Flying Your Drone in Native American Reservation Airspace

Flying in Native American Airspace

Flying in Native American Airspace

A question was raised during my recent vacation to a National Park in Montana: Do Native American Nations have sovereign authority over their airspace? I had intended to fly the Park’s edge region from Tribal lands (which legally complies with the NPS Policy Memorandum 14-05). However, I realized the rules that apply to airspace over tribal lands might be different.

Airspace Sovereignty from the Native American Perspective

A retired chief of police of an Indian reservation (Gila River Indian Community, AZ) advised that tribal governments are very sensitive of their sovereignty and sacred grounds. He recommended that drone pilots contact the tribal government or police department and ask for permission to fly. The tribes appreciate a show of respect by asking. To sweeten the deal, perhaps you as a drone pilot could offer photos and videos that the tribe could use for its own purposes.

Unfortunately, there have been many cases of trespassers desecrating tribal lands and taking sacred artifacts. As a result, tribal governments now employ their own law enforcement officers that patrol their territory on 4×4’s. My understanding is that you do not want to be on the wrong side of a tribal LEO if you meet up with one!

Has Tribal Sovereignty over Airspace been Settled by the Federal Courts?

In my blog “Does an Aerial Drone Pilot have the Right to Fly Over Private Property?” we looked at property owners’ rights to the airspace within their property lines. It would be consistent, then, that Tribal Nations would have the same airspace rights. That is, they own the airspace up to 500 feet above ground level. This policy was affirmed in a 2016 paper by the University of Oklahoma College of Law Digital Commons “Why Indian Tribes Possess the Sovereign Authority to Regulate Tribal Airspace.” However, in this paper, an argument was made that Tribal Nations own ALL of the airspace within their boundaries.

Of course, such an assertion by tribal governments conflicts with federal regulations and FAA jurisdiction. However, the author makes a good point that Native American Nations enjoy significant sovereignty in other areas of the law. Since the airspace jurisdiction question had not been resolved as of 2016, drone pilots should contact tribal authorities and request their permission to fly.

No Fly Zones – Flying Your Drone in Restricted Airspace, Update

FAA Drone Zone

Unlocking an FAA No Fly Zone

For several years, the more expensive aerial drones on the market have been designed with built-in firmware that prevents start-up of the motors if the drone is in an FAA restricted airspace, also known as a no-fly zone (NFZ). These zones are typically found around airports, heliports, prisons, military installations, etc.

Here’s the latest information on No Fly Zones, updating my blogs (Part 1 and Part 2) posted last year.

Identification of No Fly Zones

The easiest way to determine if your intended flying area is in a No Fly Zone, is to check with one of the drone manufacturers’ web sites. For example, DJI posts their NFZ map online at this link. If you haven’t checked the map and you find your drone acting odd, you might be in a NFZ. Odd behavior means it won’t start up or it won’t fly past an invisible barrier.

FAA Permission

If you know your intended flying area is in an NFZ and you need access for a valid reason, there’s a way to get permission. You start with the FAA, which has a new web site portal called the Drone Zone that allows you to ask for airspace authorization.

Enter the information and the FAA will turn around their response in just a few days. Be prepared to offer a good reason for your request. If you’re Part 107 certified, your drone is registered, and you have a valid tasking from a client, then your approval will likely be straightforward.

The FAA will contact the appropriate authority, such as the airport’s Fixed Base Operator, who may come back with restrictions such as flight times, flight days, max altitude, etc. Or, you may be declined. If all goes well, the FAA will issue you a signed form (PDF) authorizing your flight plan.

Drone Manufacturer Unlocking

Submit that form to your drone manufacturer. For example, if your drone was manufactured by DJI, then go to their “Unlock a Zone” portal at this link. Enter the information and the manufacturer will turn around their response in just a few days.

In my experience, the process has been quite fast, with same-day approval from both the FAA and DJI. Once the drone manufacturer has approved your request, they will provide a method to download a firmware patch to your drone. Activate the patch using your drone’s control software. Your permission will typically include a geoposition and date range.

Your Rights to Retrieve a Drone If It Lands On Private Property, Part 2

What If An Irate Property Owner Has Your Drone?

What If An Irate Property Owner Has Your Drone?

Aerial drones are usually reliable, and in the hands of an experienced operator are brought home with sufficient battery power in reserve. However, there may be circumstances when the aircraft can’t be brought home and it lands on someone else’s property. I established in Part 1 that the property owner does not have a lawful claim on your aircraft. In this blog, we review your recovery options in less-than-friendly circumstances.

What Are My Options?

If the property owner refuses to return your aircraft, or allow you to retrieve it, then you should call local law enforcement to intervene. As long as no harm was done, then it’s likely that the property owner will hand over your drone to a law enforcement officer. Although the owner may be reluctant, they may come around after being advised that they face a charge of larceny if they hold onto it. There are several other ways this scenario can play out (such as intentionally destroying your aircraft), but if none turn out favorable to you, then you’ll have to ask for a law enforcement report and proceed with a civil or criminal complaint.

I recently heard of a scenario where a novice was using their drone for low-level spying, which violates state and federal privacy laws. If the property owner gets your drone under these circumstances (using any available means) your claim is going to be an uphill battle.

If your aircraft gets stuck in the owner’s tree or is on their rooftop, then be prepared to pay for a service to come out to retrieve it for you. For example, this may cost you $150 for a tree service to come out, climb the tree, retrieve your drone, and assure the owner that no harm was done to their tree.

Sometimes the best grease is money. If the property owner is annoyed, then you may offer a modest sum for their troubles. Conversely, if the property owner demands a “salvage” fee, then this may be the path of least resistance that gets your aircraft back. Even if the law of ownership is on your side, getting a legal judgment will be costly and take time. In the meantime, you’ll probably have to buy another drone.

There is the unpleasant scenario where your drone damaged property or injured a person (or animal). In such a case, your drone deprived the owner of their full enjoyment of the land and your situation has become a whole lot more complicated. This is why you need a good liability insurance policy.

What if the Property Owner Refuses to Return My Aircraft?

Aerial drones can be expensive, with the value of some in the thousands of dollars. At this price point, a court proceeding may be worth the cost. For less expensive drones, a court proceeding may give you some degree of satisfaction but the cost may exceed the drone’s value. Some property owners are so belligerent that they will destroy your drone. I wish I could be gentler in advising that you may need to be prepared to accept the loss of your drone.

In Any Scenario with Complications, Document Everything and Take Pictures

If your operations require flying over private property, then carry an insurance policy that covers liability AND loss of aircraft. If it goes down, then collect as much information as possible about the circumstances, take pictures, print out your controller’s log files, and take names. When dealing with property owners, always be professional and affirm their rights as well as your own. Even though the law is on your side, the property owner has possession of your drone so carefully assert your rights in the kindest manner possible.

Your Rights to Recover a Drone If It Lands On Private Property, Part 1

Did Your Drone Come Down On Private Property?

Did Your Drone Come Down On Private Property?

Aerial drones are usually reliable, and in the hands of an experienced operator are brought home with sufficient battery power in reserve. However, there may be circumstances when the aircraft can’t be brought home and it lands on private property. Does the private property owner have a lawful claim on your drone? In Part 1, we review your recovery options in relatively cooperative, no-harm circumstances. In Part 2, we’ll review your recovery options in less-than-friendly circumstances.

What Could Possibly Go Wrong?

First, let’s review some of the circumstances that are covered in this blog: (1) unexpected mechanical failure, such as a battery issue, electronic failure, or motor/propeller malfunction; (2) loss of control, such as an automatic return to home at too low of an altitude and it crashes into an object; or (3) forced landing due to an exhausted battery.

Please note there are a number of circumstances not covered in this blog. Primarily, these are activities that might deprive the property owner of the full enjoyment of their land, including evidence of: (1) the drone is causing a nuisance: (2) being flown recklessly; or (3) violating a state privacy law. For whatever reason an aircraft may come down under these circumstances, your rights may be compromised. Please read my blog on flying over private property. In addition, if your aircraft enters controlled airspace and a law enforcement or military activity takes it down, you’ll have an uphill battle getting it back.

Do You Still Own Your Drone?

Case law is well settled that ownership of your property is retained, regardless of where that property may be situated. Conversion of lost property doesn’t occur unless it remains unclaimed by the owner. So, for a property owner to cite conversion (that is to assume ownership), they must post a notice of “found property” or turn it over to law enforcement for a period of time, typically 3 months.

So yes, you have the right to recover your aircraft from a property owner. This doesn’t mean that you can intentionally trespass, especially if the owner is standing there with a shotgun, or there are other obstacles such as dangerous animals. But you do have the right to ask for the return of your property.

How Do You Get Your Drone Back?

If you know where it landed, then you should introduce yourself to the property owner, identify yourself as the drone owner, and ask for its return. The owner may be annoyed, but a reasonable explanation of how it ended up on their property will be helpful. Further, if it has an FAA registration number and other identifying information, then you have established your right of ownership. Don’t forget that your controller also establishes ownership, simply proven by operating the drone; e.g. moving the camera, starting the motors, etc.

Of course, there may be other scenarios where the property owner is less cooperative. These include situations where your aircraft is stuck in their tree, on their roof, or has caused damage. There may also be scenarios where the property owner is just plain uncooperative. We’ll address those in Part 2.

Does a Private Property Owner Have the Right to Shoot Down Your Drone?

Shooting at a Drone is Illegal

Shooting at a Drone is Illegal

Shooting down an aerial drone is a federal crime and could result in criminal liability. Regardless of how a property owner feels about a drone’s (perceived) invasion of privacy over their private property, there are more civil solutions available.

State Privacy Laws Favor Property Owners

We established in our May 2017 blog that case law has favored property owners for altitudes up to 500 feet above their property. So, the wise drone pilot will ensure that they’re flying in accordance with FAA regulations and avoiding any appearance of: (1) the drone is causing a nuisance: (2) being flown recklessly; or (3) violating your state’s privacy laws.

Federal Aviation Laws Favor Drone Pilots

For obvious safety reasons, a drone hit by gunfire could crash, causing injury to persons or damage to property on the ground, or it could collide with other objects in the air. So, shooting at an unmanned aircraft could result in criminal or civil liability, just as firing at a manned airplane. The FAA has cited federal law in their declaration that shooting a drone constitutes a federal crime and could result in criminal liability. Where does it say that?

Federal Law states it in U.S. Code Title 18, Section 32 “Whoever willfully sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States . . . shall be fined under this title or imprisoned not more than twenty years or both.” Under subsection (c), threatening a drone or a drone operator would also be a federal crime subject to five years in prison.

What if My Drone is Shot Down?

Aerial drone pilots who have an FAA registration number affixed to their aircraft, are Part 107 certified, and flying in accordance with FAA rules will probably have a good case for filing a criminal complaint . . . As long as they’re respecting the rights of property owners! However, case law can go against the drone pilot if it can be shown that they were depriving the property owner of their rights, particularly invasion of privacy.

Summary

Drone pilots must be careful about flying over other people’s property, especially at low altitude. State laws control property rights and in at least one case have favored an owner for shooting down a drone that was allegedly used for spying. In light of Amazon’s recent approval to deliver small packages by drones, the gray areas between federal and state rights certainly need to be clarified.

Drone pilots should know their rights but also avoid situations that may place their drone in jeopardy. Getting entangled in the legal system is expensive and should be avoided if at all possible.

Don’t miss our next blog on your right to retrieve a drone that lands/crashes onto private property.

Does an Aerial Drone Pilot have the Right to Fly Over Private Property?

Does This Sign Apply to Aerial Drones?

Does This Sign Apply to Aerial Drones?

There’s an altitude limit at which property owners own their airspace. Above that altitude, it’s owned by the federal government. But regardless of altitude, airborne aircraft are always operating under the jurisdiction of the Federal Aviation Administration.

Federal case law first established property owner’s airspace in 1946 as a minimum altitude of 83 feet in a foundational ruling by the U.S. Supreme Court “United States v. Causby, 328 US 266 (1946).” A navigable airspace boundary was later established by Congress as the minimum altitude for aircraft flights – stated as 500 feet above ground level. Property rights laws generally accept altitudes below the minimum navigable airspace as the airspace owned by private property owners.

To be clear, the FAA has jurisdiction over all airspace above the ground where aircraft can operate. However, the FAA does not own the airspace below those altitudes defined as navigable airspace.

What Do I Need to Know as a Drone Pilot?

One lengthy legal analysis suggests drone pilots have the right to fly their drones at 400 feet above private property. As you know, 400 feet is also the maximum altitude that drones may operate (with certain exceptions). Note: I couldn’t verify their 400-feet altitude spec, but offer this resource since it cites some good historical information. Whether you’re using 400 feet or 500 feet, current case law favors the property owner if a claim of trespass is made against the pilot.

Does this mean that if you’re doing commercial photography you’re at risk if your drone flies over an adjacent property? Maybe. However, proving loss of the owner’s “full enjoyment of their land” would be difficult if there’s no evidence of: (1) the drone is causing a nuisance: (2) being flown recklessly; or (3) violating your state’s privacy law. In our experience when flying our drone on commercial jobs, it’s very difficult to avoid flying over a neighbor’s private property. So when we’re on a job, we always have a copy of the owner’s (or agent’s) tasking and fly safe.

I’ve been approached by curious neighbors asking what I’m doing with my drone and have found that by explaining the tasking and showing them the drone’s video display it creates a lot of good will. First, they can see that the drone’s wide-angle camera makes it a poor platform for spying. Second, they think it’s very cool to learn about this kind of technology.

This is also a good time to hand out a business card. Sometimes curious neighbors may have a good question down the road, such as “Can I hire you to photograph my property?”

What About Public Lands, Such as the National Parks?

We covered this question in our blog posted on December 7, 2017 “Everything You Never Wanted To Know About Flying Your Drone in the National Parks.” The NPS Director’s Policy Memo 14-05 stated that aerial drones may not be operated from park property, but may be flown over park property (within the FAA’s Part 107 rules). Apparently, federally-owned land managers defer matters of airspace to the FAA.

Summary

Private property owners are within their rights to demand that drone pilots keep their drones away from their property lines. This is a request that responsible drone pilots should respect. Unless a lawful objection has been raised, whenever flying over private property always fly in a safe and professional manner. This will minimize your risk of an unpleasant confrontation and possible legal action.

This Crosswind is Driving My Drone Crazy

Heading Offset Due To Crosswind

Heading Offset Due To Crosswind

As mentioned in my 10/25/2018 blog, “Flying in High Winds – What Could Possibly Go Wrong?,” wind can affect your drone’s flight control system. In severe situations, its effects are immediately apparent on your screen, such as an image that bounces around. However, there’s another more subtle effect that can impact the quality of your videography, which you should know about.

Review of Your Drone’s Flight Control System

First, let’s review what keeps your drone stable while in flight. Today’s sophisticated drones use a magnetic compass and the global positioning system (GPS) to determine the drone’s heading and position. The drone’s inertial navigation system is always comparing its solution with that of GPS to hold the drone in position and to keep the camera steady. So, even if the wind is buffeting your drone, its control system is doing a pretty good job of holding the camera steady.

However, if the wind is high enough and the gusts strong enough, the drone’s flight control system can be driven into its non-linear region. This appears as bouncing around in the video feed to your screen and recorded images if you’re shooting video. Your only solution is to wait until the wind settles down and try again.

Wind Can Affect Your Videography in Other Ways

While flying your drone manually, you’ll probably never notice the effect of a crosswind. However, in programmed flights, such as DJI’s waypoint mode, you may notice a yawing (heading) offset while the drone is flying from point A to point B. This offset is known as “crabbing.”

Crabbing is where the yaw axis of the camera offsets from the drone’s direction of travel. Stated another way, while your drone’s course toward Point B may be on a direct heading, it offsets in yaw to another angle, typically turning into the wind.

In light winds, the crabbing effect is minor, but as the crosswind speed picks up it becomes more pronounced. Its effect on your video? You’ll notice your drone’s video image offset a few degrees from the straight-ahead direction.

What Causes Crabbing?

Your drone does a pretty good job of maintaining its heading and position along the desired track over ground. However, it still has to adjust heading to compensate for wind and stay on the objective track. When your drone adjusts the heading, its camera crabs over to an offset angle. This is simply vector math and is commonly encountered in aviation scenarios (as well as for boats in crosscurrents, etc.). Think of an airplane landing in a crosswind – notice how its angle relative to the runway is offset? That’s crabbing.

What Can I Do With This Information?

With awareness of crabbing, you can look for its effect on your videography. If it becomes objectionable then you can increase your drone’s speed (again, vector math), wait for a calmer day, or crop out some of the offset in postprocessing.

Zoom-in With a Fixed Lens Camera

Zooming In With Your Drone's Fixed Camera Lens

Zoom-in With Your Drone’s Fixed Camera Lens

At one time or another, everyone has had situations where zooming in on a video clip adds that finishing touch. Whether it’s for effect or for greater stand-off distance, the convenience of camera zoom takes your photography to the professional level.

In this blog, I’ll show you how to get Full High Definition (1080p) results at a zoom factor of 1.4x using a fixed-lens camera. This is good information for venues like sporting events and weddings, which can be recorded from the air but at a great enough distance so the drone’s presence has minimal notice. For more information on camera resolution please read my blog Setting Up Your Aerial Drone Camera.

Do I Need an Expensive High-End Drone and Camera?

Although that would be one way to get zoom capability, it can be a very expensive investment. But, let’s look at just one of many high-end drone/camera solutions:

For a modest investment of $5,000 you can purchase a DJI Inspire 2 drone, Zenmuse X5S camera, and Lumix 14-42mm zoom lens and the results will be quite professional. The Lumix lens gives you the standard camera focal length equivalent of 28-84mm. So, with 50mm as the standard for zero magnification, this camera has a zoom range of 0.6x wide angle to 1.7x telephoto. Remember these numbers.

Is There a Less Expensive Alternative?

There’s another solution that is far less expensive and provides excellent results. Many drones on the market can record Cinema 4K video, which has a resolution of 4096×2160 pixels. However, most users are satisfied with a Full HD resolution of 1920×1080 pixels.

What these numbers mean is that to get a digital zoom capability, you can record video in Cinema 4K mode, which leaves plenty of resolution to render any portion of the frame in Full HD. Rendering the video is done in post-processing, where video clips are transformed into the finished video.

For example, we can use our drone to record the desired scene in C4K mode. We start with the equivalent wide angle focal length of the camera’s lens, which is 35mm (0.7x). Using post-processing software, as much or as little of the C4K image can be cropped for the desired magnification. So, when your video is captured in C4K, you can select a crop “window” of up to 50% and render your new “zoomed-in” video in beautiful FHD. In other words, you get a full-definition 1920×1080 pixels! For this level of cropping, you achieve a zoom factor of 1.4x, equivalent to a 70mm telephoto lens.

Compared with the $5,000 solution, which zooms 0.6x to 1.7x, this digital zoom technique gets you 0.7x to 1.4x.

Any More Slick Ideas?

Two for sure . . .

  1. If you want even more zoom, just crop to get the desired magnification. There’s no limit to how much you can crop, though you will start to see the results of lower resolution. For example, you can crop at 25%, which gives you a zoom factor of 2.8x (140mm telephoto) but the resulting FHD video will display a lower resolution of 1024×540 pixels.
  2. Any method of zoom will increase the image’s sensitivity to camera movement. So a small and acceptable level of vibration at 0.7x may be objectionable at 1.4x. Unwanted vibration can be minimized in post-processing using image stabilization. For more information please read my blog Video Production and Post-Processing.

At FAD-Photo, we use the DJI Phantom 4 Professional V2, which provides a highly stable platform capable of stunning high definition photographs and videos. We have mastered the art of taking C4K videos and using our post-processing software to minimize vibration and render FHD videos.

We deliver the results you would expect from a professional aerial drone photography service! For more information, please refer to our Aerial Drone Photography and Video Services page.

Flying in High Winds – What Could Possibly Go Wrong?

Propeller Spin-off

Wind Gusts Caused This Problem

In this blog, we explain why we limit our flights to wind speeds of 10 mph or less. Seem drastic? Please read on; this is good information.

Drone electronics are quite sophisticated, as they use inertial navigation to stabilize the drone’s camera so it’s almost free from the effects of wind patterns. However, there’s a design limit at which the stabilization reaches the “stops” and no longer holds the camera level.

When the drone is buffeted by gusty winds, the magnitude and direction of the wind can shift quite suddenly. This gives the drone’s stabilization system a workout and sometimes the requirements go beyond the linear operating range. The result is a momentary tilting of the image sent to your remote control. Even with non-gusty winds, the drone’s camera may yaw left or right as the drone’s control system compensates for the wind.

OK, Crooked Photos And Videos; Is That It?

Not really – something much worse can happen when the drone is buffeted by strong gusts: Such as the sudden loss of your drone! The drone’s stabilization system works very hard to keep the camera steady, but when the wind vector tries to tilt the drone, the motors will adjust speed AND DIRECTION, as necessary, to maintain level. If the wind vector is strong enough, one or more motors can momentarily be driven in reverse.

If your propellers screw on, such as the Phantom 3 series, they rotate in a direction that is usually self-tightening. However, if the motor momentarily reverses in a gusty situation then the propeller can actually unscrew and spin-off. The best way to safeguard against a spin-off is to screw the propellers on very tightly. If you’re flying a DJI drone, this means using the supplied wrench.

If your drone uses the new quick release propellers, they can still spin-off, but you’re at a lower risk. Take the Phantom 4, Inspire 2, and Mavic series for example. Their propellers mount with a push and 1/8 of a turn. You (we all) feel safe because there’s a relatively strong spring to hold the propeller in place. However, these drones’ control systems can still drive the motors in reverse. When thrust is reversed and the propeller pushes hard enough against the spring then it will fly-off.

Having some speed on the drone reduces the forces that can drive the motors in reverse. But the pilot should be very careful about low speeds and hovering because these are the conditions that make it more likely that a gust will try to pitch the drone over.

Of course, the best way to safeguard against a spin-off is to avoid flying in high winds. The graphic above was taken from telemetry received from an actual spin-off event.

Why Can’t The Drone Fly With One Propeller Missing?

If a propeller spins off your aerial drone this is what you can expect:

A drone with six or more propellers can survive a one-propeller spin-off. But drones with four propellers are doomed. These drones have two props that rotate clockwise and two that rotate counterclockwise. They were designed this way to cancel the drone’s tendency to rotate. But if you remove one propeller, the drone will go into a spin.

Without a propeller there’s no lift so that corner drops down. So in addition to spin, the drone goes into an uncontrolled roll/pitch. The drone is hopelessly out of control and falls to the earth.

Recommendations

Inspect the propellers before every flight. If you must fly in winds greater than 10 mph, understand that gusts can easily double the wind speed. Take precautions that the propellers are screwed on tightly with a wrench. If you see the image tilting on your remote control, land your drone immediately. Better to fly another day than to take chances on a windy day.

Flying Aerial Drones At Night Is NOT Permitted By The FAA

Flying Your Aerial Drone At Night Is Not Permitted (Without Waiver) By The FAA

Flying Your Aerial Drone At Night Is Not Permitted (Without Waiver) By The FAA

Your drone lights up like a Christmas tree at night, but does that mean you can legally fly your aerial drone at night? Some drone pilots think yes, but I haven’t found justification for night flying in the USA without an FAA waiver.

This is another of my blogs where the FAA’s rules are straightforward. You can avoid a lot of boring reading if you will just take my word to fly your aerial drone in daylight conditions unless you receive a waiver from the FAA.

Let’s find out what the FAA has to say about night flying:

The Federal Aviation Administration (FAA) rules are found in the Code of Federal Regulations (CFR) which are federal laws. Those that apply to this topic include:

Title 14 CFR 107.29  Small UAS Daylight Operation.

(a) No person may operate a small unmanned aircraft system during night.

(b) No person may operate a small unmanned aircraft system during periods of civil twilight unless the small unmanned aircraft has lighted anti-collision lighting visible for at least 3 statute miles . . .

(1) Except for Alaska, a period of time that begins 30 minutes before official sunrise and ends at official sunrise.

(2) Except for Alaska, a period of time that begins at official sunset and ends 30 minutes after official sunset.

Reading this excerpt from the rules, the FAA is clear that Aerial Drones shall not be flown at night. However, flying during periods of civil twilight is permitted as long as collision-avoidance lighting requirements are met. Of note, the LED lights on your DJI drone are nowhere near the intensity to qualify for twilight flying; see line (b) above.

The FAA may issue a WAIVER for night flying

Pilots who wish to fly at night may request a certificate of waiver from the FAA’s Administrator. The waiver request must contain a complete description of the proposed operation and justification that establishes that the operation can safely be conducted under the terms of a certificate of waiver.

14 CFR 107.200  Waiver Policy and Requirements:

(a) The Administrator may issue a certificate of waiver authorizing a deviation from any regulation specified in §107.205 if the Administrator finds that a proposed small UAS operation can safely be conducted under the terms of that certificate of waiver.

Of note 14 CFR 107.205 specifically includes flying at night. Your waiver application is submitted to the office of the FAA’s Administrator in Washington, DC.

Can I Fly at Night Under the Model Aircraft Rules of Part 101?

There are some remote pilots that have stated the requirements for 14 CFR 101.41 will allow them to operate at night. In my view, this is a stretch of interpretation for most pilots.

The chapter that covers UAS’s, Part 107, specifically excludes aircraft that are qualified to fly under Part 101. In other words, you can’t use Part 101 rules to justify flying Part 107 aircraft.

Why? Part 101 addresses Moored Balloons, Kites, Amateur Rockets, Unmanned Free Balloons, and Certain Model Aircraft (emphasis mine).  Subparagraph 101.41 addresses the Special Rule for Model Aircraft, which some pilots have stated online justify flying their aerial drones at night.

First, there are several requirements that must be met if your aerial drone is to be considered a model aircraft:

  • You may fly for hobby or recreation ONLY
  • You must register your model aircraft
  • You must fly within visual line-of-sight
  • You must follow community-based safety guidelines and fly within the programming of a nationwide community-based organization

That’s it. Night flying is not explicitly permitted in the subpart for “Certain Model Aircraft”.

Remote Pilots that are flying commercial off-the-shelf aerial drones, such as those manufactured by DJI, will have a hard time convincing the FAA that you qualify under Part 101 rules.  Even if your drone was to qualify under Part 101, the relevant subparts that allow night flying don’t apply to model aircraft. They apply to other aircraft categories, for example:

14 CFR 101.17

No person may operate a moored balloon or kite, between sunset and sunrise unless the balloon or kite, and its mooring lines, are lighted so as to give a visual warning equal to that required for obstructions to air navigation in the FAA publication “Obstruction Marking and Lighting”.

14 CFR 101.25

When operating Class 2-High Power Rockets or Class 3-Advanced High Power Rockets, you must comply with the General Operating Limitations of §101.23. In addition, you must not operate Class 2-High Power Rockets or Class 3-Advanced High Power Rockets . . .

(d) Between sunset and sunrise without prior authorization from the FAA . . .

14 CFR 101.35

No person may operate an unmanned free balloon unless . . .

(b) No person may operate an unmanned free balloon below 60,000 feet standard pressure altitude between sunset and sunrise . . .

None of these sections (17, 25, and 35) should be used to justify flying aerial drones at night.

Conclusion

The FAA is very clear in Part 107 that flying aerial drones at night is not permitted unless the pilot has received a waiver. Using Part 101 is not a good interpretation of the meaning and intent of the FAA’s rules. However, there are those venues where flying at night is permitted and waiverable. Some that come to mind include certain sporting events, law enforcement, and fire and rescue.

Another resource that I’ve cited before is Drone Law Attorney “Rupprecht Law.”

Please read their legal opinion on How to Fly Your Drone at Night.