After spending a weekend surrounded by FAA Section 333 exemption holders at the recent New York City Drone Film Festival, a common issue permeating the event was how do exemption holders work within their restrictions to make these films even better than they already are? Even with the exemption, there are stringent conditions imposed by the FAA that limit what exemption holders can do.

For example, the "Best in Show" winner, Afterglow: Lightsuit Segment, was brilliant (check it out here), but it could not have been filmed in the United States because the entire premise – skiing down a mountain in magnificent lightsuits – required it to be filmed at night, an explicit prohibition by the FAA. But what if there was some flexibility with the Section 333 exemption?

Recently, the FAA granted a petition to amend a Section 333 exemption that appears to indicate just that. Cape Productions, Inc. ("Cape"), an aerial cinematographer that uses a drone to film skiers at participating ski resorts, petitioned to amend its Section 333 exemption to relax the requirement of the 500 foot operating distance from people. In granting the amendment, it is not surprising that the FAA's primary concern was safety. With that issue in the forefront, they reviewed Cape's safety record and considered Cape's plans to mitigate risk. Those plans included:

  • Limiting the drone to a maximum speed limit of 50 knots (57.5 MPH).
  • Requiring a consent via waiver for all individuals entering the resort where filming will take place.
  • When consent is not obtained, using physical barriers to prevent unauthorized people from entering the filming area.
  • Obtaining additional consent forms for those individuals who will be filmed.
  • Mapping out key areas such as take-off and landing points, areas of operation, and a fail-safe point in the event that operation must be terminated immediately.
  • Implementing operational safety measures such as pre-programed flight plans and signage.
  • Creating a safety plan that includes an identified control point from which the pilot in command will conduct operations, a process to cease operations if any unauthorized people or items enter the area of operation, and the use of visual arm and auditory signals to communicate.

The FAA accepted those plans with the exception of the general consent waiver for those entering the resort. Instead, the FAA required a specific briefing about the risk to all individuals who will be within 500 feet of the operating drone, as well as their acknowledgment and consent of those risks. Furthermore, the FAA required Cape to develop a standard operations manual to document and address operational safety practices, and to submit a written plan of activities to an FAA Flight Standards District Office to facilitate oversight prior to operating.

The Cape case raises an interesting question about what other restrictions the FAA may be willing to relax for Section 333 exemption holders that will go the extra mile for safety. When applying for their own exemption, drone businesses can cite to Cape's Section 333 exemption as precedent. The key is developing a plan to address whatever concerns the FAA may raise. Have you ever heard the expression "ask and you shall receive?" Well maybe that's the case with the FAA. The problem is not enough people are asking.

Exemption holders may not inquire about relaxing restrictions for several reasons, including: (1) exemption holders do not know that it is even possible to relax the restrictions or (2) they do not want to go through the process, which could be long and expensive, with no guarantee of success. Maybe it would be possible to fly at night in certain circumstances. Maybe it would be possible to carry a payload that makes the drone heavier than 55 lbs. If successful, the competitive benefits that a company can reap may make the endeavor worthwhile.

Those who are willing to try should reach out to experienced counselto discuss your options.

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