FAA SECTION 333 DUE DILIGENCE: Is your aerial photography or videography vendor flying within the regulations?
Should I hire a company to take aerial photographs using a quadcopter / UAV / drone for my real estate or other business?
If you are going to hire an outside company to take your drone photographs, there are some due diligence items you need to complete. There are two primary risks, which need to be avoided.
Drone Risk #1: The first risk is your possible liability if someone should sue for injury to person, property or under some other legal theory (i.e. privacy invasion, unlawful use of likeness, etc.) for a drone flight conducted on your behalf. Even though your vendor conducted the flight, you can potentially be sued as well for the unlawful or negligent actions of the vendor.
Drone Risk # 2: The second risk is the potential for a regulatory action by the FAA (or other federal or state agency) for violating the federal aviation regulations, the limitations in a Section 333 exemption or some other law. As noted previously, it is possible the agency or government authority will hold you responsible for an unlawful or unsafe flight.
Your Due Diligence Checklist For Use With Your Drone Aerial Photography and Videography Vendor.
Here is a checklist you should complete if you do use an outside vendor for drone photography or videography.
Ask for the vendor’s Section 333 Exemption Number and Regulatory Docket Number, as well as the granted exemption document from the FAA.
Note the company name on the exemption. Search the FAA website to make sure the exemption has been granted to the company you are hiring. Here is the link to search for exemptions by company name. https://www.faa.gov/uas/legislative_programs/section_333/333_authorizations/
Ask for the operation and maintenance manuals, which the vendor will be using to conduct each flight. These are the safety manuals, which are required by the FAA. To reduce risk of injury to person or property.
Make sure your contract with the vendor requires that all flights occur under the exemption limitations, operation manuals, maintenance manuals, as well as all applicable FAA regulations. Obtain indemnify and hold harmless language which fully protects you from any problems.
Confirm that the Pilot in Command (PIC) for each flight has an airman’s certificate and that each flight will also have a visual observer as is required by the FAA.
Confirm that the vendor is flying under the blanket Certificate of Authority (COA) issued by the FAA, or has obtained a civil COA for all flights outside the blanket COA.
Retain the right to request documentation from the vendor of all COAs, NOTAMs, Log Books, Operations checklists and other operational documents on 24 hours notice. Audit the vendor monthly at first to ensure compliance.
Ask to see your vendor’s drone insurance policy and require that your company is ‘named’ as an additional insured for all flights. Most comprehensive insurance policies exclude coverage for an activities related to aviation, so obtaining special drone policy is critical. An experienced drone law attorney can direct you to a reputable insurance agent who specializes in drone insurance.
Pay particular attention to any videos posted of flights within 3-5 miles of any airport, or in residential areas where the drone operated within 500 feet of neighbors or pedestrians who was not associated with the flight, or occurred over property, which does not belong to your real estate client. These flights may be illegal.
Retain a drone lawyer to review your vendor contracts, operating procedures, insurance and other requirements to ensure risk reduction and safe flight.
Drone use under FMRA Section 333 is not rocket-science. But it does require strict compliance. While many vendors are playing ‘fast and lose’ with the FAA’s drone regulations, rules and limitations, this just hurts the credibility and viability of this new and amazing technology. There is no reason why your vendor should not be ‘doing it right’ if they are professionals. No one wants to FAA to shut this technology down due to non-compliance or safety issues. Fly right and fly safe. Protect yourself from FAA enforcement actions, and help the industry grow responsibly.