You don’t hear the silent rotors of the 4-armed drone flying above your backyard as you sunbath au natural. The $4k camera, however, records in vivid detail everything you’re doing and streams 1080p video to a videographer in a car more than a mile away. Next thing you know, you are an unwilling YouTube sensation.
You’re driving your car south on Biscayne Boulevard, talking to your office on your Bluetooth microphone when, after a bit of static, the cellphone connection drops. Within a few seconds, cellphone-controlled drones, one out delivering a new 55-inch flat screen television from an online retailer, begin to crash into each other and then fall onto moving cars. Chaos ensues. If you curse the periodic dropped call, just wait until you start seeing dropped drones.
It can also be worse, the Federal Aviation Administration [FAA] reported that, on March 22, 2014, a drone nearly collided with a U.S. Airways flight traveling from Charlotte, North Carolina en route to Tallahassee, Florida.
With the FAA estimating that, once enabling rules are established, “roughly 7,500 commercial sUAS [small Unmanned Aircraft Systems] would be viable at the end of five years.”
On February 15, 2015, the FAA released a summary of the major provisions of its proposed UAS rules (known as Part 107). While a few of the proposed rules are more liberal than anticipated, most follow the historical view of the agency in treating UAS more like private planes than the concept that they represent for the future. Before outlining the proposals, a short history of the FAA’s previous attempts to regulate drones.
The Pirker case was the first challenge to the FAA’s attempt to regulate small unmanned aerial vehicles [UAVs] under existing policies (Administrator v. Pirker, FAA Case No. 2012EA210009, NTSB Docket No. CP-217). Raphael Pirker used a small, remote-controlled model power glider to take aerial photos for advertising purposes at the University of Virginia campus. The FAA alleged that the glider was endangering people on the ground and property on the campus. The FAA cited Pirker for violating a ban on commercial UAS usage, and for operating an unmanned aerial vehicle [UAV] “in a careless and reckless manner,” pursuant to 14 C.F.R. §91.13, putting it under the FAA’s authority to enforce flight safety. Further, the FAA argued that it had authority to regulate the UAV because any device intended for flight is an “aircraft,” including this small UAV. Pirker did not have a pilot’s license and was assessed a civil penalty of $10,000 for violation of a 2007 FAA Policy Statement.
Pirker filed a motion to dismiss, choosing to challenge the violation on grounds that there is no existing FAA regulation governing the operation of model aircraft, and that the FAA’s Policy Statements concerning the operation of UAVs are not binding or enforceable. Further, Pirker argued that the power glider was not an “aircraft” as contemplated by the regulations, and that the FAA had no jurisdiction to regulate model aircraft in airspace below 400 feet (i.e., navigable airspace for manned aircraft).
In a decision issued March 7, 2014, the NTSB judge held that the power glider was not an “aircraft”—rather, it was a small UAV that otherwise qualified as a model aircraft (i.e., an aircraft under 55 pounds, being operated below 400 feet)— even if it was engaged in commercial operations. Further, it was held that the FAA had no authority without properly enacted rules (as opposed to “policy statements”) to regulate this type of drone, whether or not it was being used for commercial purposes. The NTSB judge also pointed out that the FAA had historically treated model aircraft separately from other types of “aircraft,” so its position with respect to Pirker was not consistent with that historical distinction.
The FAA appealed the decision for review by the full National Transportation Safety Board [NTSB]. On November 17, 2014, the NTSB reversed the judge in finding that “[a]n aircraft is ‘any’ ‘device’ that is ‘used for flight in the air’,” and therefore subject to the requirements of 14 C.F.R. §91.13(a) to not operate an aircraft “in a careless or reckless manner so as to endanger the life or property of another.” contrary to § 91.13(a).
Commercial drone operators have been concerned that the FAA will use the ruling to shut down all but governmental drone use and have been lobbying Congress to “open up the skies”. The skies will open up sooner rather than later. The FAA Modernization and Reform Act (Public Law 112-95), required that the FAA come up with a plan for “safe integration” of UAS by September 30, 2015. The newly proposed rules do not eliminate commercial drones but would impose limitations that have been made obsolete by the rapidly advancement of drone technology. A short outline of the more restrictive proposals:
- Visual line-of-sight (VLOS) only; the unmanned aircraft must remain within VLOS of the operator or visual observer and close enough to the operator for the operator to be capable of seeing the aircraft with vision unaided by any device other than corrective lenses. First-person view camera cannot satisfy “see-and-avoid” requirement but can be used as long as requirement is satisfied in other ways.
- Small unmanned aircraft may not operate over any persons not directly involved in the operation.
- Daylight-only operations (official sunrise to official sunset, local time).
- Maximum airspeed of 100 mph (87 knots).
- Maximum altitude of 500 feet above ground level.
- Minimum weather visibility of 3 miles from control station.
- No person may act as an operator or VO for more than one unmanned aircraft operation at one time.
- No careless or reckless operations.
- Requires preflight inspection by the operator.
- Operators would be required to:
- Pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center.
- Be vetted by the Transportation Security Administration.
- Obtain an unmanned aircraft operator certificate with a small UAS rating (like existing pilot airman certificates, never expires).
- Pass a recurrent aeronautical knowledge test every 24 months.
- Be at least 17 years old.
- Make available to the FAA, upon request, the small UAS for inspection or testing, and any associated documents/records required to be kept under the proposed rule.
- Report an accident to the FAA within 10 days of any operation that results in injury or property damage.
- Conduct a preflight inspection, to include specific aircraft and control station systems checks, to ensure the small UAS is safe for operation. FAA airworthiness certification not required.
- Maintain the UAS in condition for safe operation and prior to flight must inspect the UAS to ensure that it is in a condition for safe operation.
- Aircraft Registration required (same requirements that apply to all other aircraft).
- Aircraft markings required (same requirements that apply to all other aircraft). If aircraft is too small to display markings in standard size, then the aircraft simply needs to display markings in the largest practicable manner.
The new rules are similar to exemptions granted by the FAA under its nearly complete ban on commercial use of UASs. Prior exemptions have been limited to newsgathering organizations (most recently, CNN), British Petroleum (for surveying the Alaskan north slope), six movie productions, one construction company, an agricultural producer, and, just this year, to a real estate agent in Tucson, Arizona. CNN’s recent an exemption was issued in conjunction with the Georgia Tech Research Institute to order to test proposed safety rules and protocols for news use. The real estate agent will be helped by the new rules as the 33 limitations imposed by his exemption granted earlier this year were more restrictive than that currently proposed and included:
- Operations were required to be conducted by a pilot possessing at least a private pilot certificate and at least a current third-class medical certificate;
- Prior to operations conducted for the purpose of aerial videography/cinematography and augmenting real estate listing videos (or similar operations), the pilot must have logged a minimum of 25 hours of total time as a UAS rotorcraft pilot including at least 10 hours logged as a UAS pilot with a multi-rotor UAS;
- Flight operations must be conducted at least 500 feet from all nonparticipating persons, vessels, vehicles, and structures unless: barriers or structures are present that sufficiently protect nonparticipating persons (as opposed to the limits of the new rules about flying over a non-participant).
While some of the other exemption limitations may find their way into the FAA’s rules, the FAA has at least attempted to loosen some of its earlier restrictions.
Notwithstanding the more liberal nature of the proposals, US commercial interests have arguments over the rules based on competition from other countries. Amazon has tested drones in Canada and Google in Australia. Testing facilities are already moving out of this country. Many commercial users, such as real estate photographers, delivery companies, and the like, are concerned that they will be left out in the cold with only large companies receiving exemptions. While I believe that no one can really object to the minimum training imposed on drone operators, technology has clearly outstripped the VLOS and daylight limitations.
So, where will drones take us? To infinity and beyond? Or a legal morass? Time will tell, but we may not have to wait long for an answer.
For any questions about drones, new rules, and the impact on the real estate industry, please contact Michael Greene below.
Michael S. Greene, Esq.
ASSOULINE & BERLOWE, P.A.
213 East Sheridan Street, Suite 3
Dania Beach, Florida 33004
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