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What's The Status Of US Small Drone Rules That Apply To Real Estate Photography?

In: ,
Published: 05/06/2015
By: larry

PeterSachsI 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' 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 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' 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.



7 comments on “What's The Status Of US Small Drone Rules That Apply To Real Estate Photography?”

  1. Larry's correct. It comes down to a person's tolerance for risk. Whether state and local laws are valid or not can come down to how much much money one wants to put into fighting a fine should they be cited. I find it very difficult to take the advice of an attorney who makes a living representing defendants in this type of case. There is a bit of conflict of interest and a strong bias to any information published on their web site.

    I've only seen one post that named an insurance company claiming to cover UAV commercial activities and a later posting of the text of the policy that gave them a fat loophole to deny claims. They stated in the official language that operation contrary to laws or ordinances would invalidate coverage. Anybody that has had to battle an insurance company to receive a payment knows that there can be a long and frustrating back and forth before anything gets resolved. In the mean time, payment for damages may have to come out of one's own pocket to forestall any suits.

    Will agents/purchasers pay enough to make the venture profitable? In the absence of licensing or permits, are you willing to invest in professional level equipment knowing you may need to face competition from the ubiquitous teenager living in their parents basement that is only concerned with earning enough money to buy beer? Do you have the financial ability to cover accidents in the absence of insurance or in advance of getting an insurance company to pay up? What value are you bringing to the job that an office or agent couldn't by purchasing their own $300 toy RCMA? How many properties are you photographing that would truly benefit from a higher POV than a pole can provide? The novelty will wear off in a year or so. I see agents using UAV imagery that only serves to highlight how tightly packed the homes in the neighborhood are or how close the home is to negatives such as transmission lines and railroads.

  2. Lack of insurance can cost you dearly. Up here in Canada it is different since we actually have some regulations that allow applications for special flight operations. With that we have to carry insurance and there are a few companies providing it. My conventional insurer told me no UAVs so I had to go elsewhere to insure mine. It's all about what are you willing to risk.

  3. Ken Brown said: " I find it very difficult to take the advice of an attorney who makes a living representing defendants in this type of case. There is a bit of conflict of interest and a strong bias to any information published on their web site."

    From Peter Sachs website:
    "I’ve been licensed to practice law in CT since 1994, but the only law I practice is public interest law, and I don’t represent anyone other than myself, ever."

  4. My impression is, after listening to many opinions of the subject and after joining a DJI Phantom2 Vision+ FaceBook page, I am coming to the conclusion that trying to come to any firm decision on the future of Drone or UAV or UAS use for real estate at this point is an excercise in futility at this point.

    Commercial use clearly is banned by the FAA although apparently not in actual law. The FAA seems to be most concerned about safety, as is right, and seems to have limited their enforcement on that basis. But they claim they have jurisdiction over all air space which starts at 1/2" above the ground on public or private property. Until the actual regulations are published, when they become published, we simply won't know. Other countries seem to be ahead of us. Some idiot flyers of these little craft, most of which weigh less than 5lbs, are clouding and confusing the issue by flying into airport space, The White House, over crowds and other plain commonsense danger zones especially since these sophisticated craft have yet to be perfected and can loose contact with the controllers that tell them what to do as well as the satellites that tell them where they are. Some are pilot errors and an lot are attributed to faults in the craft design and equipment themselves.

    And I speak from experience since to be ahead of the permissions curve, I wanted to buy one and practice so I could learn how they work and be an experienced enough pilot that once the regulations came out, I would be ready to get my permissions, license etc and go to work. The latest of these DJI Phantoms are a huge improvement over the ones that came out just over a year ago and are incorporating many of the improvements that technical users made themselves and posted on the DJI Phantom2 Vision+ Facebook page. So fewer fly aways that could possibly cause danger and steadier shooting platforms that fly safely under more stringent circumstances are the result. I have a feeling that by the time the FAA comes out with its rules, the nature of the area they are trying to regulate will have already evolved beyond their regulations. A very fast evolution in applied technology indeed.

    Quite apart from the issue of loss of control by loosing satellite connection, the small electric motors that can wear out in mid flight, the computer chips that control them can go bad or faulty wiring contacts can jig loose, the batteries that can die on you in mid air, the loss of contact with the craft from the controller due to various kinds of interferance, all can make even the newer versions fall out of the sky or fly away on their own and then fall out of the sky. So they are something to be given profound consideration to using commercially and privately. And as pointed out above, both liability and insurance is certainly part of that mix.

    Some like to denigrate aerial images as fadish and thus usless for real estate. And when used that way, I am sure they are right. But any re photorapher who has to communicate quickly about a large property, with long access, many differenct crops, trees, gardens, house and guest house(s), horse corrals and barns, outbuildings of many sorts, arenas, suimming pools and so one, know that to be able to show that in one picture that also shows what the surrounding mountains, deserts, fields, ranches, rivers, sea, beaches etc are in relation to the main house, this can be a superlative tool to add to the visual communications arsnal. Not to mention hillside houses that will defy even a 100' pol cam. I do hope that the FAA will use wisdom in coming up with their regulations that will not lump large, medium and very small AUVs into the same set of regulations. AUVs that have wings have very different requirements than quad copters. So hopeing for intelligence and informed rules from our regulators.

  5. The climate we live in now makes it pretty easy to predict where this is going. You can obviously attach anything you want to these drones, and having the use of them be too prevalent would just present a huge security risk. I am not stating my opinion by the way, just guessing where government is limey to go with this. We are such a paranoid society now, and think of what these drones represent, they are pretty much just little miniature versions of 9/11. Again, not my opinion, but this is how I think government will see it. There's no long term future in flying these things around unless you are licensed, certified, registered..........

  6. That is not how the government sees it, not only did the FAA recognize our rights as small business owners to be in this business, the NPRM that the FAA issued provides a very open framework for the development of commercial applications. Not only that they are backing as much of the proposed NPRM into the 333 exemption process as they can.

    Drone operators are not pilots, they are operators so they don't require a pilots license, they will require you to pass a written test to become an operator. The drones themselves are required to be registered but they don't require an airworthiness certificate.

    People who claim these drones are little instruments of terror or they can be used to spy on people do not understand the physics involved, fortunately we have a constitution, a toll that can be used to prevent those people from making the rules.

  7. I live in rural Central Oregon and see this whole issue as pretty simple; I use drone clips to "reveal" a view of mountains or pasture OR to show a ranch/farm property that cannot be easily captured using static video. For the usual "neighborhood" shot - why bother? Use a step-ladder or a pole and don't risk giving the neighbors poodle a haircut or worse. It's just not worth it. The UAV operator I use may chase the occasional horse, but it's always with the owners permission. I'm a real estate broker and I shoot my own stills and do all the static video. I hire a professional UAV operator because I was raised on Pac-Man not Worlds of War (or whatever). I don't want to be retrieving my GH4 from a pond or the top of a Ponderosa Pine.

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