Drones and BVLOS
German drone laws define BVLOS (Beyond Visual Line of Sight) operations as a specific category of drone flights, in which the operation of a drone is conducted beyond the operator’s visual line of sight if he/she – without special optical aids – cannot see the unmanned aircraft or no longer clearly discern its flight path (sec. 21b par. 1 sent. 2 German Air Traffic Regulation – LuftVO). This means that the realm of BVLOS operations begins with a loss of visual contact with the unmanned aircraft.
The operation of an unmanned aircraft is not considered as beyond the operator’s visual line of sight under the following circumstances:
- the operator is using a visual output device, such as video glasses, and
- the operation is performed below 30 metres.
If both of these conditions are satisfied, the unmanned operation must also satisfy one of the additional requirements in order to be exempt from BVLOS:
- the take-off weight of the aircraft must not exceed 250 grams, or
- the operator can be advised directly by another person about potential threats provided the other person watches the airspace and the aircraft is constantly within his/her visual line of sight (sec. 21b par. 1 sent. 3 Air Traffic Regulation).
This means that the use of video glasses extends Visual Line of Sight (VLOS) operations only to a very limited extent because flying below 30 metres is inadequate for most commercial drone operations.
The regulators consider BVLOS operations as problematic because this type of operation may result in mid-air collisions with manned aircraft and thus increase the risk of property damage and personal injury on the ground. According to sec. 21b par. 1 sent. 1 no. 1 Air Traffic Regulation, commercial BVLOS operations of Unmanned Aircraft Systems (UAS) are forbidden if the take-off weight of the device amounts to 5kg or less. The reason for this general operating ban can be found in sec. 21a par. 1 sent. 1 no. 1 Air Traffic Regulation. According to this statutory provision the operation of UAS with a take-off weight not exceeding 5kg requires no authorization to fly. In the absence of an authorization process the authorities cannot check whether the intended BVLOS operations are in accordance with the law. However, the operating ban is not absolute. Commercial operators of lighter drones can apply for an exception permit to perform BVLOS operations (sec. 21b par. 3 Air Traffic Regulation).
The Air Traffic Regulation does not contain any specific requirements regarding the admissibility of BVLOS drone operations. Rather, the authorities must rely on sec. 21a par. 3 Air Traffic Regulation. According to this general provision the intended operation of the UAS and the use of air space must not be a threat to the safety of air traffic or to public safety and order. Moreover, it must specifically avoid any violation of the statutory provisions regarding data privacy and nature protection. And finally, the operation must ensure that noise levels emanating from the drone are adequately taken into account.
If the take-off weight of the drone exceeds 5kg, the operator is required to obtain authorization to fly for the intended operation of the drone. As part of the authorization process, the competent authority will also check the admissibility of the intended BVLOS operations. The general criteria of sec. 21 par. 3 Air Traffic Regulation apply here as well. In addition, the authorities can make use of the explanatory memorandum to the current regulation, which states that the applicant needs to sufficiently describe the necessary evasive and emergency procedures.
The officials in the different German aviation authorities may set different criteria regarding the admissibility of the BVLOS operations of drones. However, the main concerns generally pertain to safety issues, such as the following:
- the technical ability to identify aircraft entering the airspace that is being used by the drone operator and his/her ability to take immediate evasive action, and
- adequate drone operator training in VLOS and BVLOS operations.
In the long run, only the introduction of an Unmanned Traffic Management (UTM) system, will provide the necessary infrastructure to perform BVLOS operations on a large scale. It is clear that with the existing regulations drones are considered as children; they are not supposed to leave the house or the garden. With a UTM system the enormous economic and humanitarian potential of the emerging drone industry can be allowed to develop in unimaginable ways. Because technological progress is the main driver of the drone industry, the regulatory framework is thus clearly in need of urgent revision.