November 19-December 2, 2014 —
COLORADO REAL ESTATE JOURNAL
— Page 11AA
Spotlight
“F
or all of human
history our
perspective has
basically been stuck at eye-level
and now for the first time in
history we can see the world
the way the birds do.” – Chris
Anderson, 3D Robotics
Professional aerial photography
has been used in commercial
real estate for years, yet primarily
reserved for only the largest of
firms and clients with substantial
investment capital able to go
to such expense. But the tides
have changed, due to the advent
of unmanned aircraft systems
(UAS).
In today’s smartphone culture
with the associated economies of
scale, high-quality aerial imaging
is now possible and affordable
to the wider consuming public.
Modern UAS use the same GPS
modules, accelerometers, gyros
and processors as those used in
smartphones. Advancements in
battery technology, for use in
smartphones and tablets, have
advanced UAS’ operational
performance.
Today UAS are literally
everywhere, and the commercial
real estate industry in particular
has seen an explosion in
their use. Due their small
size and often superior flight
performance characteristics,
UAS are able to capture images
and videos of properties taken
from unprecedented locations
and angles and at closer range
and with better precision than
manned aircraft. As a result, a
higher-quality product is obtained
at a reduced cost, benefiting
commercial firms in both the
development and marketing of
their projects. Improved data
collection through the use of
UAS further has enabled ever-
more sophisticated efforts in 3-D
modeling and virtual building.
While there are many
advantages available to the UAS
user leading to their increasing
popularity, the resulting
predicament is a technological
breakthrough that has outpaced
the law. As it currently stands, UAS
cannot be used commercially
without the specific authorization
of the Federal Aviation
Administration (FAA). 72 Fed.
Reg. 6689 (FAA, Notice 07-01).
Recognizing the policy gap,
Congress enacted the FAA
Modernization and Reform Act
of 2012 (FMRA), which mandates
the FAA to safely integrate
UAS into the national airspace
system by September 30, 2015.
However, the FAA is behind
schedule. While rules governing
small UAS weighing less than 55
pounds are expected to be out
for public comment by the end
of 2014, remaining UAS rules will
likely not be out for comment
until, at the earliest, 2016 and
implemented in 2018.
It is worth noting that under
the FMRA Section 336
(Special
Rule for Model Aircraft),
Congress
exempted from regulation model
aircraft (recreationally used UAS
weighing less than 55 pounds)
as long as they fly below 400 feet,
remain within the visual line of
sight of the operator and clear of
manned aircraft, and notification
is provide when within five miles
of an airport. In June, the FAA
interpreted the Special Rule to
apply only to “hobby” use, and
provided a specific real estate
example to illustrate the hobby/
commercial divide: “Taking
photographs with a model aircraft
for personal use” is hobby, while
“A Realtor using a model aircraft
to photograph a property that
he is trying to sell and using the
photos in the property’s real
estate listing” is commercial, and
therefore subject to regulation.
(Interpretation of Special Rule
for Model Aircraft, 79 Fed. Reg.
36,172 (June 2014)).
So where does that leave
commercial real estate between
now and when the FAA provides
UAS rules years down the road?
Two options are available: the
first is to obtain a civil Certificate
of Authorization. Second is
to petition for exemption
from certain Federal Aviation
Regulations under the FMRA,
Section 333
(Special Rules for
Certain Unmanned Aircraft
Systems)
(Section 333 petition).
Given that operations under a
COA are limited to a defined
block of airspace and requires
the applicant to establish the
airworthiness of the particular
UAS (e.g., through the FAA
or DOD) (UAS InterimOp
Approval Guidance 08-01 (March
2008)), petitioning the FAA under
Section 333 is the most promising
option. To date, the FAA has
received 111 Section 333 petitions
from a variety of companies across
a range of industries, including
real estate.
Under Section 333, Congress
gave the FAA the flexibility
to expedite operational
authorization of certain UAS
before completion of UAS
rulemaking upon considering
factors such as the UAS’s size,
weight, speed, proximity to
airports and populated areas,
and operation within visual line
of sight. Section 333(b)(1).
For exemption to be granted,
the petitioner must show: 1)
an equivalent level of safety to
those regulations from which the
petitioner is seeking exemption;
and 2) that the grant would be in
the public interest.
Id. See
http://
_
programs/section_333/how_to_
file_a_petition/.
In September, the FAA made
a historic decision, approving
for the first time the commercial
use of UAS through Section 333
petitions to six companies in the
television and movie industry.
See
releases/news_story.
cfm?newsId=17194&
cid=TW251/. Though in granting
these initial petitions the FAA
resolved upon a number of
seemingly onerous guidelines and
restrictions – most imposed by
petitioners themselves – none are
roadblocks to the use of UAS in
commercial real estate. Indeed, in
announcing these initial grants,
the FAA expressly encouraged
additional commercial efforts,
not limited to the “sterile set”
environment offered by the TV/
movie industry. (Similar “sterile
set” conditions can, nonetheless,
be created in the real estate
context as well.) What is clear is
that a petition should be granted
as long as the petitioner can prove
safe operating procedures are in
place. Indeed, Congress mandates
that upon the FAA making a
determination of safety, it “shall
[also] establish requirements for
the safe operation.” See Section
333(c).
The time is ripe for the
commercial real estate industry to
leverage UAS advantages. Firms
that use UAS will not only benefit
from the bird’s-eye perspective
that this new technology offers,
but will be well-positioned to
outpace their competitors and
take a lead in the industry.
Tom Gemmell
Partner, Husch Blackwell LLP,
Chicago
