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Commentary: The sky’s the limit – if you can get your drone off the ground

Unmanned aircraft systems, also commonly referred to as drones, are appearing everywhere.

They were recently used to capture aerial photos of extreme sports athletes at the 2015 Winter X Games (legally), and one recently dropped onto the lawn at the White House (illegally). Meanwhile, CNN was recently authorized to explore how this cutting-edge technology can be harnessed in media and journalism.

Businesses of all sizes, in a wide variety of industries, are beginning to realize the potential commercial value of this rapidly advancing technology – the sky’s the limit. Think in terms of delivery and retail seeking a competitive advantage (aerial package delivery), a new revenue source for events (licensing media content from aerial footage of a race or public event), or an evolution of traditional industries (photography, journalism, development, land surveying, agriculture).

Drones in real estate

For real estate users particularly – Realtors, surveyors, developers and appraisers – UAS have the potential to improve business efficiency, enhance marketing, or to expand initiatives that affect the bottom line.

Residential and commercial buyer agents could use UAS to preview property, while listing agents and marketing agencies could use UAS to provide compelling listing and marketing images that help identify features and landscape including lakefront, acreage, outbuildings and proximity to parks/amenities.

Developers, banks, appraisers and title companies could deploy UAS to track the path of development, monitor construction progress and review easements or encroachments that are not easy to identify from the ground.

Most commercial users grounded

Unfortunately, most commercial users are grounded, unless they have received special permission from the Federal Aviation Administration. While the list of authorized users is growing, at the time of this writing, fewer than 20 commercial (Section 333) exemptions have been granted, nationally.

The first real estate company in the country to obtain permission to use UAS for real estate photography is a company in Arizona (Douglas Trudeau with Tierra Antigua Realty). Consequently, real estate organizations and companies that are using UAS technology for real estate photography are likely doing so unlawfully.

The fact that the commercial use of UAS is currently banned unless special authorization has been obtained should not deter you from considering whether and how your business should harness the power of this emerging technology.

Instead, you should focus on the timeline in which you’d like to be able to use UAS for your business. If you don’t foresee a need or desire to use the technology commercially in the near term, you could certainly wait to see what uses the FAA might authorize within their future regulations. Perhaps state laws will advance in the interim, offering more definition.

The FAA released proposed regulations Sunday. But most observers estimate that the rulemaking will not be completed any earlier than 2017.

Meanwhile, many states have sprung to action, crafting state law to address various parameters pertaining to individual privacy, public safety and law enforcement. Even recreational and hobby users need to be aware of and comply with existing FAA regulations, as well as public safety, privacy and trespass laws that are not specific to UAS. A broad overview of considerations is contained within the “Know Before you Fly” guidelines.

Ultimately, for those users who would like to get UAS off the ground to pursue a commercial purpose sooner, rather than later, they will need to work within the existing regulatory and legal framework. Specifically, they should seek the advice of counsel to determine whether they might be well-positioned to obtain a Special Airworthiness Certificate, a Certificate of Authorization or a Section 333 Exemption. The 333 Exemption is currently the best route for business-users to pursue.

Section 333 Exemptions have a 90-day public comment period, with several other technical requirements, so you’re not likely to obtain permission to use your UAS commercially without planning ahead. However, by identifying an appropriate business purpose, understanding the parameters in which UAS may be lawfully operated, and by working with experienced legal counsel to navigate the process, you may be able to help your business utilize UAS well in advance of the competition.

Brad Boyd is an attorney with Eden Prairie, Minnesota-based Fafinski Mark & Johnson, whose practice includes business and corporate advising with a real estate overlay. Contact Brad at brad.boyd@fmjlaw.com. A version of this column originally appeared in Finance and Commerce (Minneapolis, Minnesota), sister publication to The Daily Record.

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