanket COA, and Class D/G Notifications Memorandum

1 F. A A ., U  A  O    N  A S , 72 Fed. Reg. 6,689

(Feb. 13, 2007). Recreat ional UAS users— hobbyists— are not requ ired to obtain specific aut horizations from the FAA

before flying UAS pu rsuant to Section 336 of the FMR A, which prohibits the FA A from promulgating a ru le regarding

“model” aircra ft if the aircraf t is flown “strictly for hobby or recr eational use” and mee ts several other requi rements. P.L.

112-95, § 336, 126 Stat. 77.

COMMERCIAL DRONE LAW

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of Agreement.2 In the event that these operations cannot be supported by the FAA’s

regular COA processes due to their exigent circumstances, they may be conducted

under the authority of a COA addendum granted through the Specia l Governmental

Interest (SGI) process managed by System Operations Security expressed in FAA

Order N JO 7200.23, Chapter 6. e FAA may apply this process if the following

conditions are met:3

t e proponent is operating under the authority of an active COA (including

Blanket COAs);

t e UAS operations to be authorized must be conducted within a timeframe

incompatible with the processing time required for regular COA processes, as

determined by System Operations Security;

t e requested operations must be flown by a governmental entity or sponsored

by a government entity (i.e., the operation is to be flown at the request of or is

specifically supported by a government entity) as determined by System Opera-

tions Security; or

t e o perat ions must dire ctly suppo rt an act ive (e. g., not demon str ation ) home land

security, law enforcement, or emergency operations effort, or some other response,

relief, or recovery activity benefiting a critical public good; e.g., restoration of an

ele ctri cal grid o r some othe r crit ica l inf rast ruc ture . e f ulfi llme nt of t his r equi re-

ment is determined by System Operations Security in consultation, as needed,

with the FAA’s interagency partners.

t Classified UAS Operations: Select public UAS operations may be of sufficient

national security sensitivity that they are classified. ese operations are carried

out under the authority of COAs granted by System Operations Security.4

For civil (nongover nmental) operation of dro nes, the FAA does not fol low the COA

process. Rather, the FAA allows civil drone operators to try to obtain a Special

Airworthiness Certificate—Experimental Category (SAC-EC) by demonstrating

that their unmanned aircraft system can operate safely within an assigned flight

test area and cause no harm to the public.5 If the FAA determines the project does

not present an unreasonable safety risk, the local FAA Manufacturing Inspection

District Office will issue an SAC-EC with operating limitations applicable to the

particular UAS.

Stated another way, any operation that does not meet the statutory criteria for a public

aircraft operation is considered a civil aircraft operation and must be conducted in

accordance with all FAA regulations applicable to the operation.6

2 F. A A ., U  A  S (UAS ), N JO 7200.23, Ch. 5, § A.1.b. (replacing F. A-

 A ., U A  O     N A  S (NA S), N JO 7210.889, ¶ 9a).

3 Id.

4 Id. Ch. 5, § A.2.c., ww w.faa.gov/documentLibra ry/media/Not ice/N_ JO_7210.889_Unmanned_ Aircraf t_Opera-

tions_in _the_NAS.p df.

5 F. A  A., Fact Sheet—Unmanned Aircraft Systems (UAS), https: //www.faa .gov/news/fac t_shee ts/news_

story.cfm?newsId=18297.

6 U  A  S ( UAS), supra note 2, at Ch. 5, § A.2.