With every new technology comes more elaborate methods to advertise goods and services. Recently, Bilibili performed an immaculate demonstration of technological prowess by arranging 1,500 lit-up drones into the shape of a QR code over the Bund that, when scanned, sent the scanner to a video game homepage. That begs the question: can we expect light shows via drones in the U.S.’ airspace and what laws govern? The answer is layered and will vary depending on the city or state. There are some key statutes to note, but if you have more questions after reading this, then you should contact our group. This is by no means an exhaustive list of the applicable laws or rules.

The Federal Aviation Administration (FAA) is the agency responsible for regulating the use of aerial vehicles, including unmanned aircraft systems (UAS) or drones. FAA Regulations Part 107, codified as 14 CFR Part 107, provides operating rules, remote pilot certification procedures, and waivers for recreational, commercial, government, and educational operators. Previously, under Part 107, operators of UAS weighing under 55 pounds (small UAS) could not fly at night, over people, or over moving vehicles unless they had obtained a waiver. On April 21, 2021, the new Operating Over People Rule became effective, permitting operators of small UAS to also be included in the list of waiver-less operators, with some exceptions.

The new Operating Over People Rule breaks small UAS into four categories depending on the level of risk. Category 1 applies to small UAS that weigh 0.55 pounds or less. Categories 2 and 3 provide performance-based eligibility. Category 4 requires that small UAS have airworthiness certificates issued under the FAA Regulations Part 21. All four categories must not contain any exposed rotating parts that could cause lacerations to a human being.

Which of these categories should you be in to perform light shows at night? Well, all of them can, but it depends on the operator. The operator must complete a Remote Pilot knowledge test prior to operating any one of the above small UAS at night. Further, the small UAS must be equipped with operational anti-collision lights that can be seen for 3 miles. Operators must also hold a valid airspace authorization for operations in a controlled airspace under 400 feet.

For operations over moving vehicles, Category 1, 2, and 3 small UAS may operate over moving vehicles only in two scenarios: maintaining sustained flight over moving vehicles in a closed or restricted access site wherein all persons onsite are on notice of the operation; or not maintaining sustained flight over moving vehicles. A Category 4 small UAS may operate over moving vehicles only in accordance with the operating limitations specified in the approved Flight Manual or as otherwise specified by the Administrator.

If the operator will be flying the drone over people, then there are even more restrictions in place for safety reasons. Category 1, 2, and 4 small UAS must have remote identification under the new Remote ID Rule before they can fly over people. A remote id, akin to a “digital license plate” for UAS, helps the government identify the ownership information of a drone for law enforcement purposes. Category 4 small UAS is also subject to maintenance, alterations, and inspections in addition to the remote id requirement. Category 3 small UAS can only fly over people within a closed or restricted access site and all persons onsite must be on notice of the UAS. Additionally, a Category 3 small UAS cannot maintain sustained flight over a person unless that person is part of the operations, under a covered structure, or inside a stationary vehicle for protection.

There is more to Part 107 than what is covered here. For example, there are operations in Part 107 that will nonetheless require a waiver: operation of multiple small UAS (14 CFR § 107.35) and visual line of sight aircraft operation (14 CFR § 107.31). Operators must also consider the local and state rules, if any. For instance, the State of New York prohibits the operation of small UAS over state parks and historic sites without prior written approval. Similarly, the Sacramento County Code prohibits drone usage except in areas that are specifically labeled for drone use or with express permission of the Director. The New York City Administrative Code says it is illegal to take off or land a drone except in an emergency situation, or use a drone for advertising purposes. Not only are there concerns about physical and environmental safety, but there is also concern that government drone usage could endanger a citizen’s constitutional rights. The City of Hermosa Beach prohibits the use of small UAS “to capture, record, or transmit any visual image or audio recording of any person or private real property located in the City” in situations where the subject person has a reasonable expectation of privacy.

All in all, there are many rules that are pertinent to the operation of drones and although operation might be permissible in one area of the country, it could be a misdemeanor in another. Operators should learn the rules before taking their drones out for a spin and at the very least, avoid being reckless and be considerate of the people and objects in their surroundings.

If you have questions about drone use rules and regulations, and how those rules and regulations may affect your media, entertainment and technology ventures, please contact S. Gregory Boyd at (212) 826-5581 or gboyd@fkks.com; Saphya Council at (310) 579-9607 or scouncil@fkks.com, or any other member of the Frankfurt Kurnit Interactive Entertainment Group.