When National Association of RealtorsⓇ President Chris Polychron recently testified before Congress on the topic of unmanned aerial systems (UAS), he called for a commitment to privacy and personal safety to go hand in hand with the responsible use of drones by the commercial property industry. But the legislative climate around the topic of drones shows anything but clear skies. Federal and state efforts to make rules have been uneven, leading to a bumpy legislative ride.
Take the case of California, whose governor recently came down on the side of drone use and FAA approved commercial users. It was days ago that Governor Jerry Brown vetoed legislation that would have stopped the flying of drones at altitudes lower than 350 feet, sending a somewhat garbled message to potential drone users, including the real estate industry seeking to legally use the aircraft for survey and inspection of commercial property.
As law blog JD Supra writes, the governor’s reasoning was to avoid exposing “the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation.”
The life and death of the California flight-level restriction legislation is an example of a legislative process being played out in several states across the nation. In light of the rapid expansion of the drone industry, lawmakers, at both state and Federal levels, are scrambling to enact legislation governing the use of drones. But as we just learned from Governor Brown’s veto, there is considerable controversy about what to do about flight-level restrictions. Why? Privacy considerations suggest that drones should be as far away as possible, for obvious reasons. Nobody wants to see a drone equipped with high-definition cameras hovering outside one’s window or lurking above what would otherwise be a secluded back yard or vacation spot. Privacy considerations are what motivated the authors of the California bill.
Business Applications vs. Privacy And Safety Concerns
Equally burdensome to real estate business plans that hinge on legal operation of drones is the question of jurisdiction. Does state or federal law apply first? The answer appears confusing even though the FAA seems pretty clear on who’s got the regulatory muscle. The FAA web page “Busting Myths About The FAA And Unmanned Aircraft” says airspace at any height is the domain of the FAA and that any aircraft looking to fly in US airspace needs some form of FAA approval. From the link:
Myth #1: The FAA doesn’t control airspace below 400 feet
Fact—The FAA is responsible for the safety of U.S. airspace from the ground up. This misperception may originate with the idea that manned aircraft generally must stay at least 500 feet above the ground
Section 333 Waivers
The FAA may be petitioned by aspiring drone operators for a waiver called Section 333, which grants authorization for certain unmanned aircraft to perform operations on a case-by-case basis. An FAA pilot’s license is a required piece of such an application. The FAA page for Section 333 exemption applications is here.
August 2014 is the latest self-imposed deadline the FAA has missed in developing comprehensive rules for small commercial UAS. While permission to operate lies in regulatory limbo, a set of industries, including real estate, that could use inexpensive and comprehensive surveys and inspections of property are biding their time while the bureaucratic wheels turn.
“We all agree that the project is taking too long,” Peggy Gilligan, a top FAA safety official, told a congressional House panel in 2014. Here’s hoping the balance between safety, privacy and commercial use is found soon.