Drones After Dark: FAA Now Processing Waivers of Small UAS Rules

Despite the Federal Aviation Administration's (FAA) longstanding policy to permit commercial entities to fly small unmanned aircraft systems (UAS) only during the daytime, under a new waiver process many operators are gaining permission to fly at night.  This creates the opportunity to significantly expand the use of UAS in areas such as closed set filming, events coverage, surveying, and facilities inspection, to name a few.

The FAA’s Part 107 rules governing the commercial operation of small UAS permit operation of UAS only during daytime hours.  However, when the FAA adopted the rules this summer, it also established a process by which entities could obtain waivers from certain rules simply and (relatively) quickly.  Entities can now seek a waiver from certain provisions of the Part 107 rules using a simple online form.  An FAA waiver is needed to conduct night flights, operations beyond visual line of sight of the pilot, and flights over people, among others. For more information about obtaining a waiver, take a look at Wiley Rein’s recent client alert.

Since the waiver form went live on August 29, 2016 (the effective date of the rules), the agency has granted more than three dozen waiver requests submitted through this new process.  The vast majority of the waivers granted authorize night time UAS operations.

The FAA has long prohibited night time operations of commercial UAS.  Although it issued at least one exemption authorizing night time flight pursuant to its legacy Section 333 exemption process, dozens more were pending when the Part 107 rules went into effect.  The FAA granted many of these pending exemptions as waivers on the effective date of the rules, and steadily has continued to authorize night time flight pursuant to the new streamlined waiver process.
Entities that receive waivers to operate UAS at night must adhere to the following special conditions:

1. All operations under the waiver must use one or more visual observer (VO);

2. The remote pilot-in-command (PIC) and VO must be properly trained to recognize and overcome visual illusions caused by darkness, and understand physiological conditions which may degrade night vision;

3. The remote PIC and VO must ensure the area of operation is sufficiently illuminated to allow both the remote PIC and VO to identify people or obstacles on the ground, or the remote PIC and VO must conduct a daytime site assessment prior to conducting operations covered by the waiver, noting any hazards or obstructions;

4. The UAS must be equipped with lighted anti-collision lighting visible from a distance of no less than 3 statute miles. The remote PIC may reduce the intensity of the anti-collision lighting if it would be in the interest of safety to do so; and

5. The UAS must not fly higher than 200 feet above any structure’s immediate uppermost limit (the limit under Part 107 is 400 feet).

In addition to night time operations, the FAA has authorized the operation of multiple UAS at once pursuant to the new waiver process.  Waiver of this rule potentially opens the door for projects such as Intel’s Drone 100, an impressive display involving the simultaneous operation of 100 lighted UAS that debuted in Germany this year.  At least one waiver granted by the FAA indicates that the operator requested the waiver for UAS that are tethered to the ground and requires the UAS remain at an altitude of no more than 80 feet above ground level.  Another indicates that the operator will use geo-fencing technology to contain the drones and limits operation to no more than 20 UAS at a time.

Hobbyists are not subject to Part 107, and therefore do not need to obtain a waiver to fly drones at night.  However, to be exempt from the Part 107 rules, hobbyists must operate their UAS “in accordance with a community-based set of safety guidelines.”  Further, federal law prohibits the operation of any aircraft in a manner that is reckless, careless, or otherwise endangers the safety of the national airspace system.  Accordingly, hobbyist drone enthusiasts looking ahead to Halloween should ensure their ghost drones are properly outfitted to fly at night.  According to the safety guidelines of the Academy of Model Aeronautics, the UAS itself should include a lighting system “providing the pilot with a clear view of the model’s altitude and orientation at all times.” And as tempting as it might be to get as close as possible to unsuspecting trick-or-treaters, to comply with the safety guidelines the drone should maintain a safe distance from unprotected people, vehicles, or structures, and avoid flying directly above a person’s head at any altitude.