Copters 4 College

David J. VanDenBerghe, PS, CfedS

1160 Grovenburg Road

Holt, Michigan 48842

(517) 204-8755

djv@geodeticdesigns.com

Re: Request for Exemption under Section 333 of the FAA Modernization and Reform Act of 2012 and Part 11 of the Federal Aviation Reg ulations from Certain Provisions of

14 C.F.R.

Dear Sir or Madam:

Pursuant to Section 333 of the FAA Modernization an d Reform Act of 2012 (the Reform Act) and 14 C.F.R. Part 11, Copters 4 College (an o perator of Small Unmanned Aircraft Systems (“sUAs”) used for real estate photography a nd Land Surveying), files this petition for exemption. Specifically, petitioner seeks an exemp tion from the Federal Aviation Regulations (“FARs”) listed in Appendices A and B to allow comm ercial operation of its UAs, so long as such operations are conducted within and under the conditions outlined herein or as may be established by the FAA in a grant of this petition. This request is substantially similar to other data collection petitions previously approved, and should be considered under the expedited summary grant procedure. Additionally, this petitio n should be eligible for the summary grant because of the voluntary altitude restriction to 20 0 feet above ground level (AGL).

Approval of the exemption for petitioner will allow commercial operation of the DJI Phantom 3 Advanced for real estate photography and Land Surve ying in Class G airspace nationwide, or as otherwise prescribed by an Air Traffic Organization (ATO) issued COA. The UA covered by this petition is a small battery-powered craft, wei ghing approximately 2.87 lbs., inclusive of battery and payload.

Operation of the UAs under the strict conditions pr oposed below will provide an equivalent level of safety, as Congress intended, while still allowi ng commercial operations. Operations using these UAs are far safer than conventional operation s conducted with helicopters and fixed-wing aircraft that weigh thousands of pounds, carry high ly flammable fuel, and operate in close proximity to the ground, trees, infrastructure, and people.

Congress directed the FAA to consider seven factors in deciding whether to approve Section 333 exemption petitions - size, weight, spe ed, operational capability, proximity to airports, proximity to populated areas, and operati on within visual line of sight. In this case, each factor supports the exemption request. In part icular, the UA is small, and will operate at

slow speeds and close to the ground. It will be ab le to more safely and efficiently take aerial

photography of real estate and land surveying proje cts. The substantial increase of safety and

decrease of risk to human life and to property weig hs heavily in favor of granting the exemption.Petitioner seeks an exemption from the following ru les:

14 C.F.R 21(h); 14 C.F.R. 43.7; 14 C.F.R. 43.11; 14 C.F.R. 45.11; 14 C.F.R. 45.27; 14 C.F.R. 45.29; 14 CFR 61.23(a) and (c); 14 CFR 61 .101(e)(4) and (5) 14 CFR 61.113(a); 14 CFR 61.315(a); 14 C.F.R. 91.7(a); 14 C.F.R. 91.9(b)(2); 14 C.F.R. 91.9(c); 14 C.F.R. 91.103(b)(2); 14 C.F.R. 91.105; 14 C.F.R. 91.109; 14 C.F.R. 91.113(b); 14 C.F.R. 91.119(c); 14 C.F.R. 91.121; 1 4 C.F.R. 91.151(a); 14 C.F.R. 91.203(a) and (b); 14 C.F.R. 215; 14 C.F.R. 91.403; 14 C.F.R. 91.405(a); 14 C.F.R. 91.407(a)(1); 14 C.F.R. 409(a)(1) and (a)(2); and 1 4 C.F.R. 91.417(a) and (b) to operate commercially a small unmanned aircraft syst em (UA) to operate commercially a small unmanned aircraft system (UA) (2.74 lbs. or less).

Approval of the exemption requested by petitioner w ill allow commercial operation of the DJI Phantom 3 Advanced for real estate photography and land surveying in Class G airspace nationwide, or as otherwise prescribed by an Air Tr affic Organization (ATO) issued COA. The requested exemption should be granted because opera tion of small UAs, weighing approximately and 2.87 lbs. inclusive of battery and payload, con ducted in the strict conditions outlined below, will provide an equivalent level of safety, while s till allowing commercial operations. The lightweight aircraft covered by the exemption are f ar safer than conventional operations conducted with helicopters and fixed-wing aircraft weighing thousands of pounds and carrying highly flammable fuel, and operating in close proxi mity to the ground, trees, infrastructure, and people. The seven factors Congress directed the FAA to consider when approving Section 333 exemption petitions - size, weight, speed, operatio nal capability, proximity to airports, proximity to populated areas, and operation within visual lin e of sight – each support the request. In particular, the aircraft are small, and will operat e at slow speeds, and close to the ground in order to more safely and efficiently conduct inspections that would otherwise involve a risk of death to the inspectors. The substantial increase of safety and decrease of risk to human life, coupled with the low risk use of UAs to conduct these operations , weigh heavily in favor of granting the exemption.

Proposed Operations

A. The UA

The requested exemption will permit petitioner to o perate the DJI Phantom 3 Advanced. Please

refer to the end of this letter for further informa tion about this system.

B. The Crew

The crew will consist of a pilot in command (PIC) a nd a visual observer (VO). The PIC and VO will have been trained in operation of UA generally and received up-to-date information on the UA to be operated pursuant to this grant. The PIC w ill have completed, at a minimum, 20 hours of UA flight training with this specific UA prior t o operations, and will be required to participate in annual training thereafter.The specific conditions of the proposed exemption t hat relate to the training and characteristics

of the crew are numbers 6-10 in Section V below. Ea ch has been adopted or imposed by the FAA in numerous previous grants of Section 333 exem ption petitions.

C. Flight Conditions

The UA will be used to take real estate photography nationwide. It will be flown in Class G airspace under 200 feet above ground level (“AGL” ) and under controlled conditions over property that is restricted. Petitioner will work w ith the local FSDO when planning operations. Petitioner will only operate its UA in visual meteo rological conditions (VMC). The UA will at

all times be no less than 500 feet below and no les s than 2,000 feet horizontally from a cloud, and petitioner will not conduct operations unless v isibility is at least 3 statute miles from the PIC. The flight crew will always make a safety assessmen t of the risk of every operation, and will only operate when it is determined that no hazards are present.

The specific conditions of the proposed exemption t hat relate to the flight conditions in which the UA will be operated are numbers 27, 28, 2 9, and 34 in Section V below. Each has been adopted or imposed by the FAA in numerous prev ious grants of Section 333 exemption petitions.

D. Flight Operations

The purpose of every UA flight will be to safely, a ccurately, and efficiently take aerial photography for real estate and land surveying.

The specific conditions of the proposed exemption t hat relate to flight operations are numbers 2, 3, 11-18, 22-24, 26, 32, 33, 35, and 36 in Section V below. Each has been accepted or imposed by the FAA in numerous previous grants o f Section 333 exemption petitions.

IV. Aircraft and Equivalent Level of Safety

Petitioner proposes that the exemption apply to UAs that have the characteristics and that operate with the limitations proposed herein. These limitations provide for a level of safety at least equivalent to or higher than manned aircraft operations under the current regulatory

structure. Section V below identifies the limitatio ns and conditions to which petitioner agrees to be bound when conducting commercial operations unde r a grant of this petition. Appendix A contains a matrix connecting (i) the specific propo sed condition with (ii) the FAR provision for which it provides an equivalent level of safety and (iii) one or more recent Section 333 exemption grants in which the FAA recognized this e quivalent level of safety.

Approval of the commercial operations outlined in t his petition presents no national security issue. Petitioner is willing to require it s PICs to undergo a background check, including the proposed Transportation Security Administration Vetting process, to ensure that no national security threat is present. Operation and Certifica tion of Small Unmanned Aircraft, 80 Fed. Reg. 9543 at 9572 (proposed Feb. 23, 2015 (to be codifie d at 14 C.F.R. Parts 21, 43, 45, et al.).V. Proposed Conditions of the Exemption

1. The UAs will weigh 2.87 lbs.

2. UA operations under this exemption will be limit ed to conducting operations for the purpose of commercial real estate photography and land surv eying.

3. Flights will be operated within line of sight of the PIC and VO.

4. Flights will be operated at an altitude of no mo re than 200 feet AGL, as indicated by the procedures specified in the operating documents. Al l altitudes reported to ATC must be in

feet AGL.

5. The UA will not be flown at an indicated airspee d exceeding 30 knots.

6. Minimum flight crew for each operation will cons ist of the UA pilot in command (PIC) and a visual observer (VO).

7. The PIC will have, at minimum, 20 hours of train ing on the UA to be operated under this grant before accepting commercial operations.

8. The petitioner will not permit any PIC to operat e unless the PIC meets its qualification criteria and demonstrates the ability to safely ope rate the UA in a manner consistent with how the UA will be operated under this exemption, i ncluding evasive and emergency maneuvers and maintaining appropriate distances fro m persons, vessels, vehicles and structures. PIC qualification flight hours and curr ency will be logged in a manner consistent with 14 CFR § 61.51(b). A record of the PIC trainin g will be documented and made available upon request by the Administrator. Training operati ons will only be conducted during dedicated training sessions. During training, profi ciency, and experience-building flights, all persons not essential for flight operations will be considered nonparticipants, and the PIC will operate the UA with appropriate distance from nonparticipants in accordance with 14 CFR § 91.119.

9. The VO will not perform any other duties beyond assisting the PIC with seeing and avoiding other air traffic and other ground based obstacles/ obstructions, and will not be permitted to operate the camera or other instruments.

10. The PIC will be designated before the flight an d will not be allowed to transfer his or her designation for the duration of the flight. The PIC will ensure that the VO can perform the functions prescribed in these conditions and the op erating documents.

11. A briefing will be conducted in regard to the p lanned UA operations prior to each day’s activities. It will be mandatory that all personnel who will be performing duties in connection with the operations be present for this briefing.12. Prior to each flight, the PIC will inspect the UA, including the Ground Control Station, to

ensure it is in a condition for safe flight. If the inspection reveals a condition that affects the safe operation of the UA, the PIC will not operate the UA until the necessary maintenance has been performed and the UA is found to be in a c ondition for safe flight. All maintenance and alterations will be properly documented in the aircraft records.

13. Petitioner will conduct a functional flight tes t on any UA that has undergone maintenance or alterations that affect the UA operation or flight characteristics, e.g. replacement of a flight critical component. The PIC who conducts the functi onal test flight will make an entry in the

aircraft records.

14. The petitioner will carry out its maintenance, inspections, and record keeping requirements,

in accordance with the UA manufacturer’s aircraft/c omponent, maintenance, overhaul, replacement, inspection, and life limit requirement s set forth in the operating documents. Maintenance, inspection, alterations, and status of replacement/overhaul component parts will be noted in the aircraft records, including to tal time in service, description of work accomplished, and the signature of the authorized p erson returning the UA to service. The authorized person will make an entry in the aircraf t record of the corrective action taken against discrepancies discovered between inspection s.

15. The UA will be operated within visual line of s ight (VLOS) of the PIC and VO at all times. This requires the PIC to be able to use human visio n unaided by any device other than

corrective lenses. PIC and VO will at all times be able to communicate verbally. They will not be permitted to use electronic messaging or tex ting to communicate during flight operations.

16. The PIC will not begin a flight unless (conside ring wind and forecast weather conditions) there is enough power to fly at normal cruising spe ed to the intended landing point and land the UA with 25% battery power remaining.

17. Actual total flight time for each operational f light will result in no less than a 25% battery

reserve.

18. The UA will have the capability to abort a flig ht in case of unexpected obstacles or emergencies.

19. The UA will be programmed so that if it loses c ommunications or loses its GPS signal, it will return to a pre-determined location within the plan ned operating area and land or be recovered in accordance with the operating document s.

20. If the UA and its radio control link disconnect during flight, the system’s failsafe protection will be triggered and the multi rotor will return t o home and land automatically, rather than flying off uncontrollably or landing at an unknown location.21. The operating documents required under 14 CFR § § 91.9 and 91.203 will be maintained and

available to the PIC at the Ground Control Station of the UA any time the UA is operating.

These documents will be made available to the Admin istrator or any law enforcement official upon request. If a discrepancy exists between the c onditions and limitations in the exemption grant and the procedures outlined in the operating documents, the grant conditions and limitations will take precedence and will be follow ed. Otherwise, the petitioner will follow the procedures outlined in its operating documents. If it updates or revises its operating documents, it will present updated and revised docu ments to the Administrator upon request. If the petitioner determines that any update or rev ision would affect the basis upon which the FAA granted the exemption, then the Petitioner will petition for an amendment to the grant of exemption.

22. Petitioner will obtain written and/or oral perm ission from the landowners/authorized agents of the landowners over which flights will be conduc ted.

23. Petitioner will obtain all required permissions and permits from territorial, state, county or city jurisdictions, including local law enforcement , fire, or other appropriate governmental agencies.

24. UA operations will not be conducted during nigh t, as defined in 14 CFR § 1.1. All operations will be conducted under visual meteorological condi tions (VMC). Flights will not be conducted under special visual flight rules (SVFR).

25. The petitioner will obtain an Air Traffic Organ ization (ATO) issued Certificate of Waiver or Authorization (COA) prior to conducting any operati ons under the grant of exemption. Petitioner will request a Notice to Airman (NOTAM) not more than 72 hours in advance, but not less than 48 hours prior to the operation. All operations will be conducted in accordance with airspace requirements in the ATO issued COA, i ncluding class of airspace, and altitude

level.

26. The UA will not be operated within 5 nautical m iles of an airport reference point as denoted on a current FAA-published aeronautical chart unles s a letter of agreement with that airport’s management has been obtained, and the operation is conducted in accordance with a NOTAM as required by the operator’s COA. Any letter of agreement with the airport management will be made available to the Administra tor upon request.

27. The UA will not be operated less than 500 feet below, or less than 2,000 feet horizontally from, a cloud or when visibility is less than 3 sta tute miles from the PIC.

28. All operations shall be conducted in Class G ai rspace or as otherwise prescribed in an ATO

issued COA.

29. All aircraft operated in accordance with this e xemption will be identified by serial number, registered in accordance with 14 CFR part 47, and h ave identification (N-Number) markings in accordance with 14 CFR part 45, Subpart C. Marki ngs will be as large as practicable.30. Before conducting operations, petitioner will e nsure that the radio frequency spectrum used

for operation and control of the UA complies with t he Federal Communications Commission (FCC) or other appropriate government oversight age ncy requirements.

31. The UA will remain clear and yield the right of way to all manned aviation operations and

activities at all times.

32. The UA will not be operated by the PIC from any moving device or vehicle.

33. Petitioner will conduct all flight operations a t least 500 feet from all nonparticipating persons, vessels, vehicles, and structures unless o ne of the following three conditions is met:

a. Barriers or structures are present that sufficie ntly protect nonparticipating persons from

the UA and/or debris in the event of an accident. The petitioner will ensure that nonparticipating persons remain under such protect ion. If a situation arises where nonparticipating persons leave such protection and are within 500 feet of the UA, the PIC will ensure that flight operations cease immediate ly.

b. The aircraft is operated near vessels, vehicles or structures where the owner/controller of such vessels, vehicles or structures has granted p ermission and the PIC has made a safety assessment of the risk of operating closer to thos e objects and determined that it does not present an undue hazard.

c. Operations nearer to the PIC, VO, operator train ees or essential persons do not present an undue hazard to those persons per § 91.119(a).

34. Petitioner will report any incident, accident, or flight operation that transgresses the lateral o r vertical boundaries of the operational area as defi ned by the applicable COA to the FAA's UA Integration Office (AFS-80) within 24 hours. Pet itioner will report accidents to the National Transportation Safety Board (NTSB) per ins tructions contained on the NTSB Web site: www.ntsb.gov.

VI. Privacy

There is little concern that the proposed flights w ill cause invasions of privacy because all flights will occur over private property with the l andowner’s/authorized agent’s permission. When the UA is being flown, the onboard cameras wil l be focused on the specific property and thus turned so as to be facing away from any occupi ed structures that may be in the area to minimize inadvertent video or still images of uninv olved persons.

VII. Public Interest and Safety

The planned UA use will increase ground safety for real estate photography. The enhanced safety and reduced environmental impact ac hieved using a UA with the specifications described by the petitioner and carrying no passeng ers or crew, rather than a manned aircraft of significantly greater proportions, carrying crew in addition to flammable fuel, gives the FAAgood cause to find that the UA operation enabled by this exemption is in the public interest.

Satisfaction of the criteria provided in Section 33 3 of the Reform Act of 2012 – size, weight, speed, operating capabilities, proximity to airports and populated areas and operation within visual line of sight and national security – provide more than adequate justification for the grant of the requested exemption allowing commercia l operation of petitioner’s UA in the purposes of commercial real estate photography and land surveying. The FAA has previously approved members of the DJI Phantom family for real estate photography in Exemption Nos. 11191, 11195, 11271, 11295, 11300, and 11318.

The small weight of the Phantom UA family, ranging from 2.2 lbs. to 2.74 lbs. (1 kg. to 1.24 kg.), is less than the size envisioned in Sect ion 334(c)(2)(C) of the FAA Modernization and Reform Act of 2012, which allows government agencie s “to operate unmanned aircraft weighing 4.4 pounds or less, if operated –

i. within the line of sight of the operator; ii. less than 400 feet above the ground; iii. during daylight conditions; iv. within Class G airspace; and v. outside of 5 statute miles from any airport, he liport, seaplane base, spaceport, or

other location with aviation activities.”

Congress’s determination that government agencies s hould be allowed to operate such aircraft in these situations, with no further restr ictions on location, population density, or pilot experience and training, indicates that Congress di d not believe that aircraft of this size and weight warranted additional attention.

argument for exemption from 14 CFR §§ 61.23(a) and (c), 61.101(e)(4) and (5), 61.113(a), 61.315(a). Copters 4 College requests an exemption from 14 CFR §§ 61.23(a) and (c), 61.101(e)(4) and (5), 61.113(a), 61.315(a), so that the PIC of the U A will not be required to possess any pilot license (sports, recreational, private or commercia l). As the FAA and numerous other national airspace regulators have recognized, UA operations conducted by persons who do not hold a pilot’s license can still achieve the equivalent le vel of safety of current operations by manned aircraft with pilots holding any level of pilot’s l icense.

Although it recognizes that a pilot’s license is un necessary for safe UA operation, the FAA has to date declined to allow grant exemptions under Section 333 that would permit individuals who possess any pilot license (sports, recreational, private or commercial) to conduct commercial UA operations. It has specified two reas ons for declining to do so. First, it has stated that it does not possess the authority under Sectio n 333 to exempt individuals from the requirement under 49 U.S.C. §44711 to hold an airma n certificate authorizing the airman to serve in the capacity for which the certificate was issued. Exemption No. 11110 at 14. Second, the FAA has concluded that the Department of Homela nd Security (DHS) security screening required of all certified airmen meets the statutor y requirement in Section 333 that operations not pose a threat to national security. Exemption No. 1 1110 at 15.Copters 4 College respectfully requests that the FAA reconsider its position. There is no

dispute that it is unnecessary for an operator of a UA to go through the rigorous process of becoming a certified pilot in order to safely opera te a UA. In addition, the FAA does have the authority to exempt UA operators from the requireme nt in 49 U.S.C. §44711to hold an airman certificate for “serv[ing] in the capacity for whic h the certificate was issued.” Indeed, it has exercised that authority repeatedly in the Section 333 process. Finally, the FAA’s security concerns can be addressed by a variety of methods i nvolving operator background checks to be conducted by government agencies.

1. The FAA and foreign regulators recognize that o btaining a manned aircraft pilot license is unnecessary for safe operation of a UA.

The FAA, like the other national airspace regulato rs that have considered the issue, has concluded that UA operations conducted by persons w ho do not hold a pilot’s license can still achieve the equivalent level of safety of current o perations by manned aircraft with pilots holding any level of pilot’s license. In its recent UAS NPRM, the FAA stated:

“While these airman certification requirements are necessary for manned aircraft operations, they impose an unnecessary burden for m any small UAS operations. This is because a person typically obtains a privat e or commercial pilot certificate by learning how to operate a manned aircraft. Much of that knowledge would not be applicable to small UAS operations because a sma ll UAS is operated differently than manned aircraft. In addition, the knowledge currently necessary to obtain a private or commercial pilot certificate wo uld not equip the certificate holder with the tools necessary to safely operate a small UAS... Thus, requiring persons wishing to operate a small UAS to obtain a private or commercial pilot certificate imposes the cost of certification on th ose persons, but does not result in a significant safety benefit because the process of obtaining the certificate does not equip those persons with the tools necessary to mitigate the public risk posed by small UAS operations.” Operation and Certificati on of Small Unmanned Aircraft, 80 Fed. Reg. 9543 at 9550 (proposed Feb. 23, 2015 (to be codified at 14 C.F.R. Parts 21, 43, 45, et al.).

The FAA’s conclusion that manned aircraft flying e xperience is unnecessary for the operation of a UA is supported by research by the F AA and the Army Research Laboratory. They demonstrate that UAs, even those much larger t han the UAs proposed by TourFactory, can be safely flown by non-certificated pilots with a s mall amount of training. For example, one Army Research Laboratory study concluded:

"[T]he specific motor skills needed to control the radio-controlled UAV would have to be learned by aviators independently of the motor skills learned in flying an aircraft. In particular, the somatic and visual cues that pilots use during aircraft landings would not be useful (and perhaps even coun ter-productive) for the different skill sets and perceptual viewpoint neces sary for radio-controlled landings.” 1Additional research reports lend further support f or the exclusion requested. For example, a report sponsored by the FAA concluded th at "We know that certain systems, like the U.S. Army Hunter and Shadow systems, are successful ly flown by pilots with no manned aircraft experience." 2

In addition, foreign government airspace regulators that have examined the issue have consistently recognized that the skills required to fly a manned aircraft are irrelevant to operating a UA. For that reason, they have concluded that UA operators do not need to have a private or commercial pilot’s license. Canada, for example, do es not require a pilot’s license to operate a UA. Transport Canada requires training of UA operat ors, but that training is limited to pilot ground school and flight operation training on UAs, not manned aircraft. 3 Moreover, Canada allows this training to be “provided by other pilot s, manufacturers, [UA] flight training organizations or . . . self taught.” 4

___________________________________________________ ___________ 1 Michael J. Barnes, Beverly G. Knapp, Barry W. Til lman, Brett A. Walters & Darlene Veliki, Crew systems analysis of unmanned aerial vehicle (U AV) future job and tasking environments

, Technical Report ARL-TR-2081, Aberdeen Proving Grou nd, MD: Army Research Laboratory, page 12 (2000), available at http://www.dtic.mil/dtic/tr/fulltext/u2/a374230.pdf

. 2 Kevin W. Williams, Unmanned Aircraft Pilot Medical Certification Requi rements, Report DOT/FAA/AM-07/3, FAA Civil Aerospace Medical Instit ute, page 2, (2007), available at http://fas.org/irp/program/collect/ua-pilot.pdf . While the authors speculated that UA use in populated areas may change this assessment, indicat ing further research was needed to address this concern, this concern is inapplicable as TourF actory’s flights will not be in congested areas.

See also Jason S. McCarley & Christopher D. Wickens, Human Factors Implications of UAVs in the National Airspace , Institute of Aviation, Aviation Human Factors Div ision, University of Illinois at Urbana-Champaign, 13 (2004), available at http://www.tc.faa.gov/logistics/grants/pdf/2004/04- G-032.pdf

3 See Civil Aviation, Standards, Transport Canada, Adviso ry Circular: Guidance Material for Operating Unmanned Air Vehicle Systems under an Exe mption at 14 and 18-22, (Nov. 27, 2014)

available at http://www.tc.gc.ca/media/documents/ca-opssvs/ac-60 0-004.pdf

. 4 Id. at 14.Similarly, the United Kingdom’s Civil Aviation Aut hority (CAA) recognized that

determining “Remote Pilot qualification requirement s on the same basis as manned aircraft may yield requirements that are too inflexible, too one rous and inappropriate for UAS operations.” 5 As a result, the CAA only requires UA operators to demonstrate UA operator competence. 6 While there are a variety of ways to demonstrate co mpetence, the most common is to complete a course that will lead to a ground exam and flight t est. Australia, too, requires only passage of a UA-specific ground school program in lieu of a mann ed airman certificate. 7 Finally, more than a dozen countries, including Germany, Italy, France, Spain and the Netherlands, have adopted the

National UAS Certificate for Small Unmanned Aircraf t (BNUC-S) Standard for UA pilot

certification. 8 This standard results in a type-specific UA certifi cate and does not require the operator to have a pilot’s license. The process inv olves taking a short ground school course, passing a ground school test and then passing a pra ctical test on commercial operation of the specific UA per the UA manufacturer’s operations ma nual.

All of this experience and evidence indicates that the proposed exemption will provide a greater level of safety than operations under 14 C. F.R. §61.113. In this instance, the PICs will have gone through training as described above in Se ction III B. This training and education is focused on UAs generally, and in particular on the aircraft to be operated, rather than taking

additional time and risk to train on a manned aircr aft, weighing several thousand pounds and carrying highly flammable fuel.

The FAA has concluded in the NPRM that such UA-spe cific training is more than sufficient to provide an equivalent level of safety for UA operations. Sometime in the next 18- 24 months, that position will be enshrined in a val id regulation. However, in the meantime, the FAA claims it lacks the authority to relax the requ irement to possess a pilot certificate. As we show in the next section, that position is both inc orrect and contradicted by the FAA’s recent

decisions.

2. The FAA does have, and has already, exercised t he authority to exempt petitioners from the airman certificate requiremen t.

The FAA claims that it lacks authority to exempt U A operators from the requirement of 49 U.S. §44711 to hold an airman certificate author izing the airman “to serve in the capacity for which the certificate was issued.” See, e.g., Exemp tion No. 11110 at 14. This claim is inconsistent with both (i) the statutory language o f that section and Section 333, and (ii)

numerous recent FAA decisions.

5 Civil Aviation Authority, Safety Regulation Group , Unmanned Aircraft System Operations in UK Airspac e – Guidance, Section 2, Chapter 5, Page 2 (Aug. 10, 20 12), available at https://www.caa.co.uk/docs/33/CAP722.pdf

. 6 Civil Aviation Authority, Unmanned Aircraft and A ircraft Systems, available at http://www.caa.co.uk/default.aspx?catid=1995&pagety pe=90 7 Australian Government Civil Aviation Safety Autho rity, available at http://www.casa.gov.au/scripts/nc.dll?WCMS:STANDARD ::pc=PC_100374

. 8 See EuroUSC International, “Pilot Qualification,” available at http://eurousc.com/services/pilot-qualifications/

.The operative part of 49 USC §44711 provides that a “person may not . . . serve in any

capacity as an airman with respect to a civil aircr aft, . . . used, or intended for use, in air commerce — (A) without an airman certificate author izing the airman to serve in the capacity

for which the certificate was issued . . . “ If the FAA’s interpretation were correct, this language would require that any person wishing to operate a UA for commercial operations have an airman certificate authorizing the person to serve as an airman in commercial operations.

However, in all of its recent grants of Section 33 3 petitions, the FAA has – without explicitly acknowledging the fact - exempted commer cial UA operators from the §44711(A) requirement that they hold an airman certificate au thorizing them “to serve in the capacity for

which the certificate was issued.” It has done so b y allowing them to operate UA so long as they hold a private pilot’s or sport pilot’s authorizati on, even though such a certificate does not permit commercial operations. Exemption No. 11062 at 15-18 ; Exemption No. 11110 at 14-16; Exemption No. 11191 at 3-5; and Exemption No. 11229 at 3 and 8.

The FAA argues that it cannot exempt petitioners f rom the requirements of §44711 because, while the specific language of Section 333 grants it limited statutory flexibility relative to 49 U.S.C. §44704 for the purposes of airworthine ss certification, Section 333 does not provide flexibility relative to §44711 and other sections o f Title 49. Exemption No. 11110 at 14. This argument ignores the plain language of Section 333. The relevant language of Section 333 is:

(a) IN GENERAL.—Notwithstanding any other requireme nt of this subtitle, and not later than 180 days after the date of enactment of this Act, the Secretary of Transportation shall determine if certain unmanned aircraft systems may operate safely in the national airspace system before compl etion of the plan and rulemaking required by section 332 of this Act or t he guidance required by

section 334 of this Act. (b) ASSESSMENT OF UNMANNED AIRCRAFT SYSTEMS.—In mak ing the determination under subsection (a), the Secretary s hall determine, at a

minimum— (1) which types of unmanned aircraft systems, if an y, as a result of their size, weight, speed, operational capability, proximity to airports and populated areas, and operation within visual line of sight do not cr eate a hazard to users of the national airspace system or the public or pose a th reat to national security; and (2) whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 of title 49, Unit ed States Code, is required for the operation of unmanned aircraft systems identifi ed under paragraph (1). (c) REQUIREMENTS FOR SAFE OPERATION.—If the Secreta ry determines

under this section that certain unmanned aircraft s ystems may operate safely in the national airspace system, the Secretary shall e stablish requirements for the safe operation of such aircraft systems in the nati onal airspace system.

The language of Section 333(b) is permissive: it r equires that the Secretary “determine, at a minimum . . . whether a certificate of waiver, certificate of authorization, or airworthiness certification under section 44704 of title 49, Unit ed States Code, is required for the operation of unmanned aircraft systems identified under paragrap h (1).” Nothing in (b) precludes theSecretary from determining whether or not a pilot’s license is required for operation of a UA

identified under paragraph (b)(1).

Indeed, the FAA has implicitly conceded the point b y granting exemptions from the requirement that commercial UA operators hold a com mercial pilot certificate. From an analytical standpoint, there is no difference betwe en granting an exemption from the commercial pilot’s license requirement and granting an exempti on from the private or sport pilot’s license requirement. Both are clearly exemptions from a spe cific statutory requirement in 49 U.S.C. §44711. If the FAA has the statutory authority unde r Section 333(b) to do the former, it has the same authority to do the latter. 9

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9 The FAA has not specifically identified the statuto ry provision that underpins its authority to grant the exemptions from the commercial pilot’s li cense requirement. Whether the statutory basis is Section 333 or some other provision makes no difference. If there is a basis for a partial exemption from in 49 U.S.C. § 44711, that basis als o justifies an exemption from the entire provision.