The use of drones, or small unmanned aircraft systems (“UAS”), has become common throughout the construction industry in all phases of construction, including pre-construction, progress of the work, project closeout, and maintenance. This article examines the federal regulations related to drone use, as well as considerations for construction professionals related to state and local laws, project location, and weather issues.
Regardless of the state in which the project is located, companies and persons operating commercial drones must observe regulations promulgated by the Federal Aviation Administration (“FAA”), which has the exclusive authority to regulate aviation safety, airspace navigation, and air traffic control.
In June 2016, the FAA released 14 C.F.R. Part 107 of the Federal Aviation Regulations (“Part 107”), which regulates the use of drones when operated for commercial purposes. Small drones or UASs are defined as weighing less than 55 pounds on takeoff. Some of the initial FAA regulations involved operational parameters or restrictions including (a) the drone pilot must be within sight of the drone during operation; (b) the drones could not be flown over any person who was not directly participating in the operation of the drone; and (c) drone operations could only be conducted in daylight or civil twilight (30 minutes before sunrise to 30 minutes after official sunset). Although waivers could be obtained from certain Part 107 requirements provided the pilot demonstrated the drone could be operated without endangering life or property, the process could be lengthy and cumbersome to address the many operational restrictions.
In April of 2021, the FAA amended Part 107 at least in part to streamline the regulations relating to commercial drone use, including the requirements relating to flying at night and over people. These most recent Part 107 amendments expand use opportunities over construction sites and potentially lower compliance costs for drone usage on construction projects.
- Flying Drones At Night
Previously, commercial operators had to obtain a waiver to fly their drones at night, which required a significant amount of risk mitigation. Now, however, amended Part 107 permits night flight without the time and expense of a waiver and risk mitigation, provided companies utilize a drone pilot with current night certification and the drone has certain anti-collision lighting. The pilot must obtain and maintain night flight certification every two years. See §§ 107.29, 107.73.
- Flying Drones Over People
When Part 107 was initially issued, commercial drones were not permitted to be flown over people unless a waiver was obtained. Under recent amendments, commercial entities no longer need to apply for a project-specific waiver. Instead, commercial operators are now able to fly over people without having to incur the time and expense of a waiver based on the restrictions placed on the category of the selected FAA-approved drone model. §§ 107.100, et seq.
The drones (or UASs in FAA terminology) are now classified into 4 different categories, with each category having different requirements or thresholds relating to weight and amount of kinetic energy produced upon impact from a rigid object, or exposed rotating parts (e.g., propellers). In other words, if the drone or something connected to the drone comes into contact with a human being, what is the potential risk and extent of personal injury or death? Category 1 contemplates the smaller or micro-drones, and each of the remaining categories relates to correspondingly larger and heavier drones. See §§ 107.110-107.140.
Because drone manufacturers will conduct the testing to obtain approval from the FAA as to how the model can be categorized, compliance costs of flying over human beings will now be largely borne by drone manufacturers instead of commercial entities, such as construction companies.
State and Local Laws
Although commercial drone operations are approved under Part 107 of the FAA, additional laws exist at the state and local levels which should be evaluated. Many states have passed various laws directly relating to drone usage, most arising in the context of first responders and emergencies and do not appear to have general application to construction projects.
One noted exception in California, for example – Civil Code section 1708.8 (sometimes characterized as an “anti-paparazzi” law) may apply to certain construction projects as it creates a civil cause of action against anyone knowingly entering into the airspace of another to capture an image or recording of that person engaging in a private, personal, or familial activity without permission. This statute has “teeth” as it provides the successful litigant with the potential of obtaining, among other things, treble and punitive damages. As such, construction professionals should take care to understand and plan for potential privacy issues depending on such factors as project location, as well as the background of the commercial drone operators being utilized.
The location of the project, including the adjacent or surrounding area, can affect which laws, regulations, and restrictions apply in using drones at construction sites. According to the FAA, drone operators must receive authorization to fly drones near airports in controlled airspace before operation. Such authorizations come with altitude limitations and may include other operational provisions. If flying in uncontrolled airspace near airports, prior authorization is not required for flights in airspace that remain under 400’ above the ground. (See https://www.faa.gov/uas/getting_started/where_can_i_fly/airspace_restrictions/flying_near_airports). Interested parties may determine the existence and extent of controlled airspace and other flying restrictions through the B4UFLY application developed by the FAA in partnership with the private company, Aloft. (See https://www.faa.gov/uas/getting_started/b4ufly).
To the extent the project is located at or near a school, the chance that drone surveillance or photography could inadvertently capture images or audio of children or unsuspecting adults dramatically increases in comparison to, for example, a commercial warehouse being built hundreds of miles outside of the nearest town or city. As a practical matter, owners and contractors may consider restricting drone usage from occurring during times where students and staff tend to congregate outside, such as before and after school, during recess, and the lunchtime break. Having written protocols relating to drone usage discussed and approved before construction (e.g., at the pre-construction meeting) may assist the parties in avoiding or at least mitigating complaints and other issues related to drone usage on the project.
Similar concerns exist for projects in or adjacent to residential neighborhoods. Although likely not required, owners and contractors may consider circulating flyers to adjacent and surrounding neighbors and posting on community websites and social media forums that construction is or will be commencing during certain times of day for an estimated duration, which includes the use of drones. Additionally, owners and contractors can consider whether certain times of the workday should be utilized or avoided to avoid capturing images or audio of children and adults.
Part 107 requires the remote pilot in command to assess before the flight, among other things, local weather conditions. §107.49(a)(1). Although required, assessing weather has practical implications as the ability of drones to fly or maintain flight may depend on the weather conditions. Some construction professionals have reported that extremely warm temperatures (110° F or hotter) can prevent drones from flying. Extremely cold temperatures or rain may similarly affect drone performance. Other construction professionals have reported that windy conditions may affect drone usage as well.
In addition to understanding the weather conditions, construction professionals utilizing drones in connection with construction projects should also make sure they know and comply with any manufacturer’s guidelines and recommendations.
Regulations and laws relating to drone usage exist at the federal, state, and local levels, necessitating evaluation by construction professionals in connection with each construction project. Where a project is located, including what is near or adjacent to it, may have a significant effect on which laws and regulations apply. All applicable rules should be identified, reviewed, and complied with, or the applicable waiver obtained, as appropriate. Finally, assessing the current and anticipated weather conditions at a construction site is not only required but will better ensure the desired drone performance and avoid or minimize weather-related issues.
Watt Tieder is one of the largest construction boutique law firms in the United States, with a diverse and experienced team of attorneys representing many of the world’s leading corporations, developers and contractors on both domestic and international projects. We represent more than half of the Top 30 Engineering News Record contractors and most of the nation’s top sureties. With offices in six cities in the United States, the firm is a dynamic, mid-size boutique that provides knowledgeable and practical legal representation to the construction, surety, government contracts and bankruptcy industries world-wide.
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