Story #10 of 10 in Haight’s series of Top Ten Stories in California Construction for 2015.
The expanding use of drones, officially referred to as “unmanned aerial systems,” promises to revolutionize the construction industry. Drones have the potential to allow contractors to efficiently and economically inspect project conditions, monitor work quality, identify safety hazards, and provide real time feedback to project managers, architects and owners. Although commercial use of drones is still prohibited without a special exemption, developments in 2015 evidenced that legalization of such use is within reach.
The widespread use of drones in the construction industry is dependent on a determination by the Federal Aviation Administration (“FAA”) that drones are safe for commercial use. Pending its establishment of official rules governing the operation of drones in the commercial context, the FAA currently prohibits such use. Companies can apply for an exemption under Section 333 of the FAA Modernization and Reform Act of 2012, which over 2,500 companies have successfully obtained, but this application process can be long and involved. As a result, many hoping to operate drones for commercial use, including in construction, have been left waiting.
While the FAA recently enacted registration rules for recreational drone owners, these new rules do not apply to commercial drone use. The new drone rules, which went into effect on December 21, 2015, require owners of recreational drones to register with the FAA and pay a small registration fee.
Unfortunately, commercial operators of drones will not likely find the registration rules as simple or inexpensive as the recreational rules. The FAA published a set of proposed regulations regarding commercial drone use in February, which will likely be implemented in the near future. Under the proposed rules, commercial drones must weigh less than 55 pounds, and must be registered with the FAA. Commercial drone operators must pass an aeronautical knowledge test in order to be certified, and must keep drones “in plain sight,” meaning they cannot be flown over 500 feet above ground or in areas with obstructed views. In addition, commercial the flight path of commercial drones is limited to the area of the commercial project. This latter requirement is particularly important for the construction industry, as drone operators will have to ensure that the devices do not meander from work sites into adjacent sidewalks or streets. The FAA registration fee for commercial drone operation is not yet known though it is a safe bet it will be substantially more than the recreational drone fee.
In addition to regulations set by the FAA, state and local rules concerning drones will also likely impact on the use of commercial drones. Forty-five states considered drone-related legislation this year, with 20 states passing such legislation. In California, AB 856 was passed in response to the use of drones by paparazzi. The law prohibits drones from entering airspace over private property in order to photograph or record an individual engaging in “private, personal or familial activity.” The prevalence of these bills in 2015 shows a trend towards the regulation of drones across multiple jurisdictions.
Aside from applicable regulations, construction companies planning to operate drones should assess the risks involved in using them. For example, there are a variety of ways an operator could lose control of a drone, including a loss of power or wireless connection, cellular tower or electromagnetic interference, high winds, and even bird encounters. Additionally, drones can be hijacked, and most commercial drones are not equipped with the expensive cybersecurity necessary to protect against such attacks. The risk associated with any of these events is a drone could crash into an aircraft, structure or person. Damages and injuries caused by drones may not be covered by standard commercial general liability policies. While not widespread, some insurers have jumped into this new market by offering separate coverage for drone use.
Overall, although widespread drone use is an exciting prospect for the construction industry, and could be as revolutionary as the cell phone or laptop. However, before jumping onto the drone bandwagon, companies planning to operate drones should keep in mind there will be increased costs in participating in such a highly-regulated and inherently risk-filled activity, and weigh these factors against the clear potential for increased efficiency.
This document is intended to provide you with information about construction law related developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.