Authority to Fly

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

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