Are You Confused About US Drone Regulations?

June 6th, 2016

DJIPhantom3Jack recently asked:

I am confused about the rules and regulations about flying a drone for aerial photography. If a person is a license commercial pilot can they fly a drone for commercial/real estate photography purposes? Or are they required to be certified by the FAA? Real Estate agents in this area are very leery of using a non-certified drone pilot to take videos/photos of their property listings via a drone. Any helpful information on this is appreciated as we want to make sure that if we offer aerial photography via a drone that we are doing it legally.

Don’t feel bad about being confused about US drone regulations, most people are. My source for keeping up with  Federal drone regulations is Peter Sachs (a Lawyer and an avid Drone enthusiast) over at Drone Law Journal. Nowadays there are both Federal drone regulations and State laws that pertain to using drones. States have gotten into the act because state legislatures are, with good reason, impatient with the lack of progress that the FAA is making. Many or all these State regulations may not be enforceable (Peter says: by federal statute, “[t]he United States Government has exclusive sovereignty of airspace of the United States” (49 U.S. Code § 40103(a)(1))). Everyone is on their own for finding out what your state regulations are (most states have some unique regs) but Peter’s site is a great resource for the federal regulations.

Here is a summary of what Peter’s site says about federal drone regulations:

  1. Currently to fly a commercial drone (as in real estate photography) with the FAA’s blessing you need to have a 333 exemption (which requires a pilot’s license). But there is a 6-month backlog and 4000+ applications waiting to be processed.
  2. The FAA is working on coming up with a much simpler authorization to fly commercially called a Part 107. Part 107 will not require a pilot’s license. The FAA has promised this new Part 107 process for “late spring” of this year (as of this writing they have 15 days left) but the FAA has missed most of it’s passed drone promises.
  3. Peter also says. “…despite its claim of illegality, the FAA has never attempted to enforce against anyone solely for operating a drone commercially without a 333. Jason Koebler of Motherboard FOIA’ed all of the FAA’s enforcement actions, and they reveal the agency has never initiated a single enforcement action based solely upon commercial operation. Instead, each was based on an alleged violation of some existing FAR, mostly FAR 91.13 (careless/reckless operation). Why isn’t the FAA enforcing against something it claims is illegal? They know there is no legal basis for that claim, and that they will lose”.

Peter is recommending that you wait for the Part 107 process to be complete if you haven’t already applied for a 333 exemption because the chances are it will be faster.

There, now are you still confused?

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9 Responses to “Are You Confused About US Drone Regulations?”

  • I really hope they get this mess figured out soon!

  • Whether or not State and local restrictions are legal, if you are cited, you still have to defend yourself. That could mean thousands of dollars and days of time even if the case is thrown out over jurisdiction issues. If you get a judge with young daughters, they may not want to find in your favor. You have to ask yourself if it’s worth the risk to take pictures of roofs.

    Insurance is another sticking point. If you don’t have an exemption, you are flying illegally if you are using a RCMA for commercial work. Insurance companies do not honor claims if you are involved in an illegal act. It’s a nice little out for them to offer “drone” insurance and not have to pay out any claims.

  • I’ve been trying to keep up with this as well…. Seems like a lot of people trying to fly under the radar here. Until the new FAA regs take effect, to be in compliance you must have the 333 exemption and be a licensed pilot. It’s the license pilot requirement that most are not compliance with. Many Drone companies and individuals say they have the 333 exemption and other can fly under their exemption…

    I don’t believe that is correct. You need to have or be covered under someone’s 333 exemption and be a licenses pilot, to be in compliance, correct?

  • There are two things to comment on.

    First, The FAA finished with Part 107 rules in March and the rules went to the Office of Information and Regulatory Affairs (OIRA) in the White House. OIRA reviews rules prior to publication to analyze possible economic effects or policy issues. OIRA has up to 90 days to review a rule. (My information is that the 90-days would be June 16). The submitting agency will then either send the rules to the GPO for publication, or if OIRA raises issues in the rule it goes back to the agency for corrections. (Then back to the OIRA). Think of OIRA as peer review by other departments and agencies. This way other departments have an opportunity to make sure that a rule made by one agency doesn’t negatively impact another.

    Second, an airman’s certificate will still be required for operations under Part 107, but Part 107 creates a new class of Airman’s Certificate that only requires a written exam. You don’t need to learn to fly a Cessna to get your sUAS Airman’s Certificate under Part 107.

    Peter Sachs is correct that the FAA has never prosecuted an uncertified drone operator for a commercial drone flight. This is because the FAA has no rule that prohibits an uncertified operator from flying a drone for commercial purposes. The FAA can refer an uncertified drone operator to the US Attorney for violation of 49 U.S. Code § 44101 which *does* require airman certification, but Part 49 is not an FAA rule. I think it extremely unlikely that the DOJ will expend any resources prosecuting a commercial drone operation where no one is injured and no damage occurs.

    Insurance companies will pay a liability claim regardless if the operation was illegal, but you will likely never be able to buy insurance again. If they looked for these rumored loopholes (maybe they did decades ago), then few liability claims would ever be paid, making the product (insurance) worthless. Think of it like this, if you run a red light and cause an accident, will your auto liability insurance pay for the subsequent damages even though running the red light was illegal? If a Cessna runs out of gas and crashes into a home, the insurance will pay the liability claims even though flying without sufficient fuel reserves is a violation. There are some exceptions when insurance fraud is a factor, but in general, your insurance doesn’t care if your operation was violating any rules or laws.

    I am not a lawyer. (My lawyer requires this disclaimer).

  • Is anyone saying “screw it” and filming properties with their drone anyways? Here in central Ohio, the media firms I see advertising drone service are offering them for “free” with their other video and photography service. I do not see that being ok with the FAA if they are caught, as the person still profited off the drone. I am seeing more aerials for RE but still, no one here is FAA exempted. I have a drone and am willing to say screw it because realtors have told me that they will find someone else who will, if I do not.

    Here is one example that one of my clients is using, $400 for photography, videography and aerials. They are not local so my guess is that it gets subcontracted (prob through thumbtack)

  • Aaron, I don’t say “screw it” but it is tempting as weekly, Realtors ask me if I do drones. Thank goodness I have met my equipment budget for the year but they are definitely for next year. Hopefully by then the rules will be ironed out. While having been a private pilot over 20 years ago before they had the watered down ‘recreational’ license, theoretically, I could reactivate it by passing the flight physical – but that is an issue. Hopefully it is ‘written test only’ or even add a check-off flight performing certain maneuvers with an inspector for a drone only license.

    While I don’t take drone photography or video, I do have stills or video given to me by the homeowner which is incorporated into the tour/video. I have one Realtor who lives and lists in a 55+ neighborhood. A bunch of the retiree residents have formed a drone club…go figure. I had another where the homeowner took it of their house and asked me to include it.

  • Aaron, I have done some limited usually horse property with mine, out in the country, only way to photograph a horse arena, horse facilities. Guess i’ll continue until I get the letter, I don’t fly close to an airport, and for the smart comments about roofs and daughters that’t not my use either, where are the minds of some.

  • I tend to think this is much ado about nothing. (I have been flying drones commercially for three years) It’s simply a case where law and regulation have not caught up with technology. Law enforcement officials are not going to enforce outdated laws simply because they exist. If a commercial drone operator is flying in a responsible manner for someones benefit they will be fine. It’s illegal to drive without at least one hand on the wheel but I don’t think a lot of Tesla owners are getting ticked for it.

  • @Stephen Mann. Your auto insurance will cover something like running a red light and causing an accident, but DUI is beyond the pale. So is evading the police. I just looked at my policy.

    If your RCMA was hanging from the 12kv electric lines, will the insurance pay the $9k-$10k bill from Southern California Edison to get it down. The bill can be that high though it is an extreme case. Insurance companies are notorious for looking to not pay claims. More than run ins with the law, insurance issues are the bigger deal.

    @William, KMSMA

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