The Federal Aviation Administration is once again warning the real estate industry that it considers the use of drones to capture aerial images of properties to be a commercial use of the unmanned aircraft requiring special authorization.

The FAA cites “professional real estate or wedding photography” as an example of commercial use of drones on a website it recently launched with industry groups to promote safe operation of the aircraft.

The safety campaign, “Know Before You Fly,” was timed to reach the public just before Christmas, when many people are likely to receive drones as gifts. It includes a YouTube video (below) with the description: “Did you get a new unmanned aircraft for the holidays? Stay off the naughty list!”

The “Know Before You Fly” campaign comes as the FAA continue to draft rules for “unmanned aircraft systems” that are reportedly shaping up to be stricter than drone advocates had hoped for. Another problem for real estate brokers and agents who have been flying drones to capture aerial footage is that the rules aren’t likely to be finalized until at least 2017.

In the meantime, pilots must obtain special permission from the FAA to operate drones commercially. As of Dec. 10, the FAA had received 167 requests for exemptions from FAA rules, and granted 12.

This is the second time that the FAA has made it clear that it considers real estate agents or companies who use drones to capture images of properties for compensation or to market those properties to be commercial operators.

The first warning came in June, when the FAA explicitly stated that “a Realtor using a model aircraft to photograph a property that he is trying to sell and using the photos in the property’s real estate listing” is not engaged in a hobby or recreation. Nor is “a person photographing a property or event and selling the photos to someone else.”

The following month, lawyers with Realogy subsidiary NRT LLC warned agents working out of more than 200 offices in the northeastern U.S. not to commission drone photography from vendors until the FAA issued “clearly defined rules” governing the commercial operation of drones. The brokerage said it would not process or distribute drones provided to it by sales associates in those regions.

In the absence of regulations, drone proponents have questioned the FAA’s authority to impose fines or other penalties on drone operators. In November, the National Transportation Safety Board ruled that the FAA can crack down on people who operate drones in a reckless or careless manner, clarifying that the agency currently has some authority over drone use.

Drone proponents say the NTSB ruling did not address whether the safe operation of drones for business purposes is prohibited by any law, an issue that’s still being decided in court.


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