Colorado Association of Realtors

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1 Colorado Association of Realtors Drones in the Real Estate Industry What You Need to Know Tom Dougherty Lewis Roca Rothgerber LLP

2 Overview 1. Introduction to Unmanned Aircraft Systems (UAS) 2. Federal Law and Regulations 3. Real Estate Industry Uses of UAS 4. Legal Issues 2015 LEWIS ROCA ROTHGERBER Page 2

3 Technology Focus is not on large, military UAS 2015 LEWIS ROCA ROTHGERBER Page 3

4 Technology Focus is on small, civilian UAS 2015 LEWIS ROCA ROTHGERBER Page 4

5 Terminology Unmanned Aircraft System (UAS) Unmanned Aerial Vehicle (UAV) Unpiloted Aerial Vehicle (UAV) Remotely Piloted Vehicle (RPV) Remotely Piloted Aircraft (RPA) Drone 2015 LEWIS ROCA ROTHGERBER Page 5

6 Why is This Important? UAS are no longer limited to military and government uses Wide range of civilian and commercial uses Advances in UAS technology and sensors Strong market growth predicted Regulatory framework is developing to enable expanded use Legal issues to be addressed 2015 LEWIS ROCA ROTHGERBER Page 6

7 Federal Law and Regulations Background UAS are aircraft under federal law and regulated by FAA (49 U.S.C (a)(6), 14 C.F.R. 1.1) Huerta v. Pirker (NTSB Docket No. CP-217, November 18, 2014) [N]o person may operate a UAS in the National Airspace System Without specific authority. For UAS operating as civil aircraft the authority is special airworthiness certificates. (FAA Notice No , Policy Statement, Unmanned Aircraft Operations in the National Airspace System, February 13, 2007, Docket No. FAA ) 2015 LEWIS ROCA ROTHGERBER Page 7

8 Federal Law and Regulations Model Aircraft 2012 FAA Modernization and Reform Act, Section 336, Special Rule for Model Aircraft UA is flown strictly for hobby or recreational use UA is operated consistent with community-based safety guidelines UA can weigh no more than 55 pounds unless approved by a community-based organization Cannot operate UA within 5 miles of airport without prior notice to airport and control tower UA must remain below 400 feet UA must be flown within visual line of sight of the operator at all times UA must give way to manned aircraft 2015 LEWIS ROCA ROTHGERBER Page 8

9 Federal Law and Regulations Civil Operations 2012 FAA Modernization and Reform Act, Sections , Unmanned Aircraft Systems Sec. 332(a)(1)-(3): FAA to develop comprehensive plan for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, Comprehensive Plan issued September, Sec. 332(a)(5): FAA to develop a 5-year roadmap for the introduction of civil unmanned aircraft systems into the national airspace system, and shall update the roadmap annually First UAS Roadmap issued in 2013 but has not been updated Sec. 332(b): FAA to issue final rule to allow civil operations of small UAS within 18 months of Comprehensive Plan however, NPRM cites to Sec. 333 as authority for rulemaking Sec. 332(c): FAA to establish six UAS test ranges (AK, ND, NV, NY, TX, VA) Sec. 333: FAA to determine if certain UAS may operate safely in national airspace system before completion of the Comprehensive Plan and rulemaking 2015 LEWIS ROCA ROTHGERBER Page 9

market survey purposes Restricted Category: for special purposes or a type

10 Federal Law and Regulations Civil Operations Special Airworthiness Certificate Experimental Category: primarily for R&D, crew training, and market survey purposes Restricted Category: for special purposes or a type certificate for production of a UAS Section 333 Exemption 2015 LEWIS ROCA ROTHGERBER Page 10

11 Federal Law and Regulations Section 333 Exemptions Section 333 grants the Secretary of Transportation the authority to determine whether an airworthiness certificate is necessary for a UAS to operate in the national airspace system. FAA is using this authority to make case-by-case determinations with respect to specific proposed UAS operations prior to adoption of the final small UAS rules. Small number of exemptions issued in the first three years following 2012 FMAR As of May 28, 2015, 479 total exemptions granted Exemptions granted to companies and individuals in industries including: agriculture education movie & TV filming electric utilities oil & gas construction search & rescue insurance surveying real estate disaster response telecommunications news media aerial photography mining renewable energy railroad 2015 LEWIS ROCA ROTHGERBER Page 11

12 Federal Law and Regulations Section 333 Exemptions Petitions for Exemption must include: Name and address of petitioner Identification of the specific sections of the Federal Aviation Regulations for which an exemption is sought Description of the relief sought by exemption and why How the requested exemption will benefit the public as a whole Explanation of why the exemption would not harm public safety or would provide a level of safety equivalent to the existing rule Additional supporting information regarding the design and operational characteristics of the specific UAS to be used, UAS operating procedures, qualifications of the personnel that will operate the UAS, the intended UAS operations and operational area Summary of Exemption request for publication in the Federal Register Petition should be submitted at least 120 days before intended use 2015 LEWIS ROCA ROTHGERBER Page 12

13 Federal Law and Regulations - Section 333 Exemptions Exemptions granted under Section 333 will typically address airworthiness certification for the specific UAS identified in the Petition, as well as applicable conditions and limitations on UAS operations. Most Exemptions have included the following conditions and limitations, among others: operations are limited to the specific UAS identified UA, including any payload, must weigh less than 55 pounds UA may not be operated at a speed exceeding 100 MPH (87 knots) UA must be operated at an altitude of no more than 400 feet AGL UA must be operated within the unaided, visual line of sight (VLOS) of the operator at all times UAS operations must utilize a visual observer who is able to communicate with the operator at all times, and UA must be operated within the unaided VLOS of the operator and visual observer at all times 2015 LEWIS ROCA ROTHGERBER Page 13

14 Federal Law and Regulations Section 333 Exemptions, cont d UAS operations may not be conducted at night UAS operations may not be conducted within 5 nautical miles of an airport If the UA loses communications with the operator or loses its GPS signal, it must return to a predetermined location UA must remain clear of manned aircraft at all times UAS may not be operated from a moving vehicle UA operations must remain at least 500 feet from all nonparticipating persons, vessels, vehicles, and structures All operations must be conducted over private property or controlled access property UAS operator must hold an ATP, commercial, private, recreational, or sport pilot certification, and must hold a current FAA medical certificate or valid US driver s license 2015 LEWIS ROCA ROTHGERBER Page 14

15 Federal Law and Regulations Certificate of Waiver or Authorization (COA) COA is required in addition to Section 333 Exemption; applied for following grant of exemption COA serves to inform FAA Air Traffic Control facilities of proposed UAS operations and to coordination UAS operations with other airspace uses COA Application requires information regarding: name and address of applicant UAS type, registration, and performance characteristics the planned UAS operation, operational location, and relevant airspace classification air traffic communications procedures to be followed in the event of a loss of UAS communications/control visual observer responsibilities 2015 LEWIS ROCA ROTHGERBER Page 15

16 Federal Law and Regulations Blanket COA As of March 23, 2015, FAA will automatically grant a "blanket" COA for flights at or below 200 feet to UAS operators having a Section 333 exemption, provided the aircraft weighs less than 55 pounds, operates during the day only and under Visual Flight Rules (VFR) conditions, within VLOS of the operator, and remains specified distances away from airports or heliports. If UAS operations outside of Blanket COA parameters are intended, then a separate COA is required LEWIS ROCA ROTHGERBER Page 16

17 Federal Law and Regulations Proposed Small UAS Rules Published February 23, 2015 Similar to and builds upon Model Aircraft Rules and Section 333 Exemptions Major Provisions of Proposed Rules: UA must weigh less than 55 lbs. UA must remain within VLOS of the operator or visual observer at all times Operator must be able to see UA with vision unaided by any devices UA may not operate over any persons not directly involved in the operation UA may only operate in daylight hours May use visual observer but not required Maximum airspeed of 100 mph (87 knots) Maximum altitude of 500 feet above ground level Operator need not be licensed pilot but must be at least 17 years of age and obtain FAA UAS certification No careless or reckless operations 2015 LEWIS ROCA ROTHGERBER Page 17

18 Federal Law and Regulations Proposed Small UAS Rules Overview of proposed rules: Complete proposed rules: _joint_signature.pdf 2015 LEWIS ROCA ROTHGERBER Page 18

19 Federal Law and Regulations Proposed Small UAS Rules More than 4,500 comments received during public comment period (ended April 24, 2015) Many comments focused on operational aspects of proposed rules: VLOS, no autonomous operations, daytime flights only, operator qualifications, etc. National Association of Realtors comments Notice to bystanders Operator Training VLOS/BVLOS communications between operators and visual observer micro UAS Final small UAS rules not expected until LEWIS ROCA ROTHGERBER Page 19

20 UAS in the Real Estate Industry Ready for Takeoff? Real estate professionals among the first persons recognizing commercial value of UAS. Early use led to some problems January, 2012 warning from LAPD to real estate agents using UAS July, 2014 FAA subpoenas to NY real estate brokerages believed to be using UAS 2015 LEWIS ROCA ROTHGERBER Page 20

21 UAS in the Real Estate Industry Ready for Takeoff? National Association of Realtors and numerous real estate professionals have been actively involved in the UAS industry and the FAA regulatory process Real estate industry has advocated for expedited UAS regulations that allow commercial use safely and affordably while respecting privacy concerns The potential of using UAV technology to collect images for use in real estate is also a game-changer for the real estate industry. (National Association of Realtors Letter to FAA Director Michael P. Huerta, September 23, 2014) 2015 LEWIS ROCA ROTHGERBER Page 21

22 UAS in the Real Estate Industry Benefits Provide 360 o view of the property Provide a sense of neighborhood Provide holistic and detailed view of complex commercial properties Provide comprehensive information for large undeveloped properties Cost-effective Time-saving Safety 2015 LEWIS ROCA ROTHGERBER Page 22

23 UAS in the Real Estate Industry NAR Policy Statement The National Association of REALTORS advises members that the use of unmanned aerial vehicles for real estate marketing is currently prohibited by the Federal Aviation Administration. Such prohibited use of unmanned aerial vehicles may lead to the assessment of substantial fines and penalties. The National Association of REALTORS supports efforts to create new federal regulations to allow for the future commercial use of unmanned aerial vehicle technology by the real estate industry. The National Association of REALTORS is committed to working with the Federal Aviation Administration, and any other relevant federal agencies, during the regulatory approval process. The National Association of REALTORS will continue its ongoing efforts to educate REALTORS about the current and future regulatory structure for the safe and responsible Operation of unmanned aerial vehicles. Approved by the NAR Board of Directors November 10, LEWIS ROCA ROTHGERBER Page 23

UAS in the Real Estate Industry Section 333 Exemptions Douglas Trudeau, Tierra Antigua Realty, Tucson, AZ First Real Estate Professional to obtain waiver for

24 UAS in the Real Estate Industry Section 333 Exemptions Douglas Trudeau, Tierra Antigua Realty, Tucson, AZ First Real Estate Professional to obtain waiver for commercial UAS operations As of May 28, 2015, at least 55 Section 333 exemptions granted to UAS users for real estate-related purposes 2015 LEWIS ROCA ROTHGERBER Page 24

25 UAS in the Real Estate Industry Looking Ahead Know Before You Fly Safety and Educational Campaign B4UFLY app FAA Pathfinder Program NAR Participation in FAA Beyond Visual Line of Sight Working Group Final Small UAS Rules Further Technology Developments Evolving Federal, State and Local Legislation Commercial UAS Modernization Act (S.1314) 2015 LEWIS ROCA ROTHGERBER Page 25

26 Legal Issues Federal Regulations Fundamental requirement - [N]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another. (14 CFR 91.13(a)) Development and implementation of an FAA-compliant UAS program Open question as to whether and to what extent federal regulations preempt state and local regulation 2015 LEWIS ROCA ROTHGERBER Page 26

Legal Issues State Law State UAS-related legislation tends to focus on privacy, property rights and law enforcement uses According to the National Conference of State Legislatures: As of

27 Legal Issues State Law State UAS-related legislation tends to focus on privacy, property rights and law enforcement uses According to the National Conference of State Legislatures: As of December, 2014, 49 states have considered UAS-related bills and 21 states have enacted some form of UAS law In 2015, 44 states considered 148 bills related to UAS 2015 LEWIS ROCA ROTHGERBER Page 27

28 Legal Issues Colorado Colorado Legislation SB15-59, Sen. Newell (law enforcement use) HB (Rep. Lawrence)(initially focused on trespass and harassment, amended to be technology neutral and creates offense of criminal invasion of privacy by use of a device) Colorado Regulations CPW Regulation: It shall be unlawful to use a drone to look for, scout, or detect wildlife as an aid in the hunting or taking of wildlife. Local Government Ordinances Deer Trail, CO: 2014 attempt to authorize drone hunting Other? 2015 LEWIS ROCA ROTHGERBER Page 28

Legal Issues Airspace and Property Rights UAS operations present possible issues related to takings, trespass, and nuisance Generally well-developed body of law with regard

29 Legal Issues Airspace and Property Rights UAS operations present possible issues related to takings, trespass, and nuisance Generally well-developed body of law with regard to these issues in the context of manned aircraft Analyses of similar claims related to UAS operations will likely build on these precedents 2015 LEWIS ROCA ROTHGERBER Page 29

30 Legal Issues Privacy and Data Collection FAA has stated that privacy issues are beyond the scope of the present small UAS rulemaking Electronic Privacy Information Center v. FAA, U.S. Dist. Ct. D.C. Cir., Case No (March 31, 2015) Presidential Memorandum: Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems (February 15, 2015) Directed the National Telecommunications and Information Administration (NTIA) to undertake a multi-stakeholder process to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private UAS use Comment period closed April 20, 2015 NAR comments focused on development of best practices related to transparency, accountability, and notice 2015 LEWIS ROCA ROTHGERBER Page 30

31 What You Need to Know Commercial UAS operations are currently prohibited without FAA approval Safety of other aircraft and persons is the main priority Respect the property rights and privacy of other persons Federal, state and local laws are evolving stay informed! Think about insurance Have a Plan business purpose and regulatory compliance 2015 LEWIS ROCA ROTHGERBER Page 31

32 Questions? Feel free to contact me: Tom Dougherty Lewis Roca Rothgerber LLP LEWIS ROCA ROTHGERBER Page 32

FAA Unmanned Aircraft Systems (UAS)

FAA Unmanned Aircraft Systems (UAS) Overview: Proposed Small UAS Rule Presented To: Small Business Aviation Safety Roundtable Presented By: Mark Bury, Assistant Chief Counsel, Regulations Division of the