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March 26, 2021 Feature

Drone Law and Policy: Lifting Off or Stalling the Industry?

Col. Dawn M. K. Zoldi (retired)

During the COVID-19 pandemic, drones have emerged as the ultimate social distancer: delivering medical supplies, helping public safety organizations to support communities, disinfecting workplaces and hospitals, and more. For example, Walmart is now delivering home self-collection and contactless at-home COVID test kits to customers in multiple states. These operations were made possible through forward-leaning regulatory applications. This good news is tempered by proposals that have the potential to stymie some operations. What happens today in drone law and regulation will set the stage for the future of advanced air mobility (AAM; think: flying autonomous taxis). This article will fly over the latest developments at a thirty-thousand-foot view.

Will drone law and policy enable the commercial industry to take off—or will they ground the fleet?

Getting “RID” of Security Problems?

In December 2019, the Federal Aviation Authority (FAA) promulgated a Notice of Public Rulemaking (NPRM), titled Remote Identification (RID) of Unmanned Aircraft Systems.1 The formal comment period closed on March 2, 2020. The FAA received 53,000 comments. On December 28, 2020, about a year later, the FAA published an advance copy of the final rule, which appeared in the Federal Register officially on January 15, 2021, and created a new Part 89 in Title 14 of the Code of Federal Regulations.2 The rule is effective sixty days from publication; operators have thirty months and manufacturers have eighteen months therefrom to comply.

The stated purpose of the RID rule is to ensure public safety and the safety and efficiency of U.S. national airspace (NAS) airspace by enabling the FAA and security partners to have near real-time situational awareness of small drone flights by way of a “digital license plate.” A few significant changes occurred from the original proposal to the final version, the most notable of which is the removal of a “network-based” (internet) solution for RID. It is now “broadcast” (radio frequency) only. For the sake of brevity, a high-level overview follows.

The RID rule generally applies to drones weighing between 0.55 and 55 pounds (lbs.) that must be registered with the FAA. Such drones must either comply in one of two ways or fly in a federally recognized identification area (FRIA). The two ways to comply are as follows:

  1. Standard RID. These drones will be “hard wired” with RID capabilities and will not be able to take off if they cannot broadcast required message elements.
  2. Broadcast RID Modules. This is a way to comply by attaching a separate device to the drone for broadcasting message elements. These drones must remain within the visual line of sight of the pilot.

Drones without RID will be able to only fly in FRIAs. Policy to establish a FRIA is yet to be determined, but community-based organizations and educational institutions can apply to establish them. More to follow.

Message elements (MEs) are the same for Broadcast RID as for Standard RID drones except that there is no control station location (replaced by take-off location), emergency status is not required, and there is no session ID option. Otherwise, they will both need to “beam out” a unique identifier to establish the identity of the drone (serial number or session ID); drone latitude, longitude, geometric altitude, and velocity; control station latitude, longitude, and geometric altitude (Standard only); time mark; and emergency status indication.

These MEs will all be available to the public likely through Bluetooth or Wi-Fi (tech to be determined). Law enforcement and security agencies will be able to triangulate ME information with the FAA drone registration database.

The FAA believes RID will be the linchpin to advancing drone operations, including deliveries and operations over people, and creating an unmanned traffic management (UTM) system.

Although the final rule is now published, much remains to be seen, including the required tech to make it happen, potential legal challenges to it, and determination of how it will be implemented and enforced. This rule is critical and will determine the trajectory of the industry.

Drones Deliver—Even over People and Moving Vehicles

During the pandemic, drone deliveries received much attention. On-demand nonscheduled delivery operations for hire typically require a 14 C.F.R. Part 135 Cargo Carrying Certificate. In 2019, the FAA approved Google’s company Wing as the first Part 135 drone airline. Later that year, the FAA gave the second such approval to UPS Flight Forward and Swiss company Matternet, in partnership with North Carolina’s Department of Transportation (NCDOT). There were only a few such success stories, as obtaining a Part 135 operating certificate involves a lengthy and complicated certification process. Made for manned aircraft, many Part 135 requirements simply don’t fit when it comes to drones.

Taking a different approach, DroneUp, a drone services company, tested whether package delivery could occur under Part 107.3 Part 107 largely enables small drone operations (under 55 pounds), providing rules for their operation without requiring an FAA airworthiness certification. Until recently (more below) absent an FAA waiver, though, Part 107 operations could not occur over persons, at night, above an altitude of 400 feet above ground level (AGLY), or beyond visual line of sight (BVLOS).

In April 2020, DroneUp partnered with Virginia’s Center for Innovative Technology to conduct exercises on the vacant St. Paul’s College campus. They used Part 107 certified pilots and commercially available drones to deliver round-trip payloads successfully and repeatedly to specific targets under existing rules, proving that last-mile drone delivery is workable.4 Running operations with a military-like concept of operations (CONOPS), DroneUp is now delivering home self-collection and contactless at-home COVID test kits to Walmart customers in three states.

To further facilitate that, in late 2020, DroneUp also received the first operations-over-people waiver under 14 C.F.R. § 107.39(a) and (b). This first-of-its-kind waiver (outside of FAA test sites or fixed areas) will allow small drone operations over human beings who are not direct participants, necessary for the safe operation of the small, unmanned aircraft flight, and over moving vehicles.

Even bigger news, though, is that waivers to operate over people will soon not be required. The FAA published its final rule on Operation of Small Unmanned Aircraft Systems over People (Ops over People or OOP) on the same day as the final RID rule.5 It amends 14 C.F.R. Part 107 by adding subpart D, allowing for certain operations of small drones over people, including routine operations over moving vehicles and night operations. It is effective sixty days from publication in the Federal Register, which would be March 16, 2021.

The rule, like many others the FAA produces, is risk-based. It creates four categories of operations, based on size and the type of operation, and levies additional requirements as the risk increases. Category 1, for very small drones (0.55 lb. or less) is the lowest risk and can operate flexibly without additional paperwork, so long as the blades cannot lacerate human skin. Categories 2 and 3, for progressively larger drones (still under 55 lbs.), are tied to the RID requirements. These will take much longer to implement. Category 4 is for drones that have an airworthiness certificate under Part 21. These must be operated in accordance with the operating limitations specified in their approved flight manuals. This summary is admittedly oversimplified, and practitioners must review the rule itself, as it contains many nuances and requirements.

Is this a watershed moment for the scalability of commercial drone deliveries? Will we see others attempt Part 107 deliveries? Will the FAA relook at reshaping Part 135 requirements for drone delivery? Expect to see more in the drone delivery arena in 2021 and beyond.

Just My Type

Until recently, drones larger than 55 pounds or otherwise operating outside of Part 107’s requirements had to receive an airworthiness certification, a waiver, or an exemption, as appropriate. On September 18, 2020, the FAA published a policy on Type Certification of Certain Unmanned Aircraft Systems that formalized the FAA’s processes for type-certifying these aircraft.6

Aircraft must be airworthy. It is the FAA’s role to provide criteria and related type certificates for that purpose.7 This requires that the craft be properly designed and manufactured, perform properly, and meet the regulations and minimum standards for type certification. Title 14 C.F.R. contains requirements for airworthiness and type certification for normal category airplanes (Part 23), transport category airplanes (Part 25), normal category rotorcraft (Part 27), transport category rotorcraft (Part 29), manned free balloons (Part 31), aircraft engines (Part 33), and propellers (Part 35). These rules are old and were amended as far back as1987 to add a “special class category” for aircraft that would be eligible for a standard airworthiness certificate but not for the listed certification standards due to their “unique, novel, or unusual design features.”8 And so section 21.17(b) was created to certify special classes of aircraft for which airworthiness standards have not been issued, using portions of those existing standards contained in parts 23, 25, 27, 29, 31, 33, and 35 as appropriate.

On their face, all these rules were written for manned aircraft and do not quite fit the reality of unmanned vehicle design. One such mismatch is the requirement for wheel-and-brake landing gear, which drones do not have but compensate for with launch and recovery systems. These “unique, novel, and/or unusual features” are exactly what the FAA’s type certification in the special class category was meant to accommodate.9

Fast forward to September 2020. This new policy allows drones with no occupants onboard to be type certificated as a ‘‘special class’’ of aircraft under 14 C.F.R. § 21.17(b). For aircraft and rotorcraft UAS designs, where the airworthiness standards in part 23, 25, 27, or 29, respectively, are appropriate for the certification, the 14 C.F.R. § 21.17(a) process applies.

Why does this matter? It is a steppingstone to opening the skies for a wider range of unmanned aircraft that are performing complex operations (e.g., over people, beyond visual line of sight, for package deliveries). It makes life easier for Part 107 operators whose aircraft get type-certificated because if making a use case for a particular advanced operation, the box on aircraft design safety will already be checked. Once we have type certified drones, it is possible that the FAA will move away from the one-off exemption framework and allow repeatable and scalable operations.

Housekeeping—Model Aircraft

On December 11, 2020, the FAA published a rule to clean up its regulations to match changes in the law regarding recreational drones.10 Specifically, it removes 14 C.F.R. Part 101, subpart E, and aligns FAA regulations with the FAA Reauthorization Act of 2018.11 Section 349 of the 2018 law repealed the earlier prohibitions on FAA rulemaking for model aircraft in the FAA Modernization and Reform Act of 2012,12 and later codified in the 2016 rule Operation and Certification of Small Unmanned Aircraft Systems as subpart E to 14 C.F.R. Part 101.13 The 2018 law levied a few requirements on recreational drone users, including the requirement to take an aeronautical knowledge and safety test. It also placed a marker down for FAA regulation of hobby drones regarding operational parameters, registration and marking, and application of RID standards and other safety and security standards.

BEYOND Current Rules

BEYOND, the next phase of the FAA’s Integrated Pilot Program (IPP), began in October 2020. It is a research collaboration between the FAA and other organizations that, in turn, partner with industry. Eight of the nine original IPP lead participants will continue their work in BEYOND, including NCDOT. The work here is significant. The drone airlines mentioned above both received FAA approvals through the IPP.

BEYOND research will inform drone regulation. Focus areas include repeatable, scalable, and economically viable BVLOS operations, the analysis and quantification of drone societal and economic benefits, and the collection, analysis, and engagement with the community on concerns about drones. Also relevant to legal practitioners who advise drone clients, there are opportunities for industry to partner with BEYOND lead participants and other entities that are involved in the program.

Seeing BVLOS

Seeing and avoiding aircraft is the linchpin of FAA regulation and NAS safety. Operating rules under Part 107 are rooted in the assumption that the remote pilot in command (RPIC) has physical eyes on the drone during the entire flight and can see and avoid hazards.

Although we currently have detect-and-avoid (DAA) technology, the FAA still views BVLOS operations with caution. As mentioned, to fly BVLOS, a small drone operator requires a Part 107 waiver. The FAA grants those waivers only when it is comfortable that the CONOPS will fulfill all safety requirements, often hinging on DAA tech use and employment.

As BVLOS is the key to scalable and repeatable drone operations in many markets, the BEYOND program is focusing on it. North Dakota DOT, in partnership with the North Plains UAS Test Site, has launched Vantis, a statewide infrastructure network to support BVLOS operations.

External to the BEYOND program, a group under the direction of nonprofit DRONERESPONDERS obtained a tactical BVLOS (TBVLOS) waiver under 14 C.F.R. § 91.113(b) (as opposed to Part 107). Once applied for and granted, public responders can use this blanket approval during extreme emergencies to safeguard human life and assess the operational environment.

Many call BVLOS “the holy grail” of drone operations, but some have found the chalice and are already drinking from it. Expect to see additional BVLOS success stories going forward.

Managing All That Traffic

Unmanned traffic management (UTM) will govern how manned and unmanned aircraft can coexist safely in the NAS.

The FAA’s NextGen Office recently published its UTM CONOPS version 2.0, addressing increasingly complex operations in both controlled and uncontrolled air environments. It primarily focuses on UTM operations below 400 feet AGL and addresses UTM operations within and across uncontrolled (Class G) and controlled (Classes B, C, D, and E) airspace. Within the UTM ecosystem, the FAA will maintain regulatory and operational authority for airspace and traffic operations. However, operations will be organized, coordinated, and managed by a federated set of actors, including USS, in a distributed network of highly automated systems through application programming interfaces.

All of this is a work in progress, which is why the FAA is working closely with the National Aeronautical and Space Agency (NASA). Together, they kicked off an AAM National Campaign and related workshops. NASA announced an Urban Air Mobility (UAM/AAM) Grand Challenge and has entered into Space Act agreements with seventeen aviation companies such as Bell, Uber, Boeing, AirMap, and GE’s AiRXOS to conduct developmental testing (DT).

On the international scale, the International Civil Aviation Authority (ICAO) has hosted a series of UTM webinars; created a UAS Advisory Group, ICAO UAS Toolkit, and a UTM Request for Information Process; and will host an April 2021 DRONE ENABLE Symposium.

UTM for drones will drive AAM infrastructure, processes, and regulation. The removal of a network/internet-based solution for RID may impact the speed of progress of UTM implementation, as it was core to the UTM concept. Continue watching UTM developments as they will literally impact take-offs and landings.

The Sky’s the Limit, Unless We Place Limits

It is critical that lawyers practicing in the tech arena have a basic understanding of the latest drone technologies and the regulations that will shape how high this nascent industry will fly. For the most part, the required technology for safe and integrated operations already exists. Recent drones-for-good stories are encouraging, but much more can be done for the good of society now and tomorrow. Drones will shape our future. BVLOS, UTM, and RID are all stepping stones to the next wave of technological advances. As lawyers, we have a noble calling and related responsibility to help our clients leverage technology for the global good. This article is a starting point for understanding. Each of these topics individually lends itself to in-depth review and should be explored further so that we can all help the commercial drone industry fly!


1. Fed. Aviation Admin. (FAA), Remote Identification of Unmanned Aircraft Systems, 84 Fed. Reg. 72,438 (Dec. 31, 2019).

2. FAA, Remote Identification of Unmanned Aircraft, Final Rule, 86 Fed. Reg. 4390 (Jan. 15, 2021).

3. FAA, Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg. 42,063 (June 28, 2016),

4. See Miriam McNabb, Last Mile Drone Delivery: Testing the Limits of Commercial Operations, DroneLife (June 3, 2020),

5. FAA, Operation of Small Unmanned Aircraft Systems over People, 86 Fed. Reg. 4314 (Jan. 15, 2021).

6. FAA, Type Certification of Certain Unmanned Aircraft Systems, 85 Fed. Reg. 58,251 (Sept. 18, 2020),

7. 49 U.S.C. §§ 44701(a), 44704.

8. FAA, Designation of Applicable Regulations for the Type Certification and Airworthiness Certification of Special Classes of Aircraft, 52 Fed. Reg. 8040 (Mar. 13, 1987).

9. Id. at 8041.

10. FAA, Removal of the Special Rule for Model Aircraft, 85 Fed. Reg. 79,823 (Dec. 11, 2020).

11. FAA Reauthorization Act of 2018, Pub. L. No. 115-254, 132 Stat. 3186.

12. FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 336, 126 Stat. 11, 77–78.

13. FAA, Operation and Certification of Small Unmanned Aircraft Systems, 81 Fed. Reg 42,064 (June 28, 2016).

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Col. Dawn M. K. Zoldi (retired)

Col. Dawn M. K. Zoldi (retired) USAF is a licensed attorney, a twenty-five-year Air Force JAG Corps veteran, an internationally recognized expert on unmanned aircraft system law and policy, and the CEO and founder of P3 Tech Consulting LLC.