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Aug. 25 — Don’t look up now.
Thousands of companies are expected to apply for Federal Aviation Administration waivers starting Aug. 29 to fly drones over people—something the agency so far has permitted only a few companies to do.
News organizations, sports stadiums and electrical grid inspectors are anxious to start sending drones soaring over crowds and into urban areas under new FAA rules regulating commercial drones the agency rolled out in June (21 ECLR 1039, 6/29/16)
The FAA is planning to draft regulations for drone flights over people by December. In the meantime, FAA waiver guidelines don't specify how operators can prove they’ve taken enough precautions to stem injuries in worst-case scenarios—especially if a drone crashes.
“The FAA has basically opened it up for industry to figure out,” Jeff Rose, chief drone pilot for Sinclair Broadcast Group Inc., told Bloomberg BNA. Sinclair aims to use news gathering drones in 40 markets by 2017.
Companies left without specific standards are coming up with their own ideas for how to prevent catastrophic drone accidents. Sinclair, for instance, is planning to propose ballistic parachutes to deploy on plummeting drones. Researchers elsewhere are reportedly exploring how to use foam encasements as cushioning to prevent falling drones from harming unsuspecting humans below.
“The race is on to obtain a waiver,” Rose said.
Sinclair’s strategy is to go “above and beyond” June's rules to prove its drones are safe. Its flights will have one person piloting and another controlling video feed, whereas the rules only require one operator, Rose said. Operators will receive drone training on top of passing the FAA’s knowledge test certification. That takes effect Aug. 29 and replaces the agency’s current pilot's license requirement.
Apart from training and employing extra operators, some companies hope to win waivers by modifying the drones themselves in order to limit damage from a crash or other malfunction.
“This may mean covering the vehicle with foam, propeller guards, along those lines—get creative with how this is going to work,” Lisa Ellman, co-chair of Hogan Lovells LLP’s Unmanned Aircraft Systems Practice, told Bloomberg BNA. “There simply aren’t standards for that right now.”
Other companies will propose using drones with parts that pop apart on impact to disperse energy from a fall, Mark Blanks, director of Virginia Tech's Mid-Atlantic Aviation Partnership, which serves as an FAA testing sight for unmanned aircraft systems, said.
“There’s a hundred ways people are approaching this,” Blanks told Bloomberg BNA.
In many cases, it's easier and cheaper to send a drone to do a job that a manned operation or helicopter would otherwise do. For several years, companies wishing to fly drones over people had to ask for a special exemption under Section 333 of the FAA Modernization and Reform Act of 2012. Film and media companies—who wrote their own drone safety manuals and promised to operate only on closed sets where all staff had signed a waiver—were among those that received exemptions. Waiver applications under the FAA's June rules will replace the exemption process for flights over people.
Companies will also tell the FAA when they plan to use collision avoidance software, Ellman said. SZ DJI Technology Co., better known as DJI, introduced the technology. The company manufactures about two-thirds of all commercial drones operating under Section 333 exemptions, according to a 2016 study by the Center for the Study of the Drone at Bard College.
A forward-facing camera on select drones senses obstacles and automatically pauses the flight path, which might enhance safety, Brendan Schulman, vice president of policy and legal affairs at DJI who served on the FAA’s aviation rulemaking committee, said.
The FAA will look to an April 2016 report requested from a coalition of drone industry stakeholders for recommendations on regulating drones flying over people. The report, written by the Micro Unmanned Aircraft Systems Aviation Rulemaking Committee, does not set specific weights or speeds to regulate safety for drones above 250 grams, or just over half a pound. By contrast, countries like India or Canada have set such parameters, Schulman said. Instead, the report focuses on the risk of injury from malfunctioning drones.
“How much kinetic energy would be transferred to the head of a person if they were to be hit by a drone in the event of an accident?” Schulman asked. “If there’s less than 1 percent chance of a serious injury if the drone does fall, then the drone can be flown over people.”
The FAA hasn't decided on a method for measuring that risk threshold, but the agency's conclusions may lead to a self-certification process by manufacturers, he said.
Ellman said companies are also planning safety tests and data collection for submission to the FAA to show how different vehicle weights and speeds affect the impact of a falling drone. The FAA's June rules limit drone speeds to 100 miles per hour.
To be sure, injury from drone malfunction is rare, and neither Schulman nor Ellman were aware of a human death by drone.
The FAA plans to use information garnered from the waiver process as well as the aviation rulemaking committee report to draft its regulations for flights over people for all commercial operators by late this year. A final rule, however, will take months more to rollout.
“The rulemaking that we write will be consistent with the advice we have and the permissions we've granted previously,” Earl Lawrence, director of the FAA's Drone Integration Office, said Aug. 4 at a Holland & Knight LLP event in Washington. “That's why we do things in steps, because we're learning along with everybody else.”
The agency has also indicated its main concern is mechanical malfunctions—meaning a final rule will likely focus on manufacturing standards to make falling drones safer, Joel Roberson, a partner in Holland & Knight’s drone practice who also served on the FAA’s aviation rulemaking committee, said. Roberson told Bloomberg BNA he expected a final rule in mid-to-late 2017 that would “focus more on the actual construction of the aircraft and less on the operator.”
Until then, the FAA has suggested that companies plan for a 90-day waiver application review until the process is automated.
“How long it may take will depend on the complexity of each individual waiver application and the overall volume of requests we receive,” an FAA spokesperson told Bloomberg BNA.
Ellman said the agency is under pressure to make the process as streamlined as possible.
Next week, “We're going to see a flood of applicants,” Ellman said. “The question is, can the FAA keep up with Silicon Valley innovation?”
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