Need to Fly Drones Over People, Legally?

A Brief on Understanding Drone Operations Overflight of People  

Overflight of People Waivers have been traditionally one of the most challenging Part 107 waivers to obtain from the FAA, but now they are finally within reach of enterprise drone programs. The FAA scrutinizes 107.39 Operations Over People Waiver applications to a much greater degree than most other waivers due to the increased potential for risk when flying drones over people. The waiver process includes elements strongly reminiscent of manned aircraft operations, including regulated equipment airworthiness, prohibitions on user maintenance, strict risk management procedures, and a robust training program. Many waiver applications exceed 200 pages of technical documentation describing all of the components of safe operations over people. Until now, this has been a herculean task for anyone but a select few organizations with the expertise, funding, and connections to get approved. 

So why would your organization need a waiver for overflight of people? 

There is a pervasive myth in the drone community that “direct participants”  who are legally the only people you may fly over without a waiver, can be anyone with even the most tangential relationship to the operation of the drone. I have seen this line of logic invoked in countless instances including the actors on a movie set, construction contractors on a job site, and public safety personnel on an incident scene. I have even seen the logic stretched as far as spectators at public events where drones are flown. Here is the problem: NONE of those are considered  “directly participating” by the FAA, or perhaps just as importantly, your insurance provider in the event of an accident. 

Title 14, United States Code of Federal Regulations (14CFR) § 107.39 Operation over human beings.

“No person may operate a small unmanned aircraft over a human being unless that human being is:

(a) Directly participating in the operation of the small unmanned aircraft; or

(b) Located under a covered structure or inside a stationary vehicle that can provide reasonable protection from a falling small unmanned aircraft.”

107.39 is notoriously ambiguous on this front, but the FAA clarifies in Advisory Circular 107-2 that a “direct participant” is anyone necessary for the safe operation of the UAS. This typically means members of the flight crew but could include others such as those maintaining a perimeter on the operating area. To put an even finer point on who is or is not participating, try this thought experiment. Think of an individual you want to fly over and ask yourself: If this person wasn’t here, could the drone still be flown safely? If the answer is “Yes” they are not a participant and cannot be flown over without a waiver. 

So it sounds like I need a 107.39 waiver. How do I get one? 

If you’re in the construction, infrastructure inspections, property management, or events business, you probably need a 107.39 waiver for at least some of your operations. Most of these applications will require either the overflight of non-participating persons such as construction contractors on a job site or will require performing the flights outside of normal business hours. To get a 107.39 waiver approved you will need the right equipment, procedures, training, and the right records created and maintained. You will also likely need to respond to the FAA’s questions and negotiate with them to make sure your application does not get unreasonably delayed or come back with restrictions that make it unusable.

There is no way to sugarcoat this. Getting approved for and complying with a 107.39 waiver is hard work, but it’s within reach. While it is possible to go it alone, most organizations want an expert consultant with a proven track record to guide them through the process. DroneUp works with the FAA on your behalf to ensure your waiver is approved in a timely manner, and without unnecessary restrictions. Once you’re approved, the FAA will require continuing effort to comply with your overflight of people waiver. Is your organization ready to fly over people . . . legally?

Brendan Stewart | Training Director | brendan.stewart@droneup.com