Can I Legally Fly a Drone Over People?
The Part 107 regulations were implemented by the FAA starting August 2016. These regulations implemented standards and restrictions on all drone flight for commercial purposes. Commercial applications include commercial drone photography, inspection of infrastructure, security surveillance, and various other profit-generating activities.
One of the restrictions made by the Part 107 regulations is against drone flight over humans or populated areas. Questions regarding this restriction have become very common ever since the Part 107 restrictions were enacted. Particularly, many drone pilots have been asking what constitutes flight over a populated area and if there was a way to legally do it. In this article, we attempt to answer these questions by taking a detailed look at the regulations and how commercial pilots have been able to work around them so far.
What does the Part 107 regulations say?
Section 107.39 of the Part 107 regulations are stated as follows:
“No person may operate a small unmanned aircraft over a human being unless that human being is:
- Directly participating in the operation of the small unmanned aircraft; or
- Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft”
The actual resolution is very short, but there are a few salient points to this restriction that we would like to expound on.
1. Participating vs. Consenting
Take note that the FAA clearly states that flight is only allowed over individuals participating in the flight activity, which primarily includes the remote pilot-in-command (PIC) and the visual observer (VO). This does not include bystanders or viewers of the activity, even if they have given consent to the operators to have the drone fly over them.
The exclusion of consenting individuals from the “participants” is a revision from the Section 333 exemptions that were made prior to Part 107. According to the old exemption, consenting individuals may include someone who is willing to be near an unmanned aircraft, and that individual may provide verbal or written consent to be involved in the activity. The Section 333 exemptions did require a few safety measures, such as giving a safety briefing to the consenting individuals, informing them of the activities that will happen, and involving them in any mitigating measures.
The Part 107 regulations outright eliminate the provision for consenting individuals by defining participants as only those who are “required for the safe operations of the aircraft”. This obviously includes the remote PIC and the VO. If you have multiple VOs or people who are responsible for maintaining a perimeter for your drone flight, then they can all be considered as participants.
Take note that the definition of participants does not even include the subjects of the activity. Part 107 explicitly states that anyone else NOT necessary for the safety of the drone flight operations is not considered a participant. If you are shooting coverage for a wedding, then the restrictions mean that you cannot even fly overhead the couple or the guests. If you are using a drone for filmmaking, then you are not allowed to fly over the actors or other cast members.
The FAA argues that this rule was put in place as they consider non-participants as not having the same situational awareness of the drone flight operations as people who are directly involved in the activity. This means that they will not be in the proper position and mindset to react and to avoid injury if an accident occurs.
2. Definition of “Over a human being”
Another aspect of this restriction that needs to be expounded on is how to define being “over” a human being. A practical definition of this rule should mean that you are not allowed to fly overhead someone, but the FAA further states that a drone pilot needs to consider the speed and trajectory of a drone if it crashes in the proximity of other people. Following this line of reasoning, a drone pilot should also be discerning of how wind speed and direction will influence the trajectory of a drone as it crashes.
We think this is a reasonable addendum to the resolution, albeit one that is difficult to comply with. Rarely have we experienced drone crashes where the drone drops vertically. However, predicting where the drone will land as it crashes is, at best, an educated guess. The best solution to keep everyone from harm in the event of a drone crash is to have everyone pay due attention to the drone at all times.
3. Flying over moving vehicles
Take note that flying over stationary vehicles is allowed only because the vehicle can be considered a structure that can protect its occupants should a drone crash occur. The resolution outright specified that the vehicle should be stationary, not moving. This restriction was made since a drone accident involving a moving vehicle can result in more severe accidents involving other motor vehicles.
In this restriction, a stationary vehicle is defined as a vehicle that is not being operated. This does not include vehicles that are stopped on a red light, or any vehicle that is not moving but is otherwise in a state of active operation.
4. Can I fly overhead people when flying indoors?
The area inside any building or protected structure is not considered public airspace. This means that the FAA and consequently, the Part 107 rules, have no jurisdiction over flying your drone indoors. Technically, a drone pilot flying indoors cannot possibly violate any of the Part 107 restrictions.
However, it must be noted that flying a drone indoors is an especially dangerous activity. Indoor events are naturally more densely packed with people and they have many walls and ceiling fixtures that a drone can crash into. This increases the chances of an accident. Should your drone crash, it is also more likely to injure someone or damage property.
Our advice? Fly indoors only when absolutely necessary, and only if you are highly skilled. Even though the safety guidelines of Part 107 can no longer restrict you, it is still a good idea to stick to proper safety practices: have a visual observer, fly within line of sight, and do not fly directly overhead people as much as possible.
Why would you need to fly over populated areas?
Having dissected all the restriction of flight over people, the question remains: why would you want to fly over populated areas anyway? The answer lies in the numerous commercial applications of drone flight over populated areas.
A client may ask you to cover a party or a sports event, and the best shots for these events will likely involve having to fly over the crowd. Inspection of construction jobs might involve having to fly over the workers in the construction field, who are still considered non-participating people under the Part 107 restrictions. You might also need to conduct inspections of roadworks or the exterior of a building where you may need to fly over road segments with active traffic.
Debating the merits of the restriction
Many appeals have been made against the restriction of flight over populated areas, citing the fact that there exists no similar restriction for manned aircrafts. However, the FAA has argued that manned aircrafts have to comply to a much higher level of airworthiness standards than unmanned aircrafts. A more rigorous process of manufacturing, maintenance, and pre-flight safety inspections means that manned aircrafts are much more reliable and have very little margins of error.
We find it hard to argue against this assertion by the FAA. From what we have experienced, even sophisticated hexadrones or octodrones can crash despite having allowance for multiple points of failure. Drones do not require any airworthiness certification before they are allowed to fly, and thus have an inherently higher failure rate.
However, it can also be argued that the risks involved in drone flight and the subsequent damage that a drone accident can cause is much less severe than a manned aircraft. In fact, statistics show that there have been very few fatalities caused by the operations of unmanned aircrafts.
The standard of knowledge developed by drone pilots during the certification process, as well as provisions on line-of-sight and visual observers, also serve to reduce the risk level of drone flight. In response to this, the FAA has stated that the restrictions were made to protect primarily against mechanical failure and not pilot error.
Is it possible to request a waiver for this restriction?
Regulation 107.39 on flight over human beings is one of the regulations that the FAA may waiver upon their approval. However, it may be discouraging to find that only 14 such waivers have been granted in more than two years since Part 107 regulations were implemented. Although we are not privy to the figures on the number of waiver requests for 107.39, it can be deduced that a good number of these requests were denied.
To figure out what makes a successful application, we may take a closer look at the details of the waiver that the FAA has granted. The first waiver was granted to the Cable News Network (CNN). It can be noted that this waiver was quite restrictive in its operational limits: they were only allowed to use a drone that weighed no more than 1.37 pounds, it needed to have a tether, and they were only allowed to fly at a maximum speed of 5 miles per hour and a maximum altitude of 21 feet.
CNN applied for the same waiver 2 more times, with each one being less restrictive than the previous. The last waiver, dated October 2017, had an altitude restriction of up to 150 feet. There were no longer any restrictions on the weight of the drone and its maximum operating speed.
What did it take for CNN to have their waiver requests approved? The waiver documents refer to a veritable list of supporting documents that CNN provided along with the waiver request, which included their very own UAS Operations Manual, a Risk Assessment Manual for their particular drone models, and a Concept of Operations Manual specific to their drones.
The most recent waiver granted by the FAA was to Kent Iler for the coverage of a demolition derby event. The waiver document expressly identifies that the drone can only fly over the automobile drivers, and only at a maximum altitude of 200 feet. The waiver also specified the geographical limitations of the waiver as only within the fairgrounds where the event will be held.
What can we glean from the information on the waivers that the FAA has granted? From the low number of granted requests, we can see that the FAA is less lenient on the matter of flight over populated areas compared to flight at nighttime, which constitutes the highest number of approved Part 107 waivers. Even when they grant waivers for 107.39, they impose very strict operational limits, such as the maximum altitude and speed that the pilots may fly their drone.
However, based on the repeat requests of companies such as CNN and Project Wing, the FAA tends to loosen up on the restrictions after a while. The 3rd waiver of CNN finally allowed them to fly over populated areas, something that was explicitly prohibited under the 1st and 2nd waivers.
Almost all of the waivers requested were for organizations, with the recent waiver granted to Kent Iler being the sole exception. This means that it might take a group of several people to come up with the technical and documentation support needed to be granted the waiver. It also implies that it may take some time before the FAA starts granting 107.39 waivers to individuals.
How do I get around the restriction?
Granted that requesting a waiver takes a long time and that the chances of being granted one for an individual is quite low, is there still any way for a small-time drone photographer to work around the restriction? A little bit of creativity and a lot of planning can go a long way towards completing a job despite the legal restrictions involved.
Some photographers have managed to get shots of crowds without having to resort to violating Part 107 restrictions by flying away from the crowd. It can be argued that the best vantage point to get a good shot of a crowd is not flying overhead, but rather panning away. You can also use the zoom function of your camera to get good shots even from a distance. It is even possible for drone photographers to work with event organizers so that a drone may fly over pre-determined paths so that it will not be flying overhead people at any point.
Drone pilots who have to do inspection jobs for construction and other infrastructure oftentimes have to wait for a window where there will be no workers on site. This can be done during breaks or days when there is no work scheduled. In such cases, the job can be completed without concern for flying over people.
Is it possible for the rules to change to allow flight over people?
The FAA has often stated that the Part 107 regulations were made to support drone businesses, rather than to restrict them. They have also committed to periodically review and revise the regulations in the context of evolving technology and business needs. Within this mindset, we are expecting that the Part 107 rules change in the next few years to be more accommodating of flight over people.
One potential workaround is for the FAA to provide a separate set of restrictions for micro UAS, or drones that weigh less than 4.4 pounds. At this weight, they pose very little chance of causing serious harm or damage should they crash. Of course, there is minimal hardware that can be mounted in a drone that weighs only 4.4 pounds, but that is a problem for the drone manufacturers to solve.
Another potential solution is to provide emergency parachute systems for drones that will automatically deploy in a crash. This innovation will serve the same purpose of minimizing the potential harm or damage that a drone may cause if it crashes.
Final thoughts
Public safety should always be in top of mind for every profession, and drone flight is no exception. For this reason, the FAA has restricted drone flight over any person who is not participating in the activity. The sentiment behind the rule is one we understand, and we can fully get behind. However, the concerns of commercial drone pilots that it restricts their potential clientele is also valid.
Drones currently do not have to undergo a standard of air-worthiness, making them susceptible to mechanical failures. Indeed, we have seen even the most sophisticated and high-end drones crash due to forces beyond the control of the pilot. Even with the requirement of passing the Part 107 knowledge test, licensed drone pilots are still also vulnerable to human error.
The FAA has a waiver process in place for flight over people, but the results so far have been discouraging. The FAA has only granted a handful of waivers for flight over people, and almost all of them have ben for organizations. It appears that it will take some time before the FAA relaxes their stance on flight over people – more so for individual pilots.
For the meantime, commercial drone pilots need to find a creative way to do their jobs while complying with restrictions. Taking good photos of crowds without flying over them is possible, as drone pilots have exhibited many times before. With some planning, even inspection and surveillance jobs can be done within the Part 107 restrictions without compromising on quality of output or data collected.
Flight over people is one of the most discussed topics with regards to the Part 107 restrictions. It has been debated numerous times, with both drone pilots and the FAA making valid arguments. Perhaps these arguments can someday result in a set of rules that works for all parties involved – not just the drone pilots and the FAA, but also the clients of drone services and the general public.
Note: This is article is not legal advice. It is for informational purposes only. Consult with an attorney prior to flying your drone.
