Set yourself apart from the crowd in the real estate business in 2016 – Drone Law Frequently Asked Questions!

Introduction

If your real estate company is thinking about using Drones in your business this year, (for example a property manager looking to showcase new rentals, or a residential broker or sales agent looking to highlight a new luxury listing, or commercial brokerage seeking to highlight a new industrial property or piece of land for sale), being able to build your niche may depend on whether or not you are able to become a leader in your field by obtaining a commercial drone license.  We can help brokerages in California and Arizona (we are licensed to practice law in both states) obtain the approvals needed to take leadership and establish authority in your marketplace by improving your videos and listing presentations. This blog will provide some general information you should be aware of if Drones are in your 2016 or beyond game plan.

If you are shooting footage for use in your videos, another important topic (not addressed in this blog) is who owns the aerial film footage, and are you able to copyright protect your drone video?  We will address this in another blog.  Part of this blog were written by a law clerk for the firm.

Important resource: here is a link to a article on Drone by the National Association of Realtors.

Arizona Unmanned Aerial Vehicle (“Drone”) Law: 

Our law firm can help you or your company navigate the complexities of registering your Drone and getting permission from the Federal Aviation Authority (“FAA”) to fly your Drone for recreation or for commercial purposes. We are able to represent Public/Government Entities, hobbyists, businesses, private universities, and entrepreneurs – including real estate agents and brokers.  If you want to fly your Drone for commercial purposes (to make money), you need to file a petition for a section 333 exemption with the FAA as soon as possible.   Other law firms may charge exorbitant fees (upwards of $8,000-$15,000) and won't be able to provide the quality legal services and attention you need to get flying fast.

Below are a list of Frequently Asked Questions related to Arizona Drones, Drone Law, Section 333, and Drone Insurance.  Petitions for Section 333 Exemptions can be tricky.  If you purchased a Drone to use for commercial purposes, you will want to contact an aviation attorney who can prepare and file your Section 333 form.  Our goal in providing this information is to give you an accurate picture of the legal landscape you will have to navigate.  Here are some important questions to consider.

Why Do I Have to Register My Drone? 

Federal law requires Drone registration.  The FAA estimated that over 1 million drone purchases were made over the 2015 holiday season.  That is amazing and the numbers are growing fast. The FAA is concerned about the massive influx of Small Unmanned Aircraft Systems (“sUAS”) and the risk of unsafe operation as more and more Drones enter our airspace.  Problems can involve “peeping Toms” looking for bikini shots, trespass, and invasions of privacy along with personal injuries to bystanders and risks to commercial aircraft.

In October 2015, a hearing was conducted at the US House of Representatives on “Ensuring Aviation Safety in the Era of Unmanned Aircraft Systems.”  The testimony of Michael G. Whitaker, Deputy Administrator of the FAA, among others, has supported the need for new Drone registration policy.

Registering your aircraft allows the FAA to quickly identify a Drone in the event an incident arises in order to ensure safety of Drone operators, others on the ground, and manned aircraft.  Registration also allows the FAA to educate more operators about Drone safety as more information becomes available.  The mandatory registration went into effect on December 21, 2015.

Drone owners who previously operated a Drone for recreational/hobbyist purposes prior to December 21, 2015 must register no later than February 19, 2016.  If you have purchased a Drone recently to use for recreational/hobbyist purposes, you must register on later than February 19, 2016.

Who Has to Register? 

•       Registration is required if you own a Drone and want to use it for recreational or hobby purposes (not for making money).
•       You must be 13 years of age or older before you are permitted to register a Drone. If you are less than 13 years of age, then a person who is at least 13 years of age must register the Drone.
•       All owners of Drones weighing more than 250 grams (0.55 lbs.) and less than 55 lbs. must register either online or by paper.
•       Only individual recreational or hobby users who meet U.S. citizenship requirements are able to register their Drones using the FAA's online system.
•       Once registered, a certificate of registration will be available to download and will be sent to your email address. When operating your Drone you must be able to present the certificate in either print or electronic format if asked for proof of registration.
•       If you are a business or seek to use your Drone for non-recreational purposes (to make money), you must instead petition the FAA for a Section 333 Exemption.  

What Are Some Examples of Non-Recreational Uses for Drones? 

The FAA has identified a few examples of the types of non-recreational uses for Drones.  Non-recreational also means commercial purposes in connection with a business.  For example, if you use your Drone to take aerial photographs or videos and are selling or attempting to make available for sale these photos or videos, you will have to petition the FAA for a Section 333 Exemption, and must be granted the Section 333 Exemption from the FAA before you profit or attempt to profit from your endeavor.  Other uses that are classified as commercial use in connection with a business includes using your Drone or to provide contract services to inspect industrial equipment or factory inspection.

Also, using your Drone to provide professional services would require a Section 333 Exemption.  Examples of professional services includes, but is not limited to:

•       Security
•       Telecommunications
•       Real estate photography – residential and commercial
•       Wedding photography and videography
•       Professional cinema photography for a film or television production
•       Land surveying, GIS, mapping
•       Wildlife and forestry monitoring
•       Search and rescue
•       Medical supply delivery
•       Tourism

What Is a Section 333 Exemption? 

By law, any aircraft that operates in the national airspace requires a certified and registered aircraft, licensed pilot, and operational approval from the FAA.  A Section 333 Exemption allows Drone operators who are looking to use their Drone for non-recreational purposes, the authority to use their Drone safely in the national airspace.

More and more Drones are being purchased as time continues.  People who buy Drones sometimes look for unique ways to profit from the ability to capture unique photo and video vantage points that were previously either impossible to get, or extremely cost-prohibitive.  The FAA wants to discourage illegal operations and improve safety by regulating the types of Drone operators that are legally allowed to share the airspace.

The Section 333 Exemption process is a necessary requirement for any Drone operator looking to use their Drone for non-recreational purposes (to make money).  Overall, it is called an “exemption” because the petition asks the FAA for relief from the requirements of current manned-aircraft requirements and regulation.

Has My Drone Brand Previously Been Approved by the FAA? 

The FAA provides a list of Section 333 granted petitions on its' website.  The list continues to be updated as new petitions are granted.  You can view the list here.

If you have a question about whether your specific Drone model will be approved for use for non-recreational operation by the FAA, we can help you find out.   

Where Can I Fly My Drone? 

         A.  Recreational Use

Once your Drone is registered for use hobby or recreation, at a minimum, the FAA has established the following guidelines to follow regarding where you cannot fly your Drone:

• Cannot fly below 400 feet altitude. • Must keep your unmanned aircraft in sight at all times. • Never fly near manned aircraft, especially near airports. • Never fly over groups of people, stadiums or sporting events. • Never fly near emergency response efforts.

In addition to these basic requirements from the FAA, you must also be aware of any state and local laws and ordinances preventing you from operating and flying your Drone over private property.

Some Drone companies have even developed technology that is incorporated into the Drone hardware which helps you to avoid inadvertent flight near locations that are off-limits.  Of course, this technology does not replace your requirement to be consistently aware of local laws and ordinances banning flight.

If you have questions about where you can and cannot fly in Phoenix, Scottsdale, Paradise Valley, Tempe, Glendale, and other Arizona cities, we can help.

B.  Commercial Use

We are your Arizona Drone Law resource, and can help you to file a petition for a Section 333 Exemption.  Once your petition is granted, the FAA will provide a letter to you which says that you are allowed to fly your Drone for business, as long as you follow the Conditions and Limitations it will outline in the letter.

The Conditions and Limitations are very important to understand, and must be followed, in order to avoid immediate suspension or cancellation of the exemption.  The following list is not the complete list of Conditions and Limitations but does give a general overview of what you can expect when you receive your letter:

•       Restricted to operate only the Drone model you specified in your petition
•       Cannot fly your Drone faster than 100 miles per hour
•       Must fly no higher than 400'
•       Must fly within eyesight at all times
•       May not fly at night
•       May not fly within 5 nautical miles of an airport
•       May not fly less than 500 feet below or less than 2,000 feet horizontally from a cloud
•       Must have enough power to fly for at least 5 minutes
•       Must not interfere with any manned aircraft
•       All operations shall be conducted over private or controlled-access property with permission from the property owner/controller or authorized representative
•       Flight must be conducted at least 500 feet from all nonparticipating persons, vessels, vehicles, and structures unless

o   Barriers or structures are present that sufficiently protect nonparticipating persons from the UA and/or debris in the event of an accident. The operator must ensure that nonparticipating persons remain under such protection. If a situation arises where nonparticipating persons leave such protection and are within 500 feet of the UA, flight operations must cease immediately in a manner ensuring the safety of nonparticipating persons; and

o   The owner/controller of any vessels, vehicles or structures has granted permission for operating closer to those objects and the PIC has made a safety assessment of the risk of operating closer to those objects and determined that it does not present an undue hazard.

Additionally, Drone operators in Arizona must be aware of local ordinances and laws prohibiting or limiting Drone flight.  For example, the City of Paradise Valley has become the first jurisdiction in Arizona to regulate the use of Drones.  If you are looking to using a Drone for commercial purposes in Paradise Valley, you must register online, and can be done on the same day that you want to use it.

Our law firm is equipped to help you interpret these rules.  The plain meanings of many of the words used in the Conditions and Limitations can be the subject of debate, and can be confusing.  We will help you to stay legally compliant when you fly. 

Can I Use My Drone for My Real Estate Brokerage Business? 

The FAA makes public the Section 333 Exemptions which have been both granted and still pending.  Some Drone operators are real estate brokers who seek to use their Drone for their real estate business.  Check out this link, which gives a visual of the granted petitions for different types of uses – including for real estate.

The FAA has advised prospective Drone operators who seek to use their Drone for business purposes, to allow for at least 4 months from the time of petition submittal until the FAA decides whether the petition will be granted or denied.   It is worth hiring a legal team who can make the best arguments needed on your behalf to give your petition the best chance of being granted.  Our firm has the unique knowledge and expertise you will need to navigate this legal framework of petitioning the FAA for a 333 Exemption and ensuring you are legally operating within local and state laws.

More information about Drones and real estate is available here.  

Is the FAA Going After People Who Aren't Compliant?

Choosing not to register your recreational Drone is not advised, and is not a joking matter.  The FAA warns that the failure to register an aircraft may be result in regulatory and criminal sanctions.  Further, the FAA may assess civil penalties up to $27,500.  Additionally, criminal penalties include fines of up to $250,000 and/or 3 years in jail!

To be sure that the FAA is not taking unregistered Drone operations lightly, SkyPan International was recently slapped with a $1.9 million civil penalty from the FAA for unregistered commercial Drone flight.

The FAA's civil penalty letter alleged that SkyPan conducted 65 unauthorized aerial photography flights in airspace over New York City and Chicago.  Yet, SkyPan maintains that it has done nothing wrong:

“SkyPan has been conducting aerial photography above private property in urban areas for 27 years in full compliance with published FAA regulations. SkyPan is fully insured and proud of its impeccable record of protecting the public's safety, security and privacy.” 

Nonetheless, if you choose not to register nor seek a 333 Exemption, you may be at risk.  The FAA could send you cease and desist letters letting you know that you are in violation and that you must immediately stop operations.  If you continue operating, you will get fined.  If you have received a cease and desist letter, or want to avoid receiving one, our firm can help you to become legally compliant and to stay legally compliant.    

Why Would I Need Drone Insurance?

The FAA estimated that 30,000 commercial and recreational drones will be in flight in the U.S. by 2020.  Recently, Munich Reinsurance America asked risk managers at the 2015 Risk and Insurance Management Society Conference, what they see as the greatest risk of using drones for business purposes:

•       “Invasion of Privacy” issues according to 69% of the risk managers surveyed
•       “Inadequate Insurance” (12%)
•       “Personal Injury” (11%)
•       “Property Damage” (8%)

Trespass onto the land of others should also emerge as another important legal issues real estate brokers and agents should be aware of.  As more and more Drones fill the skies, the risk of personal injury and property damage will likely increase.  Additionally, if you are seeking to operate a Drone for your business, you want to make sure that if an accident does occur, you will be protected. 

Resources

1. Here is a Drone buying guide (which I am told is web accessible for ADA) https://buythebestdrone.com/drone-safety/

2.  Excellent blog on Drones (beginner's guide to flying drones)

Do I need a Law Firm?

Our law firm will help you navigate the complexities of registering your Drone and getting permission from the FAA fly your Drone for recreation or for commercial purposes (such as for real estate sellers of all types, even those who sell “business opportunities” may want to seek a permit for some types of properties (for example gas stations, car washes, truck stops and grocery stores).

Our firm can represent Public/Government Entities, hobbyists, businesses, private universities, and entrepreneurs – including real estate agents and brokers.  If you want to fly your Drone for commercial purposes (to make money), you need to file a petition for a section 333 exemption with the FAA as soon as possible.   Other law firms may charge very high fees (upwards of $8,000) and won't be able to provide the quality and attention you need to get flying fast.  Give us a call and we will discuss the best strategy to accomplishing your goals.

Our firm can also help you if you were a victim of a crash, personal injury, and property damage resulting from the crash.  Especially if an insurance company is failing to pay benefits for Drone injuries or proeprty damages under the terms of an insurance policy in Bad Faith.  Also, if you are facing a civil penalty from the FAA for operating your Drone without registering, give us a call to assess your situation.

Attorney Steve Vondran is an experienced real estate, IP and business lawyer.  We offer a free initial consultation at (877) 276-5084.  Check out our website at FederalDroneLawyer.com.  If you need help protecting your Drone footage with Copyright protection (or handling drone video infringement cases), we can also help.  We offer a contingency fee based copyright recovery service for photo, video, software, jewelry, computer fonts, books and other creative content.