The Federal Aviation Administration has issued a notice to a Florida drone operator that might give real estate agents who use drones to capture footage of listings another reason to think twice before posting videos to YouTube.
In putting Jayson Hanes on notice, the FAA said it had determined that a complaint it received accusing him of operating a drone for commercial purposes “does appear (to be) valid.”
The FAA said the complaint was based on a video Haynes posted to YouTube.
Hanes has posted many videos of his drone flights on YouTube, including one that he describes as a compilation of 87 clips from over 450 flights conducted in 2014. Hanes’ website, jaysonhanes.com, redirects to his YouTube page, where he describes himself as having “been involved in the hobby of RC Quadcopter flying since early 2013.”
A video Jayson Hanes posted to YouTube shows highlights of more than 450 drone flights he conducted last year.
For the FAA to claim that anyone who publishes drone footage to YouTube is a commercial operator would be a stretch, because that might infringe on their free speech rights, Mashable reports, citing Ryan Calo, an assistant law professor who is co-director of the University of Washington’s Tech Policy Lab.
Calo tells Mashable’s Rex Santos that if Hanes is receiving money from YouTube, that could constitute a “commercial use” of a drone — but that would be an “aggressive interpretation” by the FAA.
YouTube users can “monetize” their videos by allowing them to be preceded by short advertisements. Haynes told Mashable that he has enabled monetization on his videos, but hasn’t actually received any payments.
An FAA spokesman told Inman that the FAA’s goal “is to promote voluntary compliance by educating individual (drone) operators about how they can operate safely under current regulations and laws.” The FAA’s guidance calls for inspectors “to notify someone with a letter and then follow up. The guidance does not include language about advertising. The FAA will look into the matter.”
Drone footage shot by real estate agents to promote a listing would presumably be considered a “commercial use” of a drone, regardless of whether or not it is generating ad revenue on YouTube.
The FAA has long maintained that real estate agents who fly their own drones to take pictures or videos of listings are not engaged in a “hobby or recreation,” meaning that regulators could attempt to take enforcement actions against them.
Until the FAA finalizes rules for commercial drone operators, it maintains that real estate agents and other for-profit drone operators must petition for exemptions under Section 333 of the FAA Modernization and Reform Act of 2012.
The FAA has issued only four real estate-related exemptions to operate drones for commercial purposes, and those mandate that operators be licensed to fly actual airplanes.
Brian Tercero of Keller Williams Realty used a DJI Phantom drone fitted with a GoPro Hero 3 camera to shoot this video of an 800-acre Santa Fe, New Mexico, ranch that’s on the market for $1.15 million.
So far, the FAA has attempted to take enforcement against only one commercial drone operator, who was accused of operating his radio-controlled aircraft in an unsafe manner. The operator, Raphael Pirker, fought the FAA’s proposed $10,000 fine, eventually settling the case for $1,100 without admitting guilt.
In the course of the dispute, the National Transportation Safety Board affirmed the FAA’s position that drones are “aircraft,” and that the agency may take enforcement action against anyone who operates them “in a careless or reckless manner.”
In cases where it has no immediate concerns that a drone is being operated in a careless or reckless manner, the FAA has limited itself to issuing notices to suspected commercial drone operators — and in some cases cease-and-desist letters, examples of which have been collected on websites like Motherboard and dronelawjournal.com.
The FAA’s notice to Hanes suggests that any drone operator who hasn’t obtained special permission from the FAA to pilot drones for “commercial purposes” may find that posting their videos to YouTube generates unwanted attention, and that they should avoid trying to monetize those videos.
The good news for real estate agents is that the FAA has proposed less stringent rules that would govern the commercial use of drones weighing less than 55 pounds, and put an end to the need to apply for exemptions on a case-by-case basis.
