Operations Of Unmanned Aircraft Systems Beyond Visual Line Of Sight

On August 7, 2025, the Federal Aviation Administration (FAA) and the Transportation Security Administration (TSA) published a NPRM titled “Normalizing Unmanned Aircraft Systems Beyond Visual Line of Sight Operations” in the Federal Register (90 FR 38212; FAA Notice No. 25-07). Among other changes, this NPRM proposes to add a new section to the Code of Federal Regulations, 14 CFR Part 108, entitled “Operations Of Unmanned Aircraft Systems Beyond Visual Line Of Sight”. In that NPRM, FAA and TSA proposed performance-based regulations to enable the design and operation of unmanned aircraft systems (UAS, otherwise referred to as "drones") at low altitudes beyond visual line of sight (BVLOS) and for third-party services, including UAS Traffic Management, that support these operations. Congress directed the rapid development of this proposed rule in the FAA Reauthorization Act of 2024 knowing that it is needed to support the integration of UAS into the national airspace system.

The comment period for the NPRM closed at the end of October 6, 2025.  Comments are publicly available and may be reviewed here.  To date, 1,025,010 comments have been received.The FAA has not yet promulgated the Part 108 final rules. 

The FAA’s BVLOS Fact Sheet categorizes the proposed rule into several categories, summarized as follows:

1.       Operations

·         The types of operations that would be enabled pursuant to Part 108 BVLOS rules: package delivery, agriculture, aerial

surveying, civic interest – including public safety, recreation, and flight testing.

·         Operations would occur at or below 400 feet above ground level, from pre-designated and

access-controlled locations.

·         All operators would need FAA approval for the area where they intend to fly.

2.       Safe Separation

·         Operators would utilize entities called Automated Data Service Providers (ADSPs) to

support scalable BVLOS operations. ADSPs could provide services to keep BVLOS drones

safely separated from each other and manned aircraft.

·         Drones also would have technologies that enable them to automatically detect and avoid other

cooperating aircraft.

·         Drones would yield to all manned aircraft broadcasting their position using ADS-B.

·         Drones could not interfere with operations and traffic patterns at airports, heliports, seaplane bases, space launch and reentry sites or facilities where electric Vertical Takeoff and Landing (eVTOL) aircraft take off or land.

3.       Aircraft

·         Aircraft would not require traditional FAA airworthiness certificates. Rather, this rule

would establish a process for accepting the airworthiness of an aircraft based on industry

consensus standards, intended to  create a streamlined approval process.

·         The rule would require drones operated under Part 108 to have lighting and to broadcast Remote ID.

4.       Security

The rule would require operators to address and manage security risks including:

·         Developing and implementing both physical security policies and cybersecurity policies to protect facilities and networks from unauthorized access.  These policies would ensure integrity, accuracy, and reliability of operations.

·         Requiring drone manufacturers to protect aircraft from intentional electronic interference.

·         The Transportation Security Administration (TSA) would require certain personnel to obtain up to a level 3 security threat assessment as well as implementing other security programs from TSA.

5.       Operational Authorizations

The FAA is proposing two types of authorizations for BVLOS operations, depending on the scope.

·         Permits: Lower-risk operations that have limited fleet size, weight, and operational scope would

require an FAA permit. The FAA could issue these promptly. Types of permitted operations include

package delivery, agricultural, aerial surveying, civic interest, unmanned aircraft operations

training, flight testing, demonstrations, and recreational operations.

·         Certificates: Higher-risk operations due to aircraft size, weight, speed, or fleet size would

require an operating certificate. The FAA would conduct thorough reviews of the proposed

operations before issuing a certificate.

6.       Operational Responsibility for Certified Operators

The FAA proposes to require two positions: operations supervisor and flight coordinator.

·         The operations supervisor would be responsible for overall safety and security. This would

include ensuring operations meet all regulatory requirements and operating limitations that apply

to the aircraft, and ensuring all personnel are properly trained and knowledgeable.

·         Flight coordinators would directly oversee aircraft operations and intervene to ensure safe

conditions, if necessary.

·         Neither position would require holding an FAA-issued airman or remote pilot certificate.

7.       Operations Over People

The new rule would allow operations over people but not over large, open-air gatherings such as

concerts, sporting events or crowded parks.

·         The FAA proposes five categories of operations over people based on population density. The restrictions, technological, and operational mitigations would increase with the

population density.

8.       Reporting

Operators would report specific information to the FAA including (but not limited to):

·         Flight data including the total number of flight hours for each drone, and make, model and

registration number.

·         Unplanned or precautionary landings, loss of control or communication, and malfunctions that lead to flights into unauthorized areas.

·         Security breaches that result in loss of control of the drone.

·         Any operation that results in more than $500 in damage to property.

9.       Record Keeping

Operators would maintain records of:

·         Each flight including its date, time, and duration; the aircraft registration number;

the purpose of the operation; the flight path including destination, origin, and altitudes;

the name of the designated operations personnel assigned to each flight; and

landing locations

·         Any mechanical issues

·         Maintenance and alteration inspections

·         Personnel training

·         Operations manual

Manufacturers would maintain records of:

·         Compliance information and testing data

·         Configuration control documentation

·         Continued operational safety data

  

Copyright R.E. Kelly Esq. 2015-2026

AMDG

Empathy Is Not A Sin 

 

Promoting Technological Solutions to Combat Contraband Wireless Device Use in Correctional Facilities

On November 26, 2025, the Federal Communications Commission (“FCC”) in Washington, D.C., published a Further Notice of Proposed Rulemaking (“FNPRM”) entitled “Promoting Technological Solutions to Combat Contraband Wireless Device Use in Correctional Facilities” in the Federal Register (90 FR 54248; GN Docket No. 13-111).  The FCC in this FNPRM is proposing rules that would enhance public safety by removing regulatory barriers to allow existing and developing technologies to combat contraband wireless device use in correctional facilities. In furtherance of this goal, the FCC in this FNPRM seeks comment on a proposed framework to authorize, for the first time, non-federal operation of radio frequency (RF) jamming solutions in correctional facilities, expanding the scope of technical options available to corrections officials facing this threat. The impetus for this FNPRM is the fact that the use of contraband cell phones in correctional facilities has reached epidemic and dangerous proportions. See News Release, Grassley Opens Hearing on Counter-Drone Authorities (May 20, 2025), https://www.grassley.senate.gov/news/remarks/grassley-opens-hearing-on-counter-drone-authorities (organized crime groups bombard prisons with contraband like dangerous weapons, drugs, cell phones and tools to aid escape).

This epidemic is directly related to the use of drones to deliver contraband to inmates in correctional facilities. See, e.g., Office of Justice Programs, United States Department of Justice, Addressing Contraband in Prisons and Jails as the Threat of Drone Deliveries Grows (June 2, 2023), https://nij.ojp.gov/topics/articles/addressing-contraband-prisons-and-jails-threat-drone-deliveries-grows.

The FNPRM established the deadline for submitting comments on or before  December 26, 2025. Approximately 80 comments have been submitted by interested parties through the FCC’s comment portal (ECFS) to date.  Reply comments are due on or before January 12, 2026. 

RESTORING AMERICAN AIRSPACE SOVEREIGNTY - EXECUTIVE ORDER ISSUED JUNE 6, 2025 - HIGHLIGHTS, PART THREE

The Restoring American Airspace Sovereignty Executive Order was issued by President Trump on June 6, 2025. See here. The purpose of the Executive Order (EO) was to address the perceived threat offered by Uncrewed Aircraft Systems (“UAS” or “drones”) to potentially endanger public safety through unauthorized drone flights and to ensure American sovereignty over its skies and that its airspace remains safe and secure.

The following is Part Three of a summary of provisions of particular interest with respect to drone law in the EO.

Section 7 of the EO, entitled “Detection, Tracking, and Identification of Drones and Drone Signals”, provides that:

(a)  To the extent permitted by law and consistent with the Fourth Amendment, executive departments and agencies shall use all available existing authorities to employ equipment to detect, track, and identify drones and drone signals.

(b)  Within 30 days of the date of this order, the Attorney General, the Secretary of Transportation, the Secretary of Homeland Security, and the Chairman of the Federal Communications Commission shall revise the August 2020 “Advisory on the Application of Federal Laws to the Acquisition and Use of Technology to Detect and Mitigate Unmanned Aircraft Systems” to reflect relevant developments in Federal law and regulations addressing drones.

(c)  Within 60 days of the date of this order, the Administrator of the FAA shall provide, to the extent permitted by law, including the Privacy Act of 1974 (5 U.S.C. 552a), automated real-time access to personal identifying information associated with UAS remote identification signals to appropriate executive departments and agencies and SLTT agencies for the purposes of enforcing applicable Federal or State law, with appropriate national security and privacy safeguards.

The revision of the above-referenced Advisory to allow executive departments and agencies to use all available existing authorities to employ equipment to detect, track, and identify drones and drone signals, as well as to reflect relevant developments in Federal law and regulations addressing drones,  is necessary for several important reasons.

Background.

On August 17, 2020, The Federal Aviation Administration (FAA), Department of Justice (DOJ), Federal Communications Commission (FCC), and Department of Homeland Security (DHS) issued an advisory guidance document (“August 2020 Advisory”) to assist non-federal public and private entities to better understand the federal laws and regulations that may apply to the use of technical tools, systems, and capabilities to detect and mitigate Unmanned Aircraft Systems (UAS).

The August 2020 Advisory indicates that it is intended to provide an overview of various provisions of the U.S. criminal code enforced by DOJ, as well as federal laws and regulations related to aviation safety and efficiency, transportation and airport security, and the radiofrequency spectrum administered respectively by the FAA, DHS, and FCC. 

Detection Capabilities

The August 2020 Advisory breaks the detection capabilities into two categories, since each category presents a unique set of difficulties from a legal perspective:

1.  Systems that detect, monitor, or track UAS often rely on radio-frequency (RF), radar, electro-optical (EO), infrared (IR), or acoustic capabilities, or a combination thereof. These capabilities detect the physical presence of UAS or signals sent to or from the UAS.

2. Detection systems that emit electromagnetic waves or pulses of sound or light that are reflected off an object and back to the detection system—such as radar, EO/IR, and acoustic systems—are less likely to pose concerns under federal criminal surveillance statutes. Such technology senses the sound or electromagnetic waves produced by or reflected from the UAS and does not capture, record, decode, or intercept electronic communications.

The August 2020 Advisory advises caution for the UAS detection systems that detect the physical presence of UAS by intercepting signals sent to or from the UAS.  Specifically, the August 2020 Advisory indicates that systems using RF capabilities to detect and track UAS by monitoring the communications passed between a UAS and its ground control station may implicate two federal statutes, the Pen/Trap Statute and Wiretap Act.

The August 2020 Advisory notes that the Pen/Trap Statute, 18 U.S.C. §§ 3121-3127, criminalizes the “use” or “installation” of a “device” or “process” that “records,” “decodes,” or “captures” non-content dialing, routing, addressing, or signaling (“DRAS”) information. DRAS information is non-content information used to transmit or process communications; depending on the system, this could include device serial numbers, cell site information, media access control (MAC) addresses, the international mobile equipment identity (IMEI), or the international mobile subscriber identity (IMSI). Use or installation of a pen register or trap and trace device is prohibited, unless conducted pursuant to a court order or when a statutory exception applies. With respect to the Pen/Trap Statute, the exceptions state that they are limited only to providers of wire or electronic communication services. While the term “non-content” is not defined, content is defined as “any information concerning the substance, purport, or meaning of that communication.” 18 U.S.C. § 2510(8). Importantly, machine-to-machine communications and data transfers between devices can be considered “content.

The Wiretap Act (also known as Title III), 18 U.S.C. §§ 2510 et seq., prohibits, among other things, “intentionally intercept[ing]” the content of “any . . . electronic communication[,]” unless it is conducted pursuant to a court order or a statutory exception applies. An “electronic communication” is defined, with certain exceptions, as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.” Id. § 2510(12).

Problems Raised by the Pen/Trap Statute and the Wiretap Act

The proscriptions created by the Pen/Trap Statute and the Wiretap Act described above are problematic for counter-UAS solutions because they act as barriers to what might be the simplest method of drone detection and mitigation of the rogue UAS.  

Background: Mitigation

As the term is used with reference to UAS, “mitigation” means preventing the operation of  the rogue UAS.  The August 2020 Advisory provides that:

Mitigation capabilities fall into two general categories: non-kinetic and kinetic. Non-kinetic solutions use non-physical measures to disrupt or disable UAS, including RF, WiFi, or Global Positioning System (GPS) jamming; spoofing; hacking techniques; and non-destructive directed energy weapons. Kinetic solutions may employ a variety of measures capable of physically disrupting or disabling a UAS, including nets, projectiles, and lasers. The use of non-kinetic or kinetic solutions may implicate federal criminal prohibitions against, among other things, intercepting and interfering with communications, damaging a “protected computer,” and damaging an “aircraft.” … Jamming technologies are designed to block or interfere with authorized radio communications. Examples of jamming include transmitting RF signals from a jammer at a higher “signal strength” than the RF signals being used to navigate or control the aircraft; preventing a cellular, WiFi, or Bluetooth-enabled device from connecting to a network (such as a cellular system or the Internet); or preventing a GPS unit from receiving positioning signals from a satellite. Spoofing technologies can replicate and replace or modify signals, and can lead to loss of control over the UAS’s navigation and communications link (e.g., its link to its ground controller). Hacking techniques generally focus on the UAS’s communications link and/or the onboard computer processors… Jamming, spoofing, and hacking technologies should be evaluated under the federal criminal statutes below (including the aircraft sabotage and aircraft piracy provisions), in addition to the laws discussed above with regard to detection.

So, the Pen/Trap Statute and the Wiretap Act as currently interpreted bar the interception of the controlling signal from the pilot in command on the ground to the drone in flight. Applying the law of unintended consequences to statutes designed to intercept analog telephone calls, it would seem that the literal application of the Pen/Trap Statute and the Wiretap Act contained in the August 2020 Advisory to the interception of wireless communications between potentially dangerous drones and their pilots is misguided. Hence, the EO’s call for the Pen/Trap Statute and the Wiretap Act to be revised “to reflect relevant developments in Federal law and regulations addressing drones” carries merit.

RESTORING AMERICAN AIRSPACE SOVEREIGNTY - EXECUTIVE ORDER ISSUED JUNE 6, 2025 - HIGHLIGHTS, PART TWO

The Restoring American Airspace Sovereignty Executive Order was issued by President Trump on June 6, 2025. See here. The purpose of the Executive Order (EO) was to address the perceived threat offered by Uncrewed Aircraft Systems (“UAS” or “drones”) to potentially endanger public safety through unauthorized drone flights and to ensure American sovereignty over its skies and that its airspace remains safe and secure.

The following is Part Two of a summary of provisions of particular interest with respect to drone law in the EO.

Section 3 of the EO, entitled “Policy”, provides that:

It is the policy of the United States to ensure control over our national airspace and to protect the public, critical infrastructure, mass gathering events, and military and sensitive government installations and operations from threats posed by the careless or unlawful use of UAS.   It is the policy of the United States to ensure control over our national airspace and to protect the public, critical infrastructure, mass gathering events, and military and sensitive government installations and operations from threats posed by the careless or unlawful use of UAS.

One measure of the need to protect the public is evidenced by the FAA data concerning drone incursions of the airspace near airports. The FAA website, Drone Sightings Near Airports, at https://www.faa.gov/uas/resources/public_records/uas_sightings_report, has tracked drone sightings near airports since October, 2019. Since that time, the FAA has documented thousands of drone sightings near airports.  The FAA reports 1,028 drone sightings near airports in the first half of 2025 alone.

The EO also addresses the protection of critical infrastructures. The EO states that “…the term “critical infrastructure” has the meaning given in 42 U.S.C. 5195c(e), and includes systems and assets in all of the designated critical infrastructure sectors identified in National Security Memorandum 22 of April 30, 2024 (Critical Infrastructure Security and Resilience) (NSM-22)…” (NSM-22 is found at https://www.cisa.gov/national-security-memorandum-critical-infrastructure-security-and-resilience).

To facilitate the protection of critical infrastructures, Section 5 of the EO requires the FAA to establish Airspace Regulations to Protect the Public.  Section 5 provides:

The Administrator of the Federal Aviation Administration (FAA) shall:

(a)  with respect to the rulemaking required by section 2209(f) of the FAA Extension, Safety, and Security Act of 2016, as amended:

(i)   promptly submit a notice of proposed rulemaking (NPRM) to the Office of Management and Budget (OMB) and the Task Force establishing the statutorily required process for restricting drone flights over fixed site facilities, and interpreting, to the extent appropriate, critical infrastructure consistent with the definition of that term in this order; and

(ii)  promulgate a final rule as soon as practicable after publication of the NPRM;

Section 2209 has a long history, as one might surmise from the reference above to the federal legislation enacted in 2016.

Background Of Section 2209

On July 15, 2016, Congress enacted Public Law 114-190, entitled the FAA Extension, Safety and Security Act of 2016 (FESSA). The legislation included Section 2209, entitled “Applications for Designation”, which directed the Secretary of Transportation to “establish a process to allow applicants to petition the Administrator of the Federal Aviation Administration (FAA) to prohibit or restrict the operation of an unmanned aircraft in close proximity to a fixed site facility.” Within Section 2209, Congress directed that an eligible facility must be a fixed site facility within one or more defined industry sectors: “critical infrastructure, such as energy production, transmission, and distribution facilities and equipment;  ; amusement parks; [and] other locations that warrant such restrictions.”

On October 5, 2018, Congress enacted Public Law 115–254, also known as the FAA Reauthorization Act of 2018 (FAARA 2018). FAARA 2018 amended part A of subtitle VII of title 49, United States Code by inserting a new chapter 448, entitled Unmanned Aircraft Systems, which incorporated additional authorities and mandated the FAA to support the further integration of UAS into the airspace of the United States. One of those provisions amended Section 2209 of FESSA to add rail facilities as an additional fixed site facility sector to be protected.

On May 16, 2024, Congress enacted Public Law 118-63, entitled FAA Reauthorization Act of 2024 (FAARA 2024). FAARA 2024 reauthorized the FAA through FY2028, including activities and programs related to airport planning and development, facilities and equipment, and operations. With respect to fixed site facilities, Section 929 of FAARA 2024 amended Section 2209 to add state prisons as an additional fixed site facility sector to those designated previously. FAARA 2024 added the following definition to section 2209:

‘‘(g) DEFINITION OF STATE PRISON.—In this section, the term ‘State prison’ means an institution under State jurisdiction, including a State Department of Corrections, the primary use of which is for the confinement of individuals convicted of a felony.’’

In light of the foregoing inaction of FAA compliance with prior specific Congressional mandates, the text in Section 5 requiring the FAA to implement Section 2209 with all due haste is entirely understandable if not long overdue.