By Brian J. Schoolman, Safran Law Offices

The sky above your construction site is about to get a lot more crowded.  Since the Federal Aviation Administration finally rolled out updated regulations for the commercial use of unmanned aerial vehicles (“UAV’s”), better known as drones, there has been an explosion in the use of these devices in construction-related applications.  But before subcontractors rush out to purchase drones for their projects, it’s important to understand how they can be used legally, and how they can offer value to construction trades.

The State of the Law

In 2016, the FAA published a set of regulations for the commercial use of small unmanned vehicles.  These regulations, better known as the Part 107 rules, significantly broadened the ability of businesses to use drones for commercial purposes.  Previously, in order to use a drone for commercial purposes, an operator had to hold a pilot’s license, and had to obtain a special exemption from the general prohibition against commercial drone operation.  Obtaining such an exemption was expensive and time consuming, and the backlog in getting applications processed run several months at its peak. By contrast, operators under Part 107 simply need to obtain a certification by passing a knowledge test and registering with the FAA.

    Under Part 107, certified operators can use UAV’s weighing less than 55 pounds (25 kg) for commercial purposes so long as they comply with the operating requirements.  Those requirements include: (1) drones can only be operated within visual line-of-sight of the operator; (2) drones may not be operated over any persons not directly participating in the operation or having given consent; (3) drones can only be operated in daylight or within 30 minutes before sunrise and after sunset; (4) drones can only travel at a maximum groundspeed of 100 mph; (5) drones can only operate at a maximum altitude of 40 feet above ground level, or within 400 feet of a structure; and (6) drones may not be operated within restricted airspace (such as near airports or military bases).

    As a practical matter, outside of being aware of where a project is located in relation to controlled airspace, the biggest legal concern for subcontractors who wish to use drones on projects is making sure to have consent from people who will be on the jobsite.  Most contracts and subcontracts have not addressed drone use yet, but it would be worthwhile to draft language to get consent from the parties above and below.

Construction Applications

    Everyone knows about using drones to take pictures and video, but that is just the tip of the iceberg for construction applications.  When it comes to UAV’s, the data that can be generated, collected, and utilized is in many ways far more valuable than mere visual images.

    In terms of video, the process uses go beyond merely taking pictures and video.  With advanced software, drones can be used to produce surveys, topographic imagery, and other forms of photogrammetry.  When adding in the factor of time, drone visuals can be utilized to reflect both process in construction, and progress.

    Larger drones have begun to take the place of other forms of lifting tools for moving, carrying, and positioning materials.  Drones can take the place of helicopters for ferrying certain types of equipment and materials in uneven terrain, and often at a fraction of the cost.  They can also provide sighting for the positioning of materials or installations, and offer perspectives that are difficult if not impossible for manned operations.

    The technology of sensor packages that can be operated via UAV presently include, and will in the future allow for, the performance of various types of safety inspections and materials testing.  For instance, drones using scanning technology including both visual and thermal components are used for continuous scanning of pipelines to look for defects or potential failures, even in remote areas.  There are sensors being developed to test hardness and quality of concrete as it is being placed and setting, and others that can evaluate potential failures of in-place concrete structures.

    In the future, the limits on how drones may be used in construction applications may come only from the creativity and ingenuity of the people developing the technology.  As such, subcontractors would do well to keep their eyes and their minds open to such uses.

Risks and Mitigation

    There is no doubting the potential benefits from using UAV’s for construction applications.  However, subcontractors also need to consider the risks if something goes wrong. If a project manager goes to the store, buys a drone, and starts using it on a job site without proper registration, he not only puts himself at risk for civil or potentially even criminal penalties, but he exposes the company to risk as well.

    The threats from enforcement could come from many sides.  The lack of a Part 107 certificate could lead to enforcement from the FAA.  Not having authorization to fly over individuals may expose the operator and his company to suits from individuals who have not consented.  Publication of protected information, construction processes, or proprietary client data would potentially lead to intellectual property claims.

    Of course, the largest source of risk comes from what happens if something bad happens with the drone itself.  A drone which falls from the sky or hits something can be costly in several ways. If it hits a person, there could be injuries or even death.  If it hits the building under construction, or some other nearby structure, there could be property damage. Finally, there is the risk of loss to the drone itself, as well as the camera, sensor, and/or other payload attached to the vehicle.  Subs who utilize drones on construction sites need to be sure that they have insurance that addresses all of these potential risks. In addition, to the extent there is special value to the data generated by the drone, operators and their companies need to ensure that the data is protected and does not get lost or fall into the wrong hands.

The Future

    There is no question that UAV’s are part of the present for construction, as well as the future.  It is only a matter of time that the same or similar technology will be utilized for new and unexpected applications.  Unmanned vehicles will be used in confined spaces and even to run in pipes and sewers. Construction equipment will become more automated.  Robots may well go from being used only on assembly lines to being a force in field construction as well. For subcontractors, there is a necessary balance to be achieved between the benefits of being on the cutting edge, and taking on the risk of untested or unpredictable technology.  Moreover, the law is almost always trailing such developments. So for construction lawyers, the advice to clients is likely to be cautious, but don’t get left behind.

Brian Schoolman has been with Safran Law Offices in North Carolina since 2003.  His practice focuses on the construction industry, including litigation, contracts, project administration, and legislative lobbying.  Brian is a member of the American Bar Association Forum on Construction Law, and the North Carolina Bar Association Construction Law Section.Brian can be reached at bschoolman@safranlaw.com.