Drones have revolutionized the way the construction industry can monitor the progress of a project from precarious heights or treacherous locations. They can also be used to track equipment and materials, and deliver materials to workers in hard-to-reach areas. Thermal drones, for example, offer the user the ability to record infrared images of a project, which may be used to detect water intrusion and sources of a leak. The advantages of drone use may seem rather clear, but ensuring best practices is more opaque. And, despite that drones have now been used for several years to monitor projects, the law has taken some time to catch up and provide a regulatory framework for their proper use.
The Federal Aviation Administration (FAA) refers to drones as “Unmanned Aircraft Systems” and, as the name suggests, the FAA considers drones to be a form of aircraft. On June 21, 2016 the FAA released Part 107 of the Federal Aviation Regulations (the “Regulation” or “Part 107”) which regulates the use of drones when operated for commercial purposes. If the drone operator will be receiving any form of compensation for use of the drone, the use will be considered commercial and Part 107 applies.
Federal Restrictions Upon Use Of Drones
The Regulation largely restricts who may operate an Unmanned Aircraft System (UAS) and where it may be operated. For example, only a certified drone pilot may commercially operate a drone. The most significant imposition is that the user may only operate the drone in Class G airspace. Class G is uncontrolled airspace, but it is also likely that in a dense urban environment, the project will be located in regulated airspace. Figure 1 displays the airspace over Southeastern Florida. The circled areas are examples of regulated airspace.
There are also visual flight rules and visibility requirements which must be met in class G airspace. These regulations are set forth in lengthy detail in the Aeronautical Information Manual published by the FAA. Fortunately, the FAA also has a smartphone application named “B4UFLY” that helps drone operators determine whether there are any restrictions or requirements in effect at the location where they want to fly a commercial drone. Once the drone operator has determined what airspace restrictions, if any, apply to the project site, the next step is to obtain any available waivers.
If the location in which the operator would like to use the drone is within five miles of an airport, it is incumbent upon him or her to notify the airport tower and obtain authorization. Other venues over which the airspace is restricted include national parks, nuclear power plants, NOAA marine sanctuary areas, military bases, prisons, stadiums and areas where large crowds of people are present. Depending on the classification of the restriction, a waiver may be available upon request from the FAA website (https://www.faa.gov/uas/request_waiver/). It is highly suggested that appropriate waivers be sought without delay since the FAA may take several weeks to grant one.
The new Regulation does not address privacy issues that may arise through the use of drones, but the state in which the drone is being operated may have enacted such rules or regulations. By way of example, in Florida the Freedom from Unwarranted Surveillance Act was enacted in 2015 and amends section 934.50 of the Florida Statute. The regulation prohibits a person, state agency or political subdivision from using a drone to capture an image of privately owned property or those on the property – including an owner, occupant or invitee – with the intent to conduct surveillance.
Under this law there is a presumption that a person has a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be. Individuals have a private right of action to seek compensatory damages, punitive damages, attorneys’ fees, and injunctive relief for violations of the surveillance prohibition.
As noted above, there must be the intent to conduct surveillance. Moreover, the law does not prohibit the use of a drone by a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s or entity’s license. As such, it is not likely that the operation of a drone for the purpose of monitoring a project will violate the regulation. However, the drone operator should be mindful of whether the drone will be incidentally capturing images or video of private property while surveying the project.
The most important takeaway from this article is to find a certified drone pilot to perform the surveying, because use of the drone will undoubtedly be considered commercial. The next is whether the possibility exists to infringe on someone’s right of privacy during the course of the surveying. If yes, then the company retaining the drone operator might consider obtaining a waiver from the affected person(s), when possible.
There may be other avenues of liability that arise from hiring an outside vendor to perform drone surveying. As a precaution, consider including an indemnity provision in the agreement with the drone operator. The FAA classification for small drones includes those weighing up to 55 pounds. In the event of an accident, the drone could cause serious injury or property damage. If there is such an accident, it must be reported within 10 days to the FAA.
Furthermore, any unsafe occurrence or hazardous situation that involves the use of the drone should be reported to the Aviation Safety Reporting System (ASRS), which is run by NASA. First, reporting is confidential. Second, although the incident may constitute a violation of an FAA regulation, neither a civil penalty nor certificate suspension will be imposed if four criteria are met: the violation was inadvertent; it does not disclose a lack of competency or qualification; the operator has not been found to have committed a violation in the preceding five years; and, the operator can prove that within 10 days of knowing of a violation, it was reported to NASA through ASRS.
Finally, the entity hiring the drone operator should verify that the insurance at the project covers drone use. Many commercial general liability policies and owner controlled insurance programs exclude coverage for aircrafts. ISO form CG 21 09 titled “Exclusion – Unmanned Aircraft” is an endorsement that excludes bodily injury, property damage, and personal and advertising injury arising out of the ownership, maintenance, use or entrustment to others of an unmanned aircraft.
Accidents can happen and liabilities arise, but proactive measures can insulate those who wish to take advantage of the benefits of drones and sophisticated technologies which monitor the progress of construction projects.