Before I discuss the current legal landscape surrounding commercial drone use, namely FAA Part 107 regulations, I would like to briefly discuss the recent legal and illegal use of drones for commercial purposes. Once the cost of drones was significantly reduced, and individuals and businesses realized that there was much money to be made by pursuing commercial drone business, the FAA began to feel immense pressure by the public to provide some form of regulatory framework to operate by. In the absence of that, there was a flurry of illegal drone prior to the FAA’s adoption of UAS regulations.
Prior to 2015, drone operations that were of a commercial nature were considered to be illegal. Period. However, this didn’t mean that people weren’t brazenly defying these laws in pursuit of the almighty dollar. Reports can be found as early as 2013 of people illegally providing commercial drone services, and even advertising these services on their websites.
Some people would try to get around the commercial use ban, by stating that the drone flight itself was free, and they were only charging customers for video editing. This tactic didn’t fool anybody, including the FAA, as cease and desist letters began to be sent to these businesses by the FAA. 17 cease and desist letters were sent to UAS operators in 2012 and 2013.
However, due to the unfinished nature of the FAA regulations, many operators began to push back against the FAA enforcement of its fluid regulatory structure. In 2011, a drone operator named Raphael Pirker was hired by the University of Virginia to obtain aerial photo and video, and was subsequently fined $10,000 by the FAA for flying his drone “in a careless or reckless manner so as to endanger the life or property of another.” The infractions alleged by the FAA were that he flew at extremely altitudes, in the vicinity of moving cars in a tunnel, and in close proximity to railroad tracks. Pirker fought this decision, and took his case before an administrative law judge at the National Transportation and Safety Board (NTSB). He argued that since the FAA had not issued any formal rules governing drone use, it had no authority to fine people operating drones. The NTSB judge agreed with Pirker on March 6, 2014. The judge asserted that if the FAA’s interpretation of its existing regulations were correct, then its position would then result in the argument that any flight in the air could be subject to these regulations, to include paper airplanes, balsa wood gliders, or any other toy aircraft. The FAA immediately appealed the decision, and subsequently settled with Pirker for $1,100 in January 2015. What his case did was essentially leave the FAA powerless to regulate commercial drone usage in the United States while the appeal process was being carried out. This was a very interesting read, and I highly recommend taking a few minutes to check it out.
Section 333 Exemptions
During 2014, the FAA was increasingly under fire for not providing a formal process for drone operators to legally enter the national airspace system for commercial operations. In response to this public scrutiny, the FAA began allowing commercial operators to petition for legal entry into the National Airspace System (NAS). All aircraft that operate in the national airspace require a certificated and registered aircraft, a licensed pilot, and operational approval. From the FAA website, “Section 333 of the FAA Modernization and Reform Act of 2012 (FMRA) grants the Secretary of Transportation the authority to determine whether an airworthiness certificate is required for a UAS to operate safely in the National Airspace System (NAS).” Prior to the finalization of the small UAS rule (Part 107), the FAA would review petitions on a case-by-case basis to determine whether certain unmanned aircraft were deemed safe enough to perform commercial operations. As of September 28, 2016, 5,552 Section 333 exemptions have been granted, with the first one occurring on September 25, 2014 for Aerial MOB to perform closed-set filming
For now, if you currently have a Section 333 exemption, it will still be in effect until it expires, which is usually two years after it was issued. In addition, the FAA is still processing Section 333 exemptions. It is unclear whether Section 333 Exemptions will continue to be granted into the foreseeable future, or whether the Part 107 rules will become the supreme law of the land, but for now they are still a viable path to pursue legal entry into commercial drone applications. The FAA has done a very nice article providing some guidance to individuals about determining your best option between Section 333 exemptions and Part 107 certifications here:
FAA Part 107 Regulations
The small UAS regulations (Part 107) set forth by the FAA took effect on August 29, 2016, and allowed a legal way for drone operators to conduct commercial operations for drones weighing less than 55 pounds. The full version (624 pages) of these regulations can be found here:
I will be discussing how these regulations affect anybody shooting real estate photo and video. A more reader-friendly version of the regulations can be found here:
Before you operate a drone for commercial purposes, you must be a licensed Part 107 UAS pilot. I will be discussing this in greater in a later post, but the basic information can be found here
Additionally, your drone must be registered for commercial purposes. The registration process is extremely simple, and the instructions for registration can be found here:
I have summarized the major operational limitations below, and explained how they affect the individual shooting drone video for real estate purposes.
- The unmanned aircraft must weigh less than 55 lbs.
- This regulation does not put any burden on the typical operator that is shooting real estate videos, as most systems that would generally be used weigh much less than the 55 lb limit, with most weighing less than 10 lbs.
- The drone can only be flown visual line-of-sight (VLOS) only.
- This regulation should not prove to be particularly cumbersome to those shooting real estate videos. This essentially just means that you must be able to maintain visual contact with the drone at all times. This could become an issue if you needed to shoot video behind a tall building. But upon full reading of the regulation, the FAA seems to put some wiggle room in the interpretation. It gives the example of a roof inspection, stating that it was acceptable to lose VLOS “briefly” behind the building, as long as it would be possible to quickly maneuver the drone back into visual contact. Basically, just use your common sense with this requirement. If the video you are shooting only requires you to lose visual contact for a few moments, then you are probably okay. If you will have an obstruction between you and the drone for the entire length of the video, then you are probably not satisfying VLOS requirements.
- At all times the drone must remain close enough to the remote pilot in command and person manipulating the flight controls to be able to see the aircraft with unaided vision (corrective lenses are acceptable)
- This regulation means that binoculars are not acceptable, and drones with first person view (FPV) must use a visual observer to maintain visual contact with the drone if the operator is viewing the video through the controller screen. This should only pose a challenge if the property has lots of acreage that must be covered.
- Drones may not operate over persons not participating in the operation, unless they are under a covered structure or inside a stationary vehicle
- In most cases, this requirement should not present any issues, but if this is a problem, it is one of the regulations that is waiverable, which I will explain later
- Daylight-only operations, or civil twilight if the drone is outfitted with appropriate anti-collision lighting. The anti-collision lighting must be visible for 3 statute miles.
- Most real estate photo and video will be taken during daylight hours, but if nighttime photo or video is desired, perhaps to showcase a beautiful skyline at night, the drone operator can also apply for a waiver to this requirement.
- Must yield right of way to other aircraft
- No explanation needed
- May use visual observer (VO) but not required
- The decision of whether or not to use a visual observer will come down to what is being captured, aerial photo or video. If only aerial photos are being captured, a visual observer is a nice to have, but not a necessity. You can navigate the drone to the desired location, adjust the camera as needed, take the shot, and move on to the next shot without any issue with maintaining the VLOS requirements. However, if aerial video is being captured, then a VO is definitely a necessity. You will want the VO to maintain visual contact with the drone, while the person manipulating the controls views the video as it is being captured, to ensure that the video is fluid, and all appropriate transitions and angles are being captured. This will help to limit the number of times the video must be recorded.
- Maximum groundspeed of 100 mph, and maximum altitude of 400 feet above ground level
State Drone Regulations
In addition to the federal drone regulations put forth by the FAA, several states have also adopted their own sets of drone regulations. As of this writing, the following states have passed their own sets of drone regulations:
- New Hampshire
- North Carolina
- North Dakota
- West Virginia
Wherever you are recording drone videos, it is imperative that you verify that you are not violating not only FAA regulations, but also your state and local regulations. The following link gives a great synopsis of the most recent drone regulations that are being put on the books:
Applying for an FAA Waiver/Airspace Authorization
As previously mentioned, there are some sections of Part 107 regulations that are waiverable. These regulations are listed below:
- Operation from a moving vehicle or aircraft
- Daylight operation
- Visual line of sight aircraft operation
- Visual observer
- Operation of multiple small unmanned aircraft systems
- Yielding the right of way
- Operation over people
- Operation in certain airspace
- Operating limitations for small unmanned aircraft
The link on the FAA website to request a waiver to any of the regulations listed above can be found here:
Another useful link I found for this process is the listing of Part 107 waivers granted. You can scroll through these, look for your particular waiver, and see what additional documentation the FAA required of these individuals in order to waive the regulation.
It should be noted that there is no guarantee that a waiver will be granted. The FAA evaluates on a case-by-case basis to determine that the UAS can be operated safely within the conditions of the waiver. It should also be noted that the FAA recommends that these waivers/airspace authorizations should be applied for at least 90 days in advance in order to give them time to process.
We are now in a situation as a society where a great number of private citizens are in possession of a machine that can literally hover over your backyard and watch what you and your family are doing. The FAA does not explicitly address the privacy concerns that are created by drone usage, it simply suggests that all drone operators check local and state regulations with regards to privacy practices while collecting drone photo and video. Some state regulations put forth thus far address privacy concerns by explicitly stating that it is illegal to capture images that can be used to identify other individuals without their express consent. Even in situations where state and local regulations do not explicitly ban drone usage over other’s property, it is best to exercise good judgment, and not violate the privacy of others when flying your drone. When operating your drone for real estate photography, do your best to only capture the prospective property, and not the surrounding homes. For situations where this is not possible, remove as many as properties as possible during the video editing phase.
The drone photography world is moving very fast. In an effort to keep up, federal, state, and local government are putting forth legislation to address this new form of media. It is up to you to ensure that you are following all laws, federal, state, and local, before you operate your drone commercially. Ignorance will not be an acceptable excuse if you find yourself to be in violation of any regulations. Well, that’s all I have for today. Now for my legal disclaimer. I am not a lawyer, nor do I claim to be an expert on drone regulations. The opinions expressed on this site are simply that, my opinions. Use them as guidance only. Next week I will be showing a cost-benefit analysis to determine whether you as a realtor should be operating your own drones, or be hiring local drone service operators. See you next week!