A growing number of construction companies are exploring the use of unmanned aircraft systems (UAS), commonly known as drones, to provide a variety of services and collect information and data more efficiently, more effectively and more safely than can be done by people. While this technology offers a lot of potential for the industry, construction professionals must be mindful of the pitfalls and risks associated with the use of drones on a construction site.

Given the wide range of applications for UAS technology, it is not surprising to see significant interest in drone use from construction professionals. Among the most beneficial uses of drones in the industry are:
  • aerial site photography and videography;
  • inspections (especially in areas where it may be hard or costly to send workers);
  • monitoring runoff and other environmental factors;
  • monitoring worker safety/OSHA compliance and providing a visual record of safety measures; and
  • creating marketing materials.
Despite the recent surge in drone use, the legal framework for operating drones on construction sites and for other business purposes is still being developed. The Federal Aviation Administration (FAA) is formulating its rules for all non-recreational uses of drones, and the latest intel suggests it may be June or later before the agency completes the process of integrating drones that weigh 55 pounds or less into the national airspace.

Exemptions
In the meantime, companies have been able to apply for a so-called Section 333 exemption, which, if approved by the FAA, allows them to use drones for commercial purposes (and other non-recreational applications, including research and training), so long as they abide by certain requirements and restrictions. Among the punch list of restrictions and conditions is the use of a licensed pilot to operate the drone, which must remain within the line of sight of the operator, must only be flown during daylight, and must stay at least 500 feet away from people not involved in the drone’s operation. The application process can be lengthy—often taking four or five months for an exemption to be granted.

Last September, the Association for Unmanned Vehicle Systems International released an analysis of the first 1,000 Section 333 Exemption approvals granted by the FAA. (As of Jan. 8, almost 3,000 exemption requests have been approved.) Of the first 1,000 approvals, nearly one-seventh were awarded specifically for use in the construction industry. However, with nearly one-third of all approvals being awarded for aerial surveillance and about 8 percent being awarded for utility inspection, there is clearly a lot of industry crossover.

After a Section 333 exemption is granted, a certificate of authorization (COA) must be obtained. Fortunately, Section 333 exemption grantees can take advantage of a “blanket” COA that is automatically associated with an exemption grant. This authorizes UAS flights by exemption grantees up to altitudes of 200 feet above ground level. Any exemption grantee that wants or needs to operate at an altitude above 200 feet must apply for a COA for such flights, and that process typically adds at least another 60 days to the overall process. 

Regulatory Risks
While the FAA has authorized many construction companies to use drones, just as many, if not more, are using them without the proper permission. For the most part, these companies have been able to keep their drones “under the radar,” as staffing limitations have kept the FAA from aggressively pursuing companies or individuals using drones illegally. As long as a drone is flown safely and does not generate publicity, it is possible that its unlawful use will not come to the attention of the FAA.

However, companies caught using the technology illegally face potential FAA enforcement action and fines. Indeed, in October 2015, the FAA proposed a $1.9 million fine for one company relating to dozens of unauthorized UAS flights it conducted over more than two years.

In late 2014, the FAA issued guidance to local law enforcement nationwide to be on the lookout for unsafe operations, and the FAA itself will likely step up enforcement efforts if there is a rise in the reports of reckless and unsafe activity. Several states and municipalities also have enacted or are considering their own regulations to govern certain aspects of drone operations, particularly by commercial enterprises. The FAA in December 2015 issued a fact sheet discussing federal preemption and encouraging state and local officials to consult with the FAA before enacting drone-related legislation.

The technology itself, especially in the hands of a novice or undertrained user, also has some inherent risks. For example, if not controlled properly, the drone could go off course and potentially cause injury to people and damage to construction materials and the device itself. There is also a risk that the device could land on property owned by others or interfere with activity on neighboring properties. To help mitigate the likelihood of personal injury, the FAA requires drone flights (authorized by a Section 333 exemption grant) to remain at least 500 feet away from people, other than those involved in the drone operation. Some drones have geo-fencing capabilities to minimize the likelihood of such situations.

Privacy Concerns
In addition to air safety, another ongoing concern with drone use is privacy. The small UAS rules proposed by the FAA do not specifically address privacy, but it is being debated and addressed by many states and local governments, and the National Telecommunications and Information Administration has been tasked with bringing a variety of stakeholders together to address the issue.

One common measure adopted in various locales is to require drone operators to obtain the permission of people and property owners to photograph or record their image and land. This can be of particular concern when using drones for aerial photography because it can be extremely hard to ensure that images are only taken from inside the boundaries of a specific plot.

Because the mere presence of a drone may cause concerns among neighbors, it may be beneficial to alert neighboring property owners of drones being used onsite.

It also would be prudent to notify subcontractors of any drone use onsite. Construction firms may want to include a clause in all contracts advising of the possibility of drone use and to obtain subcontractors’ consent to such use and recording.

While the only current way to use drones legally on a construction site is to receive a Section 333 exemption—or to hire a company that has one—the process should become more straightforward later this year or whenever the final FAA rules are adopted. At that time, drones likely will become more common on construction sites as more companies embrace the technology.  

Stephen Hartzell and Arty Bolick are partners in the Raleigh, N.C., office of Brooks Pierce McLendon Humphrey & Leonard. For more information, email shartzell@brookspierce.com or abolick@brookspierce.com.