June 4th, 2015
I have a lot of people asking, “what’s the status of small Drone rules that apply to real estate photography?” What I always do is refer people to Peter Sachs’ dronelawjournal.com. Peter is a lawyer, drone activist, photographer and small drone pilot and has the best description of the state of US drone law that I’ve seen. In this video, Peter talks about small drone legal issues as of a year ago. Not that much has changed in the last year. The problem with the detail description on dronelawjournal.com is that the description is pretty involved and takes a while to dig through. I thought I’d take a crack at boiling down Peter’s Current US Drone Law page to some significant bullet points (this should not be considered legal advice):
- The Directive from Congress:
- FAA modernization act of 2012 directs the FAA to create drone regulation by end of 2015.
- My note: It is highly debatable whether the FAA will make this 2015 date
- What States are doing:
- States believe they have the right to create laws concerning drones and in many cases are passing legislation because small drones appear to many to be out of control.
- States are busy passing legislation that claim to regulate drone activity in various states.
- What the FAA says:
- It’s illegal to fly drones commercially unless you have a section 333 exemption
- To get a 333 exemption you need a pilot’s license along with other criteria. As of June 2, 2015 the FAA has granted 489 section 333 exemptions. They appear to be processing about 8 a day.
- In Feb 2015, the FAA released proposed rules that it’s been working on for public review for 60 days. These rules are intended to satisfy the FAA modernization act of 2012 noted above.
- What Peter says:
- Drone laws: “There is no federal statute, and no other federal regulation (other than 91.13, Which says, “No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”) that is codified in our bodies of law, that specifically applies to drones and that is currently applicable to the general public.
- The FAA has never enforced its commercial use ban: “The FAA has not attempted to enforce its claimed new rules in the Interpretation. Nor has it ever attempted to enforce its long-claimed commercial use ban. Not once. Unless someone operates recklessly, at most they will receive an “educational letter” sent by FAA non-attorneys, that are carefully worded to encourage, but never order the recipient to do or not to do anything.”
- In the Pirker case: “the FAA did not rely upon that compensation at all for its proposed civil penalty. It couldn’t. There existed no FAR that prohibited commercial operation (and there still exists no such FAR). Instead, it based its Proposed Order of Assessment solely upon an allegation that Pirker flew recklessly, in violation of FAR 91.13.”
- State laws: “State and local governments have passed legislation that purports to regulate drone flight, but if challenged in court, any such laws would be considered preempted by the federal government’s intent to “occupy the field,” and, therefore, be invalid.”
So if you are a real estate photographer wanting to provide Drone photos or a Realtor wanting to hire a contractor to shoot video for you how do you decide what’s legal? Most of the media just parrots what the FAA says. It doesn’t take a rocket scientist to see that there a huge number of Realtors using drone video to market real estate. Is it all being done by those 489 with section 333 exemptions? Probably not.
This summary of the status of drone rules relies heavily on the information from Peter Sachs’ dronelawjournal.com website. How accurate is it? My sense is that it represents the general consensus of the large community of small drone enthusiasts and activists. What you do in the area of small drones depends a lot on who you believe and what your tolerance for risk is. If you are waiting to do anything with small drone photography and videography until this sorts itself out you may have a long wait.