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Federal Foot-Dragging Allows Some Drone Photographers to Take Flight, Grounds Others

Despite federal bans on commercial uses of drones, many are using the gadgets for aerial photography.

Earlier this week, the Secret Service fetched a drone flown by a tipsy government employee off the White House Lawn, and yesterday the Federal Aviation Administration (FAA) asked football fans to keep the Superbowl game a “No Drone Zone” in a PSA.

While drone popularity has soared among hobbyists, it hasn’t stopped there. Though it doesn't seem super legal for them to be flown by fans spying on the Patriots’ equipment staff on Sunday or toasted staffers looking to check in on the Obamas at 3 a.m., that staffer wasn’t charged

But for the past few years, drones have been in a legal fugue state while the FAA finalizes regulations on drone use, which could take until 2017. Still, the lack of guidelines from the agency patrolling the country’s skies hasn’t hampered a burgeoning aerial photography market, and many looking to make a buck in Austin are taking advantage of the drone boom here and across Texas.

DJI's Phantom quadcopter is popular among hobbyists and commercial photographers alike.

In most cases, it’s legal to fly in Texas, but it’s tricky. It’s illegal to put drone video online if it flies over private property – unless a pilot is contracted by the property owner, which, by FAA standards, is illegal.

The FAA has dragged its feet on specific legal guidelines for drone use and, until expected regulations, banned all drones from pizza delivery, real estate photography and anything else. Though it has granted two so-called “certificates of authorization” to private groups in Arizona and Washington, for real estate and agriculture purposes, respectively.

Unabated, unencumbered drone flight is only allowed on six test sites, to test safety issues like drone-aircraft collision protocols and lost GPS signals. Michael Starek is an assistant professor of geographic information systems and geospatial survey engineering at Texas A&M Corpus Christi, host of one of the six designated test sites.

Starek leads a program that assists the university on Ward Island in managing the site's development, mapping shorelines and monitoring weather and other coastal hazards. The school’s program was granted a certificate of authorization five months ago, he says, but its permission was revoked and had to be resubmitted to the FAA in November, grounding the program indefinitely.

Credit YouTube
A screenshot from the FAA's recent PSA asking Super Bowl attendees to leave their drones at home.

Unlike the university’s test site, the program doesn’t have carte blanche to fly at will. They can only fly a small, foam E-Bee survey drone once a week, typically Sunday, with an authorized pilot. Per FAA regulation, they fly below a 400-foot altitude and their data is kept by the university. Despite some hand wringing, Starek says he understands the agency’s decision to ground the program and its reticence to establish guidelines for civilian use.

“I can see their perspective on it. The crafts we work with are small-scale, very lightweight,” he says. “They seem harmless, but if you multiply that by a million of these little things flying around, I can definitely see the FAA’s concerns.”

However, flying drones commercially, per state law, is above board – pilots must be contracted to capture footage on that property, maintain line of sight with the drone and fly below 400 feet. That violates FAA regulation, however, which is why those studying the environment at universities, and even media outlets looking to branch out into drone photography, are ultimately at the mercy of the FAA.

The FAA can fine violators up to $10,000, but the agency has little enforcement power, so many are risking it. And, in Austin, nobody has been cited for violating Texas law for flying a drone over private property since the law went into effect in 2013.

Robert Youens with Camera Wings has years of experience as a commercial helicopter pilot in Austin, but he was also an early adopter of drones. He says he uses drones more and more for photography for real estate and oil and gas companies in Dallas, San Antonio, Houston and Austin. When asked if what he does is legal, his answer, much like the legal status itself, is a little murky.

“It kind of depends on who you talk to,” he says. “All I can say is the FAA doesn’t authorize what I do at this time. Does that make it illegal?”

Youens says it is, but that federal judges have a track record of dismissing the FAA’s cases against commercial drone flights – including one case in which a pilot was contracted to fly for the University of Virginia and fined $10,000. Youens has flown similar contracts for UT-Austin, Texas A&M, Trinity University and the University of Miami.

Camera Wings’ flights, Youens says, are all insured. Pilots announce take-offs, and drones are inspected beforehand. But some in Austin flocking to aerial photography aren’t insured like Youens. Outfits often fly drones over ACL, Fun Fun Fun Fest and other events for clients, something Youens says he’s declined multiple times. More frequently, those outfits will offer drone photography services to real estate agents looking to sell downtown condos or lakefront properties.

Austin real estate agent and drone enthusiast Perry Henderson says old school aerial photography – contracting helicopter pilots to fly over properties – costs up to $800 an hour, in addition to photographer costs. Drones, he says, would help cut down on costs, allowing potential buyers online access in an increasingly online market. He’s crashed his own drone plenty of times to test it, he admits, but says many out there might not understand the safety risks.

“You’ve got a duty to know safety and to operate responsibly,” he says. “That’s what I see as the greatest challenge to these systems. There are a lot of knuckleheads out there, and crashes happen. We have a duty to make sure people are safe when we’re taking photos.”

Starek says, for the moment, he’s fine with the oversight. His program’s re-submitted paperwork to the FAA to prove it serves a public purpose, not private interest, and hopes to re-qualify for authorization by the end of the semester. But, he’s worried the proliferation of drones and hiccups like the White House crash could further delay FAA rules.

“Say one does cross an airport and cause an accident,” he says. “That’s just going to delay things for all of us that are just trying to abide by the regulations and let the FAA take its time. My personal recommendation is to just hold off.”

Youens, however, doesn’t plan on holding off, though he's looking forward to the FAA’s impending regulations.

The FAA is expected to rule definitively on civilian drone use in September. As for Texas, so far, no legislation has been filed to further address drone use.

Andrew Weber is a general assignment reporter for KUT, focusing on criminal justice, policing, courts and homelessness in Austin and Travis County. Got a tip? You can email him at Follow him on Twitter @England_Weber.
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