InterNACHI’s Drone Law Primer for Home Inspectors

by Nick Gromicko and Mark Cohen, Esq.


INTRODUCTION

Drones are an increasingly popular tool used by home inspectors.  Its applications are numerous:  to inspect a roof, rather than climbing a ladder and walking it; to get a closeup view of the upper exterior, when placing and climbing a ladder to do so may be difficult; and to get an aerial view of the entire property, including foliage, drainage, and fencing. The purpose of this article is to help inspectors understand the legal aspects of using a drone as part of a home inspection.

In 2016, the Federal Aviation Administration (FAA) issued new regulations governing the commercial use of drones. These regulations require any person operating a drone outdoors for a commercial purpose to obtain a Remote Pilot Certificate (RPC), register their drone, and follow certain requirements when operating the drone. Using a drone for a home inspection is a commercial purpose. If you use a drone outdoors as part of a home inspection, you must obtain an RPC and register your drone. 
 



We’ll begin with an overview of drones and the federal rules governing them. We’ll then examine the FAA’s current enforcement posture.  We’ll discuss other laws applicable to drones, and go over a checklist for inspectors who want to use drones as part of their inspections.  We’ll explain how to obtain a RPC and how to register a drone.  Then we’ll focus on the requirements of the new federal regulations.

OVERVIEW

Drones, also known as UAVs or unmanned aerial vehicles, are small unmanned aircraft that are flown both recreationally and commercially. Drones have become increasingly popular in recent years.  In 2016, drone sales in the United States totaled approximately 2.5 million. Of those, 1.9 million were used recreationally, and 600,000 were used commercially.

By 2020, the FAA expects drone sales to reach 7 million:  4.3 for recreational use, and 2.7 for commercial use. The increase in commercial sales reflects the many potential uses of drones, including surveillance, search and rescue, videography, product delivery, agriculture, and home inspections.

The new regulations seek to safely integrate drones into the national airspace system. The regulations are set forth in Part 107 of Title 14 of the Code of Federal Regulations. Most refer to the new regulations simply as Part 107.

PART 107

Part 107 applies to the commercial use of “small unmanned aircraft systems” – those under 55 pounds. All commercially sold drones fit this description, as they weigh well under 55 pounds, with most weighing 3 pounds or less. However, Part 107 does not apply to the recreational or hobby use of drones. Part 101 of Title 14 applies to the recreational use of drones, and requires recreational drone operators to fly their drones within their visual line of sight, and in a way that does not interfere with other aircraft.  Therefore, there is greater regulation of commercial drone operators than recreational drone operators.

A commercial drone operator is anyone not using a drone for a recreational or hobbyist purpose. The FAA defines a recreational or hobby use as flying for enjoyment. Recreational use does not include any operation done for work, business purposes, or for compensation or hire. This means that even if you fly a drone mostly as a hobby, if you fly the drone outdoors during a home inspection, Part 107 applies to your use of the drone in the home inspection.

Part 107 requires anyone operating a drone commercially to obtain a license called a Remote Pilot Certificate (RPC). To obtain an RPC, you must pass a 60-question test on aeronautical knowledge, drone regulations, and drone operations. The test contains many questions similar to those on the test that an applicant for a pilot’s license must take. In addition, commercial drone operators must register any drone used commercially and follow certain requirements when operating the drone.

Many of these requirements are common-sense. For example, a commercial drone operator may not operate multiple drones at one time, or operate a drone while impaired, or when the drone is in an unsafe condition. However, other requirements are less obvious. For example, a commercial drone operator may not fly a drone at night unless the operator applies for and receives an FAA waiver. No person may operate a commercial drone within restricted airspace, such as near an airport, without FAA authorization.

A person operating a drone for commercial purposes must follow these requirements as well:

  1. The operator must not fly the drone faster than a groundspeed of 87 knots (100 miles per hour).
  2. The operator must not fly the drone higher than 400 feet above ground level unless flown within a 400-foot radius of a structure.
  3. The minimum visibility, as observed from the control station, may not be less than 3 statute miles.
  4. The minimum distance from clouds must be no less than 500 feet below a cloud and no less than 2,000 feet horizontally from the cloud.

In addition, the operator must report to the FAA any accident causing serious injury or more than $500 in property damage.  Part 107 also allows operators to petition for an exemption from certain requirements. 

The main takeaway from Part 107 is that it requires any person operating a drone for a commercial purpose to (1) obtain a Remote Pilot Certificate (RPC) and (2) register their drone.

ENFORCEMENT

The FAA enforces federal aviation laws and regulations, including Part 107. Some of the potential civil penalties for Part 107 violations include fines up to $27,500 and/or criminal penalties. Operating a drone recklessly or in a restricted airspace, for example, can result in civil fines and/or criminal penalties. In general, the FAA attempts to educate violators before imposing penalties, but it is not required to do so and may impose civil penalties and/or seek criminal prosecution in egregious circumstances without prior warning.

As of August 2017, the FAA had not released any reports of drone violations under Part 107.  In 2015, before the FAA promulgated Part 107, it released a report of 24 drone operators who were fined for flying drones recklessly or in restricted airspace. Most operators were fined $1,000 or $2,000. However, the FAA can fine drone operators for each separate violation. The FAA fined one commercial drone operator, SkyPan, $1.9 million for repeatedly flying drones in congested airspace over New York City and Chicago. SkyPan settled by paying $200,000.

OTHER LAWS APPLICABLE TO DRONE OPERATORS

State and Local Laws and Regulations

As a commercial drone operator, you must also be aware of any state and local laws regulating the use of drones. As of June 2017, 40 states had passed laws governing drones in some way, some of which impose criminal penalties for violations.  Many local governments are also attempting to regulate drones.  Fearful of a hodgepodge of laws varying from one municipality to the next, some states have passed laws to prevent municipalities from regulating drones. 

However, even in states that don’t allow municipalities to regulate drones, municipalities may still have other ordinances that can apply to the use of drones, such as noise ordinances.  

For more information on state and local drone laws, visit: http://www.ncsl.org/research/transportation/current-unmanned-aircraft-state-law-landscape.aspx

FAA Rules for Specific Geographic Areas

The FAA also has additional rules applicable to specific geographic areas.  For example, in Washington, D.C., you cannot operate a drone within a 15-mile radius of Ronald Reagan Airport unless you obtain FAA authorization. In general, proximity to an airport affects drone operations.  The FAA may impose additional restrictions near larger cities, where there may be many airports and aircraft.  Additionally, federal law prohibits drones in national parks and other federally protected areas. The FAA recommends consulting this airspace map before operating your drone: http://knowbeforeyoufly.org/air-space-map/           

Common Law Principles

In addition to federal, state and local laws and regulations, well-established common law principles may apply to the use of drones.  For instance, flying a drone over someone else’s home may be considered trespass.  Using a drone to take an unauthorized photo may be a violation of their privacy rights.  If the drone makes unreasonable noise, it may be considered a nuisance.

CHECKLIST FOR HOME INSPECTORS USING DRONES

In addition to obtaining a Remote Pilot Certificate and registering each drone you intend to use as part of your home inspection services, InterNACHI® recommends that inspectors using drones do the following:

  1. Check with your insurance carrier to be sure your liability policy covers any injury or damage resulting from your use of a drone.  Also check whether your policy covers damage to your drone.
  2. Modify your inspection agreement to include this clause: “You understand that I may use a drone as part of my inspection.  You give me permission to operate the drone on and above your property.  You agree that if the drone causes injury or property damage through no fault of mine, I am not responsible for the injury or damage.”
  3. If you intend to operate a drone in close proximity to a neighboring home, talk with those homeowners and explain what you intend to do and why.  There have been cases where owners of neighboring homes thought a drone was being used to spy on them and called law enforcement, or fired a weapon at the drone.
  4. Make sure you have your Remote Pilot Certificate and your FAA Certificate of Drone Registration with you before you operate the drone.  InterNACHI® recommends you also keep a copy of the FAA rules with you.  This may be helpful if you are confronted by upset citizens or law enforcement officials.  Some vendors now sell packages that contain these rules and other materials.
  5. Make sure your drone is properly marked in accordance with FAA regulations.
  6. Check local laws to make sure it's lawful to operate a drone.
  7. Make sure the drone is in a condition that's safe for flight operation each time you operate it.
  8. Some inspectors use an app on their smartphone that will alert them to FAA restrictions in specific areas.  To learn more about this app, visit  https://www.faa.gov/uas/where_to_fly/b4ufly/

 

REGISTERING YOUR DRONE

Part 107 requires any commercial drone to be registered with the FAA if it weighs more than 0.55 pounds.  If your drone weighs more than that, follow this link to register your drone: https://registermyuas.faa.gov/.   Drones that weigh less than 0.55 pounds need not be registered because these tend to be what the FAA considers toys, but any drone that a home inspector uses is likely to weight more than 0.55 pounds.  Large drones, those weighing more than 55 pounds, must also be registered, but a different process is required.  Home inspectors will likely use drones that weigh more than 0.55 pounds and less than 55 pounds.

Registration costs $5. You must provide your name, address, and email address. You must also provide the make, model, and serial number (if available) for each drone you intend to fly commercially. After three years, you must renew your registration for any drone used commercially.

U.S. citizens, LLCs whose members are all U.S. citizens, U.S. corporations, corporations doing business in the United States, and permanent residents of the U.S. who are not U.S. citizens all can register drones with the FAA.  Individuals under the age of 13 cannot register a drone.

Different rules apply to foreign nationals and foreign aircraft. A foreign national must apply for a Foreign Aircraft Permit. Similarly, if an aircraft is registered in another country, it cannot be registered in the U.S., and the applicant must apply for a Foreign Aircraft Permit.

As a drone operator within the United States, you can register under 14 CFR Part 47 or Part 48. Part 47 applies to all aircraft in the United States, while Part 48 applies specifically to drones.

After registering a drone online, you must mark the drone to identify that it is registered with the FAA. The registration marking must be:

  • a unique identifier number, typically the registration number;
  • legible and durable, using permanent marking, an engraving, or adhesive label; and
  • visible or accessible.  The number may be enclosed in a compartment only if you can access the compartment without tools.

While operating a drone commercially, you must have your certificate of registration in your possession. This certificate can either be available electronically (on your cellphone or laptop, for example), or on paper. If another person is operating the drone commercially, they too must have the registration certificate. You can email them the certificate or give them the paper certificate.

 


 

OBTAINING A REMOTE PILOT CERTIFICATE (RPC)

The federal license required to lawfully operate a commercial drone is called a Remote Pilot Certificate, but is often referred to simply as a license.  To obtain a Remote Pilot Certificate, you must take and pass the Initial Aeronautical Knowledge Test (IAKT) administered by the FAA, unless you already have a Part 61 pilot certificate. The cost of the test and application is $150.

The IAKT contains 60 multiple-choice questions and takes about two hours to complete. You must score at least 70% to pass. If you do not pass, you may retake the test after 14 days. To pass the test, you will have to study unless you already have extensive knowledge of aeronautical navigation and classifications. You should study for at least five hours a week for one month before taking the IAKT. Once you are ready to take the IAKT, keep in mind a few basic tips that are helpful for any multiple-choice test:

  • Answer every question. The FAA does not subtract points for wrong answers.
  • Eliminate wrong answers first.
  • Pick the answer that's closest to what you think is the right answer. Sometimes there can seem to be more than one right answer. Sometimes there does not appear to be any right answer. Pick the answer that's closest to what you think the right answer is.
  • Use the supplement legend. The FAA provides a supplement with the test. This supplement is necessary to answer some of the questions.
  • Don't spend too much time on difficult questions. Mark the difficult questions so you can return to them after you've read through all the questions and answered all of them.
  • Throughout the test, keep in mind what the FAA wants you to know.
  • Sleep well before the test.
  • Eat nutritious meals the night before and the morning of the test.

If you already have a Part 61 pilot certificate and you have a current flight review, you can take either the IAKT or the FAA Safety Course to obtain a Remote Pilot Certificate. The Safety Course is easier and less costly than the IAKT test.  Visit  https://www.faa.gov/licenses_certificates/.

Requirements for Taking the IAKT

To take the IAKT, you must be at least 16 years old, able to speak, write and understand English, and have proper photo identification. You need not be a U.S. citizen to take the test. There are medical exceptions to the requirement for speaking and writing English. You also cannot have (or have reason to know that you have) a physical or mental condition that would interfere with the safe operation of a drone.

Drug and Alcohol Offenses

If you have a drug or alcohol conviction or refused to submit to an alcohol test, the FAA may deny your application for up to a year after that incident. If you have a Remote Pilot Certificate and are convicted for a drug or alcohol offense, or refuse to submit to an alcohol test, the FAA may suspend or revoke your RPC. 

Where to Take the Test  

You must take the IAKT at an FAA test center. You can find a list of locations and phone numbers here:  https://www.faa.gov/training_testing/testing/media/test_centers.pdf

Cheating

If a person cheats on the IAKT, that person is prohibited from taking the test again for one year.

What to Do After You Pass the Test

After taking and passing the IAKT, apply for the FAA’s Integrated Airman Certification and Rating Application (IACRA) here: https://iacra.faa.gov/IACRA/SelectRoles.aspx. Select “applicant” as your role. Your knowledge test report may not show up in IARCA for up to 48 hours after you take the IAKT. After you submit an online application, the FAA will send you a temporary Remote Pilot Certificate online in IARCA, which is good for 120 calendar days, or until you receive your permanent Remote Pilot Certificate by mail. If you move, you must notify the FAA within 30 days of your new permanent address at http://www.faa.gov.

Recurrent Aeronautical Knowledge Test

After you receive your Remote Pilot Certificate, you must take and pass the Recurrent Aeronautical Knowledge Test (RAKT) every two years to maintain your Remote Pilot Certificate.

           

What Does the IAKT Cover?

Part 107 establishes 12 topics that the IAKT covers. The FAA, which administers the test, has grouped these 12 topics into five more general areas of knowledge. 

The five areas the IAKT test covers include:

  1. Regulations
  2. Airspace Classification and Operating Requirements
  3. Weather
  4. Loading and Performance
  5. Operations


AN IN-DEPTH LOOK AT THE REQUIREMENTS OF PART 107

Part 107 applies to small commercial unmanned aircraft systems within the United States. Part 107 does not apply to air carrier operations or model aircraft, including drones flown for recreational purposes. If Part 107 does not apply to your drone usage (for example, if you are operating a drone indoors or recreationally), then the rest of the rules in Part 107 do not apply to you either.

Part 107 also does not apply to those who obtained Section 333 exemptions. Before the FAA promulgated Part 107, Section 333 exemptions allowed operators to fly drones commercially, so long as the commercial purpose was for “a public benefit.” For example, a Section 333 exemption might be granted for a filmmaker because using a drone to film was safer than flying a plane. Many of the Section 333 exemptions also allowed commercial drone operators to fly drones without airworthiness certificates. However, the FAA now allows operators to fly drones without airworthiness certificates. Since Part 107 was passed, Section 333 exemptions are far less common and have been replaced by the rules of Part 107.

Accident Reporting

You must report any accident that causes serious injury to a person within 10 days to the FAA. A serious injury includes loss of consciousness, broken bones, or lacerations requiring stitches. You must also report any accident causing $500 or more in property damage within 10 days to the FAA. If the accident completely destroys the property, you do not need to report the accident if the fair market value of the property is less than $500.  Similarly, if the damaged property costs less than $500 to repair, you would not need to report the accident. However, if the fair market value of the destroyed property is more than $500, or if the damaged property costs more than $500 to repair, you must report the accident.

In such a report, the FAA requires you to give your name, contact information, Remote Pilot Certificate number, and the drone's registration number. The FAA also asks you to report the location, date and time of the accident, and a description of what happened, including the person injured and their injuries, or the property damaged.  Use this link to report the accident: https://www.faa.gov/uas/report_accident/

In addition, you must report certain serious accidents to the National Transportation and Safety Bureau (NTSB). 

Preflight Procedures

Prior to deploying the drone, you must assess the operating environment. The assessment must include at least the following:

  • local weather conditions;
  • local airspace and any flight restrictions;
  • the location of persons and property on the surface; and
  • other ground hazards.

You must also ensure that:

  • control links between the station and the drone are working;
  • there is sufficient power to complete the intended operation;
  • any equipment attached to the drone is secured and will not adversely affect the flight; and
  • you have the necessary documentation in case of an FAA inspection.


The Drone Must Be in Safe Operating Condition

You may not operate a drone if it is not in a condition that's safe for operation. For example, you should inspect your battery before each flight to see if there is enough battery life to complete the intended operation, and for any signs of physical damage to the battery. Many drones are powered by lithium batteries, which are highly flammable and capable of self-ignition through a process known as thermal runway.

Regular maintenance, including modification, repair, and system software updates, helps ensure that the drone remains in a condition for safe operation. The FAA recommends following the drone manufacturer’s scheduled maintenance program and preflight inspection checklist, if provided. If not provided, develop your own regular maintenance and preflight inspection procedures, and maintain those records. 

The Drone Must Be in Visual Line of Sight (VLOS)

You must be able to see the drone at all times during its flight. Seeing an aircraft means the ability to see with glasses, contact lenses, or your naked eye. It does not include binoculars or telescopes. You cannot use the camera on top of the drone to “see” the drone.

There are two exceptions when you can lose visual line of sight of a drone.  You may briefly lose sight of the drone in cases of operational necessity. Operational necessity would include a situation like using a drone to inspect a rooftop, which might entail losing sight of the drone for brief periods while inspecting the farthest point of the roof.

Similarly, you may briefly look away from the small UA for the safety of the operation. Safety of the operation would include situations such as looking at the controller to determine battery life, or scanning the airspace for traffic. To scan the airspace, the FAA recommends beginning by looking at a far distance, and then looking sideways and inward, stopping for, at most, a few seconds at certain points along the way.

Operational Limitations for Unmanned Aircraft

You must follow these rules when operating a drone:

  1. Do not fly faster than a groundspeed of 87 knots (100 miles per hour).
  2. Do not fly higher than 400 feet above ground level (AGL), unless flown within a 400-foot radius of a structure. A drone cannot be flown higher than 400 feet above a structure.
  3. Minimum visibility may not be less than 3 statute miles.
  4. Minimum distance from clouds must be no less than 500 feet below a cloud, and no less than 2,000 feet horizontally from the cloud.

Operation Over People and Near Other Aircraft

Generally, you may not operate a drone over a person. However, you may operate a drone over a person if that person is participating in the operation, or is located under a covered structure or inside a stationary vehicle. The purpose of this rule is to protect people from falling drones. You must also avoid and yield to other aircraft. This is commonly known as the “see and avoid” approach.

Prohibition on Reckless Operation and Operation of Multiple UAs

Part 107 prohibits the reckless operation of a drone. An example of reckless operation would be operating a drone while you are distracted. Part 107 also prohibits you from operating more than drone at the same time.

Operating While Impaired

Part 107 prohibits you from operating a drone if you: 

  1. have consumed any alcoholic beverage within the preceding eight hours;
  2. are under the influence of alcohol;
  3. have a blood alcohol concentration of 0.04% or greater; and/or
  4. are using a drug that affects your mental or physical capabilities.

In addition, you may be impaired if you are drowsy or have a medical condition that might affect the safe operation of your drone. 

When Can You Operate?

Part 107 prohibits operating drones at night. For this purpose, night is defined as the time between the end of evening civil twilight and the beginning of morning civil twilight. In the contiguous United States, civil twilight is the period lasting 30 minutes after sunset, and starting 30 minutes before sunrise.

RESOURCES FOR TAKING THE INITIAL AERONAUTICAL KNOWLEDGE TEST

The Airman Certification Standards (ACS) for Unmanned Aircraft Systems (PDF) organizes the material you need to know into different subject areas and tasks. This is a useful document that helps identify what you need to know for the test and what you need to work on. It also names the relevant documents that can help you learn this material.

This slideshow produced by the FAA can familiarize you with more of the operational rules for drones:  https://www.faasafety.gov/files/helpcontent/courses/5095_lms_faast/menu/index.htm

Also, the AC 107-2 Study Supplement provides more background on the rules and operational procedures of Part 107: Study Supplement for Regulations and Airspace Classifications.

The Remote Pilot Study Guide (PDF) provided by the FAA dives a lot deeper into airspace classifications, weather, operations, and aeronautical decision-making. This is material you need to know in order to pass the test.

Once you're ready, you can look at and take the practice exam provided by the FAA: https://www.faa.gov/training_testing/testing/test_questions/media/uag_sample_exam.pdf.

USEFUL LINKS

 

FEEDBACK

InterNACHI® wants your feedback on this article.  If you have comments or questions, please email InterNACHI® General Counsel Mark Cohen at legal@internachi.org

 

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