Drones & Real Estate Agents

On July 12, 2014, Douglas Trudeau, a Realtor with Tierra Antigua Realty in Tucson, petitioned the Federal Aviation Administration (“FAA”) for an exemption from certain federal regulations to allow him to operate his PHANTOM 2 Vision + quad copter unmanned aircraft system (UAS) or “drone” to conduct aerial videography and cinematography “to enhance academic community awareness for those individuals and companies unfamiliar with the geographical layout of the metro Tucson area and augment real estate listing videos.”

On January 5, 2015, the Federal Aviation Administration (“FAA”) issued a 26-page “Grant of Exemption” to Mr. Trudeau.  Mr. Trudeau’s Grant of Exemption is the first commercial real estate photography regulatory exemption for a UAS.  The FAA’s Grant of Exemption was broken into four different sections of discussion: (1) the UAS; (2) the UAS Pilot in Command (“PIC”); (3) the UAS operating parameters; and (4) Public Interest.

Regarding the UAS, Trudeau represented that he would only operate his UAS in reasonably safe environments that are strictly controlled, are away from power lines, elevated lights, airports and actively populated areas and that he will conduct extensive preflight inspections and protocols, during which safety carries primary importance.  The FAA found that adherence to his proposed operating documents and the conditions and limitations describing the requirements for maintenance, inspection, and record keeping, were sufficient to ensure that safety would not be adversely affected.

Concerning the PIC issues, Trudeau asserted that while private pilots are limited to non-commercial operations, he can achieve an equivalent level of safety as achieved by current regulations because his UAS does not carry any pilots or passengers.  In his petition, Trudeau asserted that regarding operational training, he has flown numerous practice flights in remote areas as a hobbyist simulating flights for future commercial use to gain familiarization with the characteristics of his UAS’ performance under different temperature weather conditions.  Trudeau further stated that he practices computerized simulated flights to maintain adequate skills and response reflex time.  The FAA found that prior to operations the PIC must, at a minimum, hold a private pilot certificate, a third class airman medical certificate, and completed the minimum flight hour and currency requirements as stated in the conditions and limitations of the Grant of Exemption.

The third area that the FAA considered was the UAS operating parameters.  Trudeau provided numerous operating parameters that he would follow such as: operating his UAS below 300 feet and within a radius distance of 1000 feet from the controller to both aid in direct line of sight visual observation and operating the UAS for only 3-7 minutes per flight.  The FAA in its Grant of Exemption went into great detail as to each of the numerous operating parameters that Trudeau must meet to operate his UAS.

Finally, the FAA considered the public interest.  Trudeau, in his petition, asserted that aerial videography for geographical awareness and for real estate marketing has been around for along time through manned fixed wing aircraft and helicopters, but for small business owners, its expense has been cost prohibitive.  Granting this exemption to him would allow him to provide this service at a much lower cost.  Further, he argued that his small UAS will pose no threat to the public given its small size and lack of combustible fuel when compared to larger manned aircraft. Trudeau also states that the operation of his UAS will minimize ecological damage and promote economic growth by providing information to companies looking to relocate or build in the Tucson metro area.  The FAA ruled that the Grant of Exemption is in the public interest.  The enhanced safety and reduced environmental impact achieved using a UAS with the specifications described by Mr. Trudeau and carrying no passengers or crew, rather than a manned aircraft of significantly greater proportions, carrying crew in addition to flammable fuel, gave the FAA good cause to find that the UAS operation enabled by the exemption is in the public interest.

Trudeau’s petition only received five comments after it was published in the Federal Register.  Four trade organizations and one individual submitted comments.  Three trade organizations voiced concern: (1) The Air Line Pilots International (ALPA); (2) the National Agricultural Aviation Association (NAAA), and (3) the United States Hang Gliding & Paragliding Association (USHPA).  Each group expressed its particular concerns about the proposed commercial use.

The Grant of Exemption went on to list thirty-three conditions that Trudeau must meet to operate his UAS for commercial use.  His exemption allows him to fly his UAS to enhance real estate listing videos.  Mr. Trudeau will have to obtain a Certificate of Waiver or Authorization (“COA”) that ensures the airspace for his proposed operation will be safe, and that he has taken proper steps to see and avoid other aircraft.  In addition, his COA must mandate flight rules and timely reporting of any accident or incidents.

Trudeau’s exemption is clearly the start of what is likely to be many, many petitions to the FAA for commercial use of drones.  How the unquestionable increase in commercial drone use will be met by local governments remains to be seen.  Indeed, half of the state governments in the U.S. have already formally considered legislative action to address drone operations.  Around ten states have already enacted legislation regarding drones use.  Because the FAA claims that it regulates all airspace, issues of federal preemption coming up against state “police powers” are likely to arise as well.  This is an exciting new area of law with many, many issues to be considered.

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