FAA Intimidates Drone Photographers

FAA Intimidates Coldwell Banker And Other Realtors Into Shunning Drone Photography

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Gregory S. McNeal Contributor

I cover law and policy with a focus on security, technology and crime.

For months, the Federal Aviation Administration (FAA) has been investigating realtors who use drones to film their properties.  Now, Forbes has learned that the FAA’s investigations have succeeded in intimidating NRT —the nation’s largest residential real estate brokerage company — into advising their members to not only cease flying drones as part of their work, but to also cease using drone footage.

This is a troubling development in an ongoing saga over the FAA’s rules which punish the safe commercial use of drones.  Currently, the FAA does not prohibit the use of drones for a hobby — flying over your home and taking pictures of it for fun is allowed, but because real estate drones take pictures for a commercial purpose, the FAA prohibits their use.

NRT is a big player in this space, the company owns and operates companies in more than 40 of the 100 largest metropolitan areas in the United States.  The company had more than 42,000 agents in 2013 and closed more than 320,000 sales.  Their decision to prohibit the use of drone footage will have a chilling impact on thousands of realtors, and may set back efforts to convince the FAA to allow the safe use of drones for commercial filming.  If people can’t see the value the technology provides, it will be much easier for the FAA to prohibit the use of drones in commercial settings.

But, while the use of drones for commercial purposes is prohibited by the FAA, the use of images or video from drones is not prohibited by the agency which only has jurisdiction over air space, not over the use of footage.  Embedded below is an example of real estate video footage, the use of this video by anyone is simply not prohibited by FAA regulations — the agency only has authority to sanction the operator of the drone for their commercial operation.  The commercial ban is no doubt an absurd rule, but that doesn’t mean companies should make it more absurd by prohibiting the use of the footage.

Despite the clear legality of using images and videos from drones, Bob McCauley and Mark Daaleman, attorneys with Coldwell Banker Preferred, wrote a letter (obtained by Forbes) in which they specifically mention the FAA’s enforcement tactics and concerns with drones, calling the agency’s stance “aggressive”:

The FAA continues to take an aggressive stance regarding the use of drones specifically for real estate marketing purposes, even indicating that the agency considers the use of drone aircraft by or on behalf of real estate agents to be commercial in nature. The FAA has indicated that it is actively investigating suspected violations, a position that appears to be verified by media reports of the recent subpoena of drone-related records from a New York area real estate company and its photography vendor. The subpoena demanded documentation as part of the agency’s inquiry into the growing and still unpermitted practice of using unmanned aircraft to take photos of properties.

In light of those enforcement actions, NRT issued the following statement to its members (bold in original):

Currently the FAA has taken the position that the agency has not approved the commercial use of photography drones by Realtors or by vendors who may seek to provide drone photography services to Realtors. As a result, until the FAA issues clearly defined rules, our companies in the Northeast and Eastern Seaboard regions will not be procuring drone photography from any vendor, nor will we process and distribute any drone photography provided to the company by an affiliated sales associate.

The attorneys clearly recognize that the FAA has prohibited the use of drones, not the use of images, yet they nonetheless are directing their members to not use images derived from drones.  McCauley and Daaleman even directed sales associates affiliated with local operating companies “not to seek drone photography on their own at this time as, pursuant to the provisions of the Coldwell Banker Independent Contractor Agreement, they may be held responsible for all fines, penalties, costs and fees related to the use of that photography.”

The NRT letter is so sweeping that a homeowner who filmed their own house with a drone for fun, might be told by their realtor that they could not use their photos or videos in their own home listing.  It’s not clear why NRT would want to issue such a sweeping restriction on the use of images.

This example provides one more reason for commercial users and prospective users of drones to comment on FAA regulations.