Tuesday, November 11, 2014

Can you use drones for commercial purposes in commercial and residential real estate ?

As of the writing of this blog post, no.

In official FAA terminology, a drone is known as a UAS -- an Unmanned Aircraft System.  The FAA is charged with charged with regulation and enforcement of all air traffic laws, but it was only very recently that it made any official legal pronouncements concerning UASs.

Despite a little early litigation, the FAA has recently announced, loudly and consistently, in numerous official statements and press releases, that it DOES consider a UAS to be an aircraft that is subject to their rules and regulations.

In March of 2014, the FAA went on a “mythbusting” mission to try and educate the public about common myths concerning drones.  Here is their press release, found at http://www.faa.gov/news/updates/?newsId=76381.

Since asserting jurisdiction over drones, however, the FAA has made it clear that recreational use of drones does NOT require any special permit or license.  However, there are limitations to the definition of exempt recreational use:
  1. The unmanned aircraft must be flown solely for hobby or recreational use.  (If you pay someone to fly a model plane or drone, or pay a fee to watch it, that is commercial use and requires special permits from the FAA.)
  2. The aircraft must not weigh more than 55 pounds.
  3. The aircraft cannot interfere in any way with manned aircraft
  4. The aircraft cannot be flown within five (5) miles of an airport unless prior notice given to both the airport operator and the air control tower.        
  5. The aircraft must be operated “in accordance with a community based set of safety guidelines and within the programming of a nationwide community-based organization.”

For commercial use, however, a UAS may not be flown unless the operator has one of the following permits from the FAA:

1.         Certification of Airworthiness:  This is a full civil type of certification process that allows for not only commercial flight, but also manufacture and production.  It entails a very lengthy application, and a very long approval process.  It is used primarily by manufacturers.

2.         Certificate of Waiver or Authorization (“COA”):    This is given on a case by case basis, and it waives compliance with certain FAA regulatory requirements.  The FAA has traditionally given these to governmental entities for scientific research, or on an emergency basis for search and rescue operations.

3.         Special exemption from the FAA:    Where the applicant has demonstrated to the agency why the exemption is in the public interest, and how the flight would not adversely affect public safety.  This type of exemption was recently (9-25-14) granted to six (6) aerial photo and video production companies – took over two years, lots of lawyers and money, and probably some inside lobbying of the US Secretary of Transportation.

Bottom line:   Real estate brokers and agents may not use UAS / drones for commercial use as of this blog post. (At least, not without one of the 3 permitting processes above.)

To our knowledge, no such permit has ever been pursued or granted for real estate purposes. NRT / Coldwell Banker recently issued a nationwide advisory to all its agents to discontinue use of drones until further notice, and the National Association of Realtors® (NAR) has advised the same thing to all its members.

The enforcement mechanisms available for violation of these UAS regulations consist of verbal / informal warnings, formal warning / cease and desist letters, fines and civil penalties, and judicial enforcement.

There is, however, hope on the horizon.  In the FAA’s 2012 reauthorization legislation, Congress required the FAA to come up with a plan (i.e., rules) for “safe integration” of commercial / civil UAS use by September 30, 2015.   The agency is working on rules as of the writing of this post.  One FAA press release suggested they would publish a proposed rule for comment in November 2014, but have not seen anything yet.

NAR is also at the table with the FAA, pushing them to write rules which allow agents and brokers to fly or employ drones for their commercial use, without overly burdensome regulation.

However, according to recent FAA press releases, “safe integration will be incremental.” 

One comment (unofficial) from such press release, issued March 7, 2014, states “[o]nce enabled, we estimate roughly 7500 commercial sUAS [small UASs] would be viable at the end of five years.”    This comment suggests that the drone permitted floodgates are NOT going to suddenly open, with the skies buzzing with drones.  We expect a limited number of drone operators who do this professionally, for agents, for a fee. 

Stay tuned for more information on this topic as regulations and comment develop.

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