Your FAA Regulation Questions Answered: Part 107, Section 333 and the Future of Drone Law

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FAA regulation has long been cited as the primary reason individuals and organizations were hesitant to explore the commercial use of a drone, but the release of Part 107 has changed all of that. Under Part 107, operators will have a much easier time legally operating a drone for commercial purposes.

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While many have praised Part 107 for how it will change the approach professionals can take, it’s also raised countless questions around what that approach should look like. To find out the answers to many of those critical questions, I got in touch with Jonathan Rupprecht, whose Drone Law Blog is a great resource for anyone trying to sort through such issues.

Jonathan laid out some incredible insights, so please read on to discover how commoditization might impact the market, gather great tips on finding a Part 107 course, find out whether it still makes sense to file for a Section 333 and much, much more.

 

Jeremiah Karpowicz: The news about Part 107 came out fast, and information about it continues to move at an incredible pace. How have you managed to keep up with everything? Are you poring over documents or having conversations with the people in and close to the FAA? 

Jonathan Rupprecht: Both. I knew something was going to come out around June 21st some days before. I received some information and cross-checked it with some independent information which verified it. I knew then something was pretty imminent. I can’t tell you who told me or what they told me so as to protect my sources.  : )

 

On the Drone Radio Show, you mentioned how there is going to be a commoditization of individuals, both in terms of Part 107-certified operators competing with one another for business as well as within companies that can now pull drone operations in-house. How will this commoditization impact the predictions around the new jobs that could be created over the next 10 years, which the FAA itself quoted as being over 80 billion? 

The barrier to entry has been put so low that large companies will find people in their company first to fill the jobs. The large companies will then hire people with the best qualifications. Independent Part 107 operators will occasionally get work from the large companies, but I think that is going to be the exception. There could be some great inspecting sub-contracting opportunities with larger companies if you are in a remote area. They would rather pay you to do an inspection rather than to send a crew out.

There will also be a large influx of independent drone operators that will rush in to many different industries. Each industry will be different and have different barriers to entry. For example, real estate photography is going to be heavily commoditized while surveying and mapping will be more insulated from that. Why? Real estate photography just needs a WordPress website, Mailchimp, a P3 or a P4, and a Part 107 certificate. Depending on the state, a surveyor is going to need to have passed a license (major barrier to entry) and have to have a certain amount of training and knowledge to even know what he is doing on top of the website, drone, and certificate.

Another barrier to entry will be in obtaining certain types of waivers from the FAA to do certain types of jobs. For example, say you are a cinematographer competing for a gig. If you have a night waiver, that puts you at an advantage over the other guys because you can get night shots. Another example would be beyond-visual-line-of-sight for surveyors. Having a competitive edge is another great reason to work with a competent aviation attorney.  : )

I think the commoditization will also create a large need for service providers supporting drone operators because when the prices go lower, operators are going to find ways to cut costs by outsourcing tasks to dedicated people.

 

You also mentioned Part 107 is going to expose people who don’t have the expertise they claim they do. How do you see that exposure playing out? 

People are going to open their mouths and say things. One great example is an extremely prominent person in the drone industry who was commenting on the proposed regulations after they came out in February 2015. The individual expressed that proposed Part 107 was a problem because we would need to create all these knowledge-testing centers. Anyone who has a Part 61 pilot certificate and who has been to one of the 696 knowledge testing centers around the world to take a knowledge test automatically knew this individual had no clue what he was talking about.

Another prominent attorney in the drone industry said that there was no FAA guidance material on motion picture and TV operating manuals. Everyone in Hollywood would know that the guy was incompetent. Manned helicopters have been operating under the MPTOMs for years and there was FAA material on the subject.

Both of these prominent individuals haven’t been called out because not many in the industry are pilots or work in Hollywood. Many in the industry are new and don’t know what is going on. You can make a speech about drones to many people and won’t get called out because many in the crowd do not have enough info to know you are wrong. With everyone getting a Part 107 certificate, the overall industry will become much more competent which will leave little room to hide incompetence.

 

You’ve been quite prolific on your blog in terms of the articles you’ve been publishing that deal with Part 107, so let’s start with your What Drone Operators Need to Know article, which you’ve continually updated since Part 107 was announced. Were you surprised by the differences between the Part 107 NPRM and the final ruling?

I was surprised that they made many regulations waivable as opposed to exemptible. This was a key difference between the NPRM and the final ruling because waivers can be done quicker and easier than exemptions which are governed by Part 11 of the FARs. This means I can help out my clients in ways that I could not before.

 

Do you think it’s significant that the NPRM called anyone who gets their Remote Pilot Certificate an “operator”, whereas the term in the final rule was changed to “pilot”? 

The FAA’s reasoning behind the terminology change was so as to avoid confusion. “Because other FAA regulations already use the term “operator” to refer to someone other than a small UAS pilot under part 107, the FAA agrees with commenters that use of the term “operator” in this rule could be confusing.” Part 107 Preamble on Page 97.

I think the new terminology can cause unintended results in two ways: (1) it can potentially cause a lot of the community who has a “toy” mentality to start thinking more like a pilot and (2) it also clues to FAA prosecutors that these are airmen and are protected by the Pilot’s Bill of Rights during investigations and prosecution.

 

The How to Get Your FAA Drone Pilot License post clearly lays out what people will need to do in order to operate legally under Part 107, which makes it a great resource. First-time pilots need to go to a testing site to take the test, while current manned aircraft pilots can complete theirs online, but is that the only distinction between the two tests? Are they otherwise the same? 

No, the Part 61 online training exam is focused on getting a pilot up to speed on the specifics of unmanned aircraft. It would be like a person with a mathematics degree taking some additional classes to earn an engineering degree. The Part 107 initial knowledge exam is going to be much more in-depth than the online Part 61 exam. This is like a person straight out of high school going for an engineering degree.

 

What are the pros and cons to these tests being different for these two sets of people who clearly don’t have the same knowledge of how to safety operate in the airspace?

The big pro for the current Part 61 guys is that they don’t have to take the initial knowledge exam. This also indirectly benefits the people taking the Part 107 exam because there are less people competing for slots to take the exam or burdening the FAA.

If you are not a current Part 61 pilot, you can choose to get your biannual flight review done or take the Part 107 initial knowledge exam. This makes sure that someone who is a rusty old Part 61 pilot can’t just slip on by.

 

In your Part 107 Frequently Asked Questions post, you mentioned that everyone on the Internet incorrectly classified drone flights as being either “commercial” or “non-commercial” when the correct way to do it is “model” or “non-model”. How have you seen this distinction create confusion or problems?

Non-profits are a prime example. They aren’t trying to make money in a commercial sense (they might want to save some animals or land), but they do sometimes make money for the flight and are not recreational. Another example is with public sector agencies who say, “We are not commercial or model. Where do we go?”  Using incorrect terminology causes certain people to ask, “What laws apply to me or where do I go?”

Keep in mind that I say model vs non-model because the vast majority of drone operators fall into one of those two categories. There aren’t many public sector operators. It’s a quick way to help people understand what applies. The FAA considers everyone to be civil aircraft by default which means all the Federal Aviation Regulations apply. You either have to comply with them or fall into one of the exceptions: (1) Section 336 model aircraft status or (2) public aircraft operator status. The most common exception is the model aircraft status. If you are not in the model aircraft status, then you are a civil operator who has to comply with all the regulations, unless you meet public aircraft operator status. So a good question to follow the model v. non-model question is “are you civil or public?”

The use of the “commercial” terminology came up because of the 2007 interpretation from the FAA which said that you could not fly commercially under AC 91-57. The only route at that time was to get a special airworthiness certificate in the experimental category, something expensive and time-consuming; thus, it was in effect a practical ban. Public agencies could fly under COAs and model aircraft flyers could use AC 91-57. The commercial guys were left to do it the “hard way” and were very vocal about it. The legal “telephone game” was played and eventually terms like “commercial ban” or “commercial v. non-commercial” started being used.

 

In that post you made multiple mentions of the bogus drone courses and advice individuals are taking about legally flying under 107. What’s the best way for a person to know the information they’re getting and following is legitimate? 

Yes, there are multiple bogus and deceptive courses out there. I’ve watched them from a distance. I won’t call them out because I don’t want to be like Indiana Jones in that snake room scene.

Let’s be open and real. A bunch of these droners know very little about airspace or the regulations but tend to parrot back portions of Facebook threads or drone law websites. Worse yet is when they play the telephone game about topics talked about online and it comes out of their mouths, or their keyboard, as a horrible mess. They tend to be also very savvy with internet marketing and creating websites. On the other side of things, you have highly certificated pilots and people who know the FARs and airspace like the back of their hand, but their Phantom footage has more Jell-o in it than a school cafeteria, less creativity than C-Span, and their drone shots have as many different moves as a $0.50 kiddy mechanical horse ride outside the grocery store.

What is your goal? To become legal and fly safely in the national airspace? Then I would pick only FAA certificated flight instructors.  Are you wanting to learn how to get better shots and create more compelling videography? I would search around in the droner crowd for someone with a lot of experience in your specific industry like real estate, cinematography, wedding photography, etc.  Are you trying to do some type of inspection? Go get certified in something in that field such as a thermography course certification if you are doing roof or solar inspections.  You are going to need 2 levels of training here: (1) the Part 107 stuff and (2) training specific to your industry.

Tips on finding a Part 107 course:

  1. Some say “FAA-approved curriculum” in a deceptive way. The FAA has approved manned aviation material and has released some study questions for the Part 107 initial knowledge exam. Generally, what I have seen here is that the study course takes the Pilot’s Handbook of Aeronautical Knowledge and uses that information to teach from. That has good information and is a good foundation, but that material was originally designed for Part 61 pilots, not Part 107 pilots. So see if they are deceptively marketing it as if the FAA created some Part 107 specific study material or just repurposed manned aircraft study material. The deceptive nature of it clues you in that you might not want to get information from deceptive people.
  2. I would deal only with people who are current FAA-certificated flight instructors. Sure there might be some sport, recreational, private, and commercial pilots out there that have the skills and can teach, but I’m trying to give you some tips on quickly weeding out the posers. I know what is required to become a certified flight instructor. My oral exam for my initial flight instructor check ride started at 7am and lasted 9 hours.
  3. Look at who is producing it. Try and gauge an overall the amount of experience of everyone involved. Compare that to who else is coming in to this industry. When I talked on that Podcast about how Part 107 will change things, I don’t think everyone really understood the shake up that is about to take place. Everyone is now in the aviation industry. There are companies which are aviation titans, with decades of experience in teaching manned aviation that are coming in to develop course material for Part 107 such as Gleim, King’s, Jeppessen, Sporty’s, etc. Many large aviation players are presently developing Part 107 material and leveraging their decades of experience and material they can easily repurpose.
  4. Consider your overall needs. Sometimes you might want some type of in-person training or other related service. For example, I work with other professional service providers, all of whom are commercial pilots, to help my clients. I can do the legal work, Gus and Maha Calderon do the manuals that accompany the waivers and petitions I file, and Scott Strimple can train the students based upon the manuals. This solution would be ideal for large companies wanting to train many pilots in their company but this can be scaled down for small companies with a basic manual and flight instruction.

 

In light of Part 107, does it make sense for anyone who has received a 333 to still operate under it? 

Yes, there are some great reasons why. I can’t mention why publically because I don’t want my competitors to find out. : )

 

What are your thoughts on the short-term FAA extension that was recently passed by the House of Representatives? More than anything else, it seems like this is a move designed to keep the government’s options open. 

Congress passed the FAA Extension, Safety, and Security Act of 2016 funding the FAA until September 2017. It included 13 provisions regarding unmanned aircraft. I think the FESSA did something great, it allows Section 333 exemptions to do beyond visual line of sight work now. I am currently writing blog posts on all 13 of the sections.

 

I also imagine creating a new non-governmental organization to handle air traffic control instead of the FAA proved to be too big of a mountain to climb in the short term. Is that a direction you see ever gaining more traction? 

Yes, it never made it into the FESSA. Privatization of ATC is a super polarizing topic in aviation. It was a clash of the organization titans and many in the drone industry did not know anything about it or which side to choose.

 

Since complying with Part 107 seems a whole lot easier than securing a Section 333, are there still reasons to apply for a 333? If someone is planning to operate under 107, will there still be a reason for them to seek legal help and advice?

Yes, there are reasons to get a 333 Exemption as opposed to going the Part 107 route and there are also reasons to go the 333 route as opposed to the public COA route. Each situation is different. Also, Part 107 does NOT allow all types of operations. There are many operations which will require a Part 107 waiver. I created a whole article listing out the operations needing waivers or which ones will need 333 Exemptions. Part 107 operators might wish to branch out into more lucrative type of operation like night, beyond visual line of sight, etc. as opposed to competing in a market with many operators.

There will be a need to help “seal the deal.” There will be large need to have me talk to the legal department during negotiations. Face it, lawyers don’t trust non-lawyers. I can speak legalese to them and explain that you can do the operation. This becomes very helpful for opening doors to large companies who have legal departments who are very risk adverse and know very little about drone law.

Another benefit to working with an aviation attorney is in preventing FAA enforcement actions or helping defend against them.

Attorneys can help you spot legal issues and bring them to your attention. He might have someone already he knows that can help solve the problem or he can be helpful in pointing you in the right direction to find an attorney focusing on the area you need help with like contracts, taxes, business, lawsuits, franchise, etc.

 

What are you most looking forward to seeing happen or develop on August 29th, when Part 107 officially goes into effect?

That we can start fully using drones in various industries and move onto more sophisticated drone issues. This will create a need for enterprise fleet management (creating manuals, training, SMS, etc.), doing legal R&D to get certain types of waivers or exemptions from the FAA to do complex operations, legal battles protecting drone flyers from state and local regulations, etc. We are at Step 1 and are about to move onto Step 2. I am excited to help clients navigate the transition into Step 2 and start preparing now for Step 3.

 

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About the Author

Jeremiah Karpowicz is the Executive Editor for Commercial UAV News. He has created articles, videos, newsletters, ebooks and plenty more for various communities as a contributor and editor. He is also the author of a number of industry specific reports that feature exclusive insights and information around how drones are being used in various markets. You can read all of those reports here. Get in touch with him on Twitter: @jeremiahkarp

6 Responses

  1. Mark Brassette

    Great interview Jeremiah and Jonathan…thanks for sharing your insight!

    Reply
  2. Philip Miller

    An interesting discussion. After thoroughly reading part 107 regulations and proposed exam questions, what is the real value of taking this test and licensure? If simply for commercial reasons I might understand. However, most of the questions actually apply to small aircraft and not drones. Or is this simply another path to simply spawning a huge industry of “qualified instructors?”

    Reply
    • Jeremiah Karpowicz

      The value is specifically related to being able to fly a drone for commercial purposes. Having the skies full of “qualified” operators certainly seems to be the goal, but as you’ll be able to discover from a lot of people in a lot of places, there’s still work to be done.

      Reply
  3. Chris Coyle

    Does anyone know if a remote pilot can be added to a night waiver? We got a 4 year night waiver since we purchased the zenmuse XT camera and only one remote pilot slot was available on the night waiver application. Now with several pilots I would like to add them so I am not the only one that can fly the sUAS.

    Reply
    • Jeremiah Karpowicz

      Is that a waiver you received as part of a 333 Exemption or was it granted under Part 107?

      Reply
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