FAA not backing down on regulating commercial use of small drones

Safety a consideration as regulators appeal judge's decision and pursue formal rule-making

On March 7, the Federal Aviation Administration announced that it would appeal a federal court ruling that essentially allows drones to be legally used for commercial purposes.

A day earlier, National Transportation Safety Board Administrative Law Judge Patrick Geraghty dismissed all charges and claims against Swiss UAV pilot Raphael Pirker.

Drone image via Shutterstock.
Drone image via Shutterstock.

As I discussed with Matt Murphy back in January, Pirker was the first person fined by the FAA for the commercial use of a drone. He was fined $10,000 for recklessly flying the unmanned aerial vehicle (UAV) on a shoot at the University of Virginia.

Judge Geraghty ruled that during the time of operating the drone, “there was no enforceable FAA rule or FAR Regulation applicable to model aircraft or for classifying model aircraft as [unmanned aircraft systems].”

Pilots and hobbyists were overjoyed by the announcement, and the news spread quickly across the Web. The ruling could potentially have a significant impact on the real estate industry. Many marketers, photographers, video producers and land surveyors have been literally and figuratively flying under the radar.

Personally, I have wanted to upgrade to the DJI Phantom 2, which includes a gimbal and much smoother cinematography. Unfortunately, the legal ramifications make upgrading to expensive equipment risky. However, any perceived excitement regarding the announcement was short-lived.

The FAA filed an appeal that will go to the United States Court of Appeals in the District of Columbia. The official announcement by the FAA published on its website states, “The FAA is appealing the decision of an NTSB administrative law judge to the full National Transportation Safety Board, which has the effect of staying the decision until the board rules. The agency is concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.”

For the FAA, safety certainly plays an intricate role in any decision-making."

The timing of the ruling and appeal is interesting. The FAA is said to be drafting a formal rule for small drones (weighing less than 55 pounds) that should be completed by the end of 2014. The appeal certainly obscures the initial ruling and dampers any excitement for professionals hoping to legally add aerial photography and video to their real estate services.

For the FAA, safety certainly plays an intricate role in any decision-making. BusinessWeek recently ran a piece that described three people being struck and injured by a drone that crashed into the crowd at a sporting event.

The article, entitled “The FAA Finds Commercial Drone Flights Hard to Police,” examines the difficulty the FAA faces trying to police people from commercially utilizing drones. At best, it’s hand-to-hand combat, and despite what the organization states, they are really not structured for this type of enforcement.

I am not sure if it’s feasible or realistic but I have always thought that being a licensed UAV pilot would be advantageous. The premise would be the same as driving an automobile: You pass a test, receive a license and renew the license accordingly.

It’s also worth noting that the FAA updated the FAQs regarding UAVs. I’m not going to cover all of them (you can read the updated fact sheet here), but I’d like to cite one in particular that I believe is directly applicable to the real estate space and every real estate professional should be aware of. As stated on the FAA website:

Myth #4: Unmanned aircraft systems (UAS) flights operated for commercial or business purposes are OK if the vehicle is small and operated over private property and below 400 feet.

Fact: All UAS operations for commercial or business purposes are subject to FAA regulation. At a minimum, any such flights require a certified aircraft and a certificated pilot. UAS operations for commercial or business purposes cannot be operated under the special rule for model aircraft found in section 336 of Public Law 112-95.

To date, only two UAS models (the Scan Eagle and Aerovironment’s Puma) have been certified for commercial use, and they are authorized to fly only in the Arctic. Public entities (federal, state and local governments and public universities) may apply for a Certificate of Waiver or Authorization (COA). The FAA reviews and approves UAS operations over densely populated areas on a case-by-case basis.

I am certainly not a lawyer and I don’t play one on TV, but this language clearly states that using a small drone to commercially film something such a property tour on private property is not permitted without FAA approval.

Now, it remains to be seen how the Raphael Pirker ruling or the FAA appeal process will impact these guidelines. One thing is for sure, the future of small drones for commercial use is still up in the air.

Tom Flanagan is the director of information technology at Residential Properties Ltd. in Providence, R.I. You can contact him at tflanagan@residentialproperties.com or @tflan on Twitter.


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