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NAR CODE OF ETHICS

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Drone Ordinances: Current regulations & why cities should not adopt additional

They are the latest and greatest in aerial tech, but as they have gained in popularity and use; so has their abuse. Unmanned aircraft systems (UAS), more commonly referred to as “drones”, are the flying portion of the system, which is operated remotely by a “pilot” via a ground control system and on-board computer with a wireless communications link. The most commonly used drones fall into the “Micro UAS” category, weighing in at 4.4 lbs or less. These Micro UAS have become very popular, as they are relatively affordable and readibly available to consumers. Hence the issue: they are available to any and all consumers and currently do not require any form of licensing for private ownership.

What REALTORS® need to know is that there are current regulations, set forth by the Federal Aviation Administration (FAA) for the use of any UAS (no matter the size). The FAA defines users as either COMMERCIAL or HOBBYIST.

COMMERCIAL USE

When you (or someone you hire) is using drones/UAS to take pictures or videos of a listing, that is considered COMMERCIAL use.

The FAA requires any commercial use UAS operator to have a pilot’s license and a Section 333 waiver. The FAA Modernization and Reform Act of 2012 provided the FAA with the ability to issue Section 333 waivers on a case-by-case basis. In February 2015, the FAA moved forward with a Notice of Proposed Rulemaking on the Operation and Certification of Small Unmanned Aircraft Systems (Rule), with a final rule expected to be issued as soon as August 2016, which should help solidify and expedite the process for commercial users to become certified operators. At the moment, this process is taking more than 120 days for the FAA to respond to petitions due to the influx submitted.

Key Takeaway: Drone use for COMMERCIAL purposes is already federally regulated by the FAA.

HOBBYIST USE

Next point of contention is the improper use of drones by private citizens (HOBBYISTS), who use drones for recreational purposes. The most common and widely voiced complaints being:

  1. Invasion of privacy; being photographed/filmed through windows or in backyards with privacy fencing in place.
  2. Unsafe operation; causing accidents; operating in aircraft airspace, flying into people / objects / traffic.

There are already existing local, state, and federal laws that are applicable for enforcement by police officers, the courts, and the FAA for individual/hobbyist use. Congress has already set forth the guidelines for HOBBYISTS under the FAA’s Interpretation of the Special Rule for Model Aircraft. They are allowed to use small UAS as long as they:

Fly below 400 feet and remain clear of surrounding obstacles
Keep the aircraft within visual line of sight at all times
Remain well clear of and do not interfere with manned aircraft operations
Don’t fly within 5 miles of an airport unless you contact the airport and control tower before flying
Don’t fly near people or stadiums
Don’t fly an aircraft that weighs more than 55 lbs
Don’t be careless or reckless with your unmanned aircraft – you could be fined for endangering people or other aircraft

Although these limitations are not very restrictive, Congress did recognize the potential for recreational users to endanger other aircraft and systems to the NAS (National Airspace System), which is why the rule states, “…nothing in this section shall be construed to limit the authority of the Administrator (the FAA) to pursue enforcement action against persons operating model aircraft who endanger the safety of the national airspace system.” What everyone is awaiting clarification on however, is the FAA’s interpretation and intent on how its enforcement authority will be applied in relation to model aircraft operations. These clarifications on enforcement for drones used by Hobbyists was supposed to have been introduced by the FAA in 2015, but now looks like this will not happen until sometime in 2016.

Key Takeaway: The FAA has enforcement authority over model aircraft as affirmed by the FAA Modernization and Reform Act of 2012.

LOCAL ISSUES & CONSIDERATIONS

Before rushing to create a city ordinance on the regulation of drones, city councils should be aware that federal (FAA) rules already apply to all drone usage, including COMMERCIAL and HOBBYIST use. There are two key items that city councils need to look at when considering a “Drone Ordinance.”

  1. Commercial Use is already heavily regulated by the FAA; therefore there is no need to further restrict and regulate this sector.
  2. Recreational / Hobbyist Use is regulated by the FAA, with interpretation and enforcement clarifications coming soon; if an ordinance is adopted prior to these clarifications being released, it may come into conflict with the enforcement authority of the FAA and will need to be amended or rescinded.

With this issue already being regulated on the federal level, is there really any need to take on the extra burden of creating an ordinance and its associated financial burden and workload for enforcement by municipalities? A better solution may be to work with local law enforcement and city/county attorneys on the interpretations and enforcement of the misuse of drones as it would be applicable to using any tool/device in the execution of a criminal act punishable by existing law such as assault, criminal trespass, or injury to persons or property. Additionally, a community partnership to educate all community owners and operators of drones on the Do’s and Don’ts of Model Aircraft Operations, may be a more practical and effective option.

 

UAS Resources:

Current list of real estate-related Section 333 waiver holders

FAA website: www.faa.gov/uas/

Section 336 of Public Law 112-95 (the FAA Modernization and Reform Act of 2012) (PDF)

Do’s and Don’ts of Model Aircraft Operations (PDF)

Law Enforcement Guidance for Suspected Unauthorized UAS Operations (PDF)

“Know Before You Fly Campaign”, a campaign dedicated to educating prospective UAS users about the safe and responsible operation of UAS: www.knowbeforeyoufly.org/

Department of Transportation: Federal Aviation Administration | Interpretation of the Special rule for Model Aircraft: http://www.faa.gov/uas/media/model_aircraft_spec_rule.pdf

Suzanne Brown

Suzanne Brown is the Community and Government Affairs Director at SAAR.

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