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IN DEPTH

Come Fly With(out) Me; Unmanned Aircraft Systems in Public Transportation

BY ALLISON I. FULTZ and STEVEN L. OSIT
Kaplan Kirsch & Rockwell LLP

Aviation meets the public transportation ­industry, thanks to advances in technology that make unmanned aircraft ­systems (UAS)—or, if you prefer, drones—increasingly accessible tools for providers.

On June 28, the Federal Aviation Administration (FAA) issued a final rule(1) governing the use of drones under 55 pounds for a wide variety of purposes. The rule establishes various parameters to set the limits of UAS use, but does not require users to seek prior approval from the FAA before conducting UAS operations. Rather, the new rule significantly streamlines the process needed to begin flying UAS, allowing an FAA-certified “remote pilot” to operate any UAS that has been registered with the FAA without further approval in most cases.

This article will describe the types of tasks public transit properties can accomplish with drones, the parameters for operations allowable under the new FAA rule and the means for instituting drone operations.

What They Are, What They Do
UAS consist of a remotely operated aerial vehicle, a ground control system and the electronic communications link that connects them. The vehicle may have operating rotors (typically in sets of four, six or eight) or fixed wings, and may either be self-launching or require a launch device such as a catapult.

Ground control systems range from those as portable as a user’s smartphone to robust computer systems with multiple monitors and control inputs. Most commercial and recreational uses of drones also involve video or still image capture through cameras mounted on the vehicle, while some employ high-tech sensors capable of detecting the temperature or composition of objects or materials and even tracking otherwise imperceptible changes over time.

Industries as varied as railroads, property management, real estate sales, surveying, natural resource management, agriculture and utilities are rapidly adopting UAS as essential tools. A properly-equipped drone allows, for example, photographic and locational data to be collected and stored to create valuable and accurate inventories of property and facilities, including the production of detailed three-dimensional models.

Role in Public Transit
Specifically in the public transportation industry, UAS enable providers to conduct detailed visual inspections or emergency response without placing personnel at risk. Agencies of all modes already use drones for such tasks as asset and track inspections, inventory and logistics, emergency response and accident and incident investigations.

The physical dimensions of most UAS meeting the requirements of Part 107 of the aforementioned newly issued FAA regulation typically do not exceed a width and depth of 48 inches even with a payload such as a camera.

FAA Final Rule: What Users Need to Know
The final rule, 14 C.F.R. Part 107, does away with most of FAA’s previously required application and permitting requirements by establishing objective criteria for permissible operations. As long as the operator acquires the appropriate certification for remote piloting and the UAS being used is registered on the FAA’s UAS database, public and private entities can operate as long as they observe the limitations defined in Part 107.

For circumstances in which an operator may need to seek a waiver of the Part 107 criteria, FAA has established a process to demonstrate that the grant of the waiver will not jeopardize the safety of the proposed operations,

When it becomes effective on Aug. 27, the final rule will authorize routine civil (i.e., non-military) use of UAS under 55 pounds in the National Airspace System (NAS), which includes the airspace, navigation facilities and airports of the U.S., along with associated information, services, rules, regulations, policies, procedures, personnel and equipment. The NAS includes components shared with the military and is one of the most complex aviation systems in the world.

Importantly, Part 107 also permits FAA to waive the majority of its requirements on a case-by-case basis if the applicant provides supporting documentation with the waiver request that proves the proposed use will be safe. The goal of the regulation is to integrate this new species of aircraft into the NAS.

This means that the nation’s skies will ultimately accommodate flights by drones and manned aircraft of all sizes on a routine basis. The process to achieve this level of integration will necessarily take years, primarily because regulation will likely lag behind technological advances.

Operator Certification. Part 107 requires the designation of a “remote pilot in command” who is directly responsible for the operation of a UAS and for ensuring that it results in no undue hazards to other people, aircraft or property in the event of a loss of control.

The remote pilot must pass an aeronautical knowledge test to obtain a “remote pilot” certificate with a “small UAS” rating, which will be made available prior to the effective date of the final rule on Aug. 27. The individual manipulating the flight controls of a UAS operated under Part 107 need not hold a remote pilot certificate or any other qualification, provided that he or she is under the direct supervision of the remote pilot in command and the remote pilot in command has the ability of immediately assuming direct control of the aircraft.

In general, a remote pilot must be at least 16 years of age; be able to read, speak, write and understand English; not know or have reason to know of a physical or mental condition that would interfere with the safe operation of a small drone; and pass an initial aeronautical knowledge test and a recurring test every 24 months. The pilot may also be assisted by a visual observer, who is not required to be certified.

Operation Dos and Don’ts. The following requirements generally apply to UAS aircraft and their operation:

* Weigh less than 55 lbs. (25 kg);
* Remain within visual line of sight (VLOS) of the remote pilot in command or the visual observer, provided the UAS remains close enough to the remote pilot in command for him or her to be capable of seeing the aircraft with unaided vision except for corrective lenses;
* Operate only during daylight hours or civil twilight with appropriate anti-collision lighting;
* Yield the right of way to other aircraft;
* Remain below the maximum authorized ground speed (100 mph);
* Remain below 400 feet above ground level or within 400 feet of a structure;
* Maintain visibility of three miles from the control station;
* Perform a preflight inspection to ensure the aircraft is in safe condition for flight;
* Not be operated from a moving aircraft;
* Not be operated from a moving vehicle or watercraft unless in a sparsely populated area;
* Obtain authorization from air traffic control when operating in the vicinity of a controlled airport;
* Not be operated in a careless or reckless manner so as to endanger the life or property of another; and
* Report any serious injuries, loss of consciousness or damage exceeding $500 to property other than the UAS.

Importantly, however, the majority of these parameters may be waived by the FAA upon an individual application demonstrating that the operation can be safely conducted under the terms of the requested waiver. The FAA “expects that the amount of data and analysis required as part of the application will be proportional to the specific relief that is requested . . . [and] that the time required for it to make a determination . . . will vary based on the complexity of the request.”

FAA will consider requests for a certificate of waiver (CoW) of the following provisions of Part 107 if the applicant demonstrates to its satisfaction that the operations can be safely conducted under the terms of the CoW:

* Section 107.29, daylight operation;
* Section 107.33, visual observers;
* Section 107.31, visual line of sight, unless to allow carriage of property of another by aircraft for compensation or hire;
* Section 107.35, operation of ­multiple small UAS;
* Section 107.37(a), yielding the right of way to other aircraft;
* Section 107.39, operation over people;
* Section 107.41, operation in Class B, C, D and E airspace;
* Section 107.51, operating limitations for small UAS; and
* Sections 107.25, operation from a moving vehicle or aircraft.

The FAA will continue to permit operators with authorization obtained prior to the release of Part 107 to operate under the terms of that authorization, which in some cases may be less restrictive than the measures set forth in Part 107. FAA will also continue to accept applications and renewals for authorization for those operations falling outside certain parameters of Part 107 (such as operations using UAS weighing more than 55 pounds).

Privacy, Security Concerns
Although Part 107 provides a substantial degree of freedom for UAS operations, privacy is a significant concern in connection with UAS use. Many local governments and public transit properties have also expressed concerns over the proliferation of drones and what that means for the security of their communities and systems.

Users must be aware of the privacy standards that apply in the jurisdictions in which they operate to protect the rights of individuals not involved in UAS operations. For public entities, constitutional prohibitions on unreasonable searches and seizures are integral to this analysis. A discussion of these issues is beyond the scope of this article, but the ability of drones to reach and observe areas that previously raised few concerns demands that users take responsibility to confine UAS operations to the purpose at hand and to avoid intrusions on the privacy of others.

Similarly, to provide for the protection of critical infrastructure, Congress included a provision in the FAA extension enacted on July 15 allowing applicants to seek permission to prohibit or restrict UAS operations in close proximity to a “fixed site facility,” including energy transmission or distribution facilities and equipment or other facilities that warrant such protection.

Public transportation providers may want to consider whether to seek designation of their power distribution facilities or other components critical to operations. While FAA has yet to implement the provisions of the legislation, such a designation may be crafted to allow for the agency’s own inspection of its assets by UAS while prohibiting overflight by others.

Part 107 has removed many barriers to entry for prospective UAS users. With this change in the FAA’s stance from “you may operate UAS only if we permit you” to “obtain remote pilot certification, register your UAS and comply with these general standards,” public transportation providers now have increased latitude to explore the aspects of their operations that may be enhanced by the incorporation of UAS and to either hire operators in-house or contract for third-party services, as best suits each agency’s needs.

We are at the very beginning of an era of new technology that can enhance human efforts and make public transportation operations safer and more efficient.

Fultz and Osit are attorneys at Kaplan Kirsch & Rockwell LLP. They represent a number of APTA members and other entities in connection with passenger rail matters related to UAS. Fultz is a member of the APTA Legal Affairs Committee and the Rail Conference Planning Subcommittee.

Who’s Doing What
FAA estimates that about 2.5 million drones currently regularly fly in U.S. airspace and predicts that the number will reach 7 million by 2020.

All those drones are having a growing impact on the economy. “Taking Off: State Unmanned Aircraft Systems Policies,” issued by the National Conference of State Legis­latures (NCSL), cites a March 2013 report from the Association for Unmanned Vehicle Systems International, which projects that by 2025 more than 100,000 jobs will be created with an economic impact of $82 billion.

A March survey from the American Association of State Highway and Transportation Officials (AASHTO) found that 33 state DOTs are exploring, testing or using drone technology to monitor traffic conditions, make safety-related inspections and save resources.

Specifically, the AASHTO survey reports that 17 state DOTs have studied or used drones. They are Alabama, Connecticut, Delaware, Idaho, Indiana, Kentucky, Maryland, Massachusetts, Minnesota, Michigan, New York, Ohio, Oregon, South Carolina, Tennessee, Vermont and Washington. In addition, 16 were exploring drone usage, helping to develop polices or supporting research. They are Alaska, Colorado, California, Florida, Georgia, Hawaii, Iowa, Illinois, Kansas, Mississippi, New Hampshire, New Mexico, Nevada, North Dakota, Pennsylvania and West Virginia.

Find the NCSL report here and the AASHTO report here.

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