Does Xcel Energy’s Waiver for Beyond Visual Line of Sight Drone Operations Break New Ground?

News outlets are reporting this week that Xcel Energy has received a waiver from the Federal Aviation Administration (FAA) to conduct unmanned aircraft systems (UAS) operations beyond visual line of sight of the operator.  Xcel CEO Ben Fowke explained to the press that Xcel will use the waiver “to conduct flights that will enhance grid reliability and safety for our employees and the public.”  The company has touted the waiver as “unprecedented” and “groundbreaking.”  But is this really uncharted territory for expanded UAS operations?

In many ways, no.  The FAA has both waived the relevant rule and authorized operations of the scope contemplated by the Xcel waiver in several previous instances.  The prohibition on beyond-visual-line-of-sight (BVLOS) commercial UAS operations comes from Section 107.31 of the FAA’s rules.  The FAA adopted Part 107 in June 2016 to replace its previous case-by-case approval process and thereby allow broader commercial UAS operations in the national airspace.  Acknowledging that Part 107 imposed several restrictions that would thwart development of innovative UAS operations—including the visual-line-of-sight requirement and the prohibition on flights over people, among others—the FAA established an online waiver process to enable operators to obtain authorization to conduct operations that deviate from Part 107.  To qualify for a waiver, the operator must demonstrate that the proposed operation can achieve a level of safety that is at least equivalent to that achieved by the rule for which waiver is sought.  As of time of publication, the FAA has granted eighteen waivers to thirteen companies to enable beyond-visual-line-of-sight operations.  Many of these waivers, including the first-ever BVLOS waiver to BNSF Railway, require someone who is not the pilot (a “visual observer”) to remain within visual line of sight.  Although Xcel’s waiver allows the UAS to operate when neither the pilot nor a visual observer is able to see the aircraft, this is not the first time that the FAA has issued a waiver to enable this complete BVLOS approach.  The agency has provided such relief to other companies including PrecisionHawk and Mosaic.

In other ways, it’s hard to determine whether the Xcel waiver is novel.  Because Part 107 waivers are granted in response to applications filed by entities to conduct specific operations supported by specific safety cases, often the grants of operational authority in the waiver—which contain only terse descriptions of the authorized operations—can only be fully understood with reference to the application.  This is problematic because while the waiver grants themselves are public, the applications are not.  Geographic locations are a prime example: Xcel’s waiver permits operations to take place only in the locations “identified in blue” in Xcel’s waiver application.  Similarly, Mosaic—which received a waiver in November 2017 for agricultural remote sensing—can conduct BVLOS operations in “zones A and B” as described in its application.  Other aspects of the grants can also be hard to understand without the applications.  For example, Xcel’s grant states that “[t]he remote PIC must ensure sufficient [visual observers] and equipment are used to identify any non-participating aircraft and any non-participating persons . . . as described in the waiver application” (emphasis added), whereas Mosaic’s includes the same language omits the term “equipment” and does not reference Mosaic’s waiver application.  This suggests that Xcel may have proposed a technical solution to reduce its reliance on visual observers.  Xcel’s grant includes a requirement that aircraft be capable of semi-autonomous operation where Mosaic’s does not, but Xcel’s grant contains no specific reference to the pilot in command being able at all times “to determine the position, attitude, altitude, and direction of flight of the [UAS],” which is included in the Mosaic grant.  Without the applications, the significance of these differences (and the relative scope of operations) simply can’t be known.  

In at least a couple of ways, the waiver does reach new heights for the commercial UAS industry.  The Xcel waiver marks the first time that an energy company has received FAA authorization to conduct BVLOS operations, and the first time a utility company has received authorization to conduct BVLOS without the use of a visual observer.  Xcel’s waiver follows months of cooperation with the FAA as part of a partnership geared toward researching the safe operation of UAS to inspect critical infrastructure.  Given that energy utilities have thousands of miles of infrastructure, inspections by UAS are a natural fit and a good example of how the technology can make commercial industries safer and more efficient.  

Moreover, any waiver to allow novel UAS operations is a step in the right direction.  Even if the relief here is not new, it is promising that the FAA is continuing to enable entities to conduct expanded operations that deviate significantly from Part 107.  The FAA has established an incremental approach to integrate UAS into the airspace, under which the agency will conduct a series of rulemakings to increasingly allow commercial UAS operations that present novel safety risks.  However, because of concerns raised by public safety stakeholders, all of these rulemakings depend on the FAA first adopting rules that allow law enforcement and other public safety entities to remotely identify UAS operators.  As we’ve previously discussed, this rulemaking continues to be delayed, prompting the FAA to encourage the industry to use the agency’s waiver process to conduct expanded operations.  The Xcel waiver is consistent with the FAA’s message that it is “Open for Business” to authorize expanded operations on a case-by-case basis in the absence of broader enabling rules.  Companies that don’t want to wait for the FAA’s rulemakings should follow Xcel’s example and begin developing their own proposals for expanded operations.

UPDATE: On April 24, 2018, this post has been corrected and updated to add additional information on the BVLOS conditions in prior FAA waiver grants.