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February 24, 2017

Construction Industry Poised to Benefit from Newly Released Federal Government Regulations of Commercial Use of Unmanned Aerial Vehicles

Chadd L. Reynolds

Unmanned Aerial Vehicles, commonly referred to as "drones," are a relatively new technological advancement that has seen tremendous growth in the past few years.  Drones are already popular for recreational use by hobbyists and for military operations by governments.  Aside from these common uses, drones have the potential to significantly impact numerous commercial industries as well.  Based on some estimates, the global market value for drones replacing current business services and labor could exceed $127 billion, with more than one-third of that coming from industries in construction.

Drones are currently used by the construction industry on projects to document inventory, safety issues, quality control, and project progress on a regular basis.  Depending upon its technological capabilities, drones can collect vast amounts of data and capture high resolution and 3D images of a construction project.  Even with a basic camera, drones can provide eye-catching material for marketing purposes.  Such uses increase efficiency, better collect data, and decrease project costs.  Yet, construction companies have been slow to realize the benefits that drones can provide on construction projects.

One of the main impediments to drone usage was the regulatory framework for the commercial use of drones.  Since 2012, companies desiring to operate drones on construction projects applied for a Section 333 exemption with the Federal Aviation Administration ("FAA").  Applications were reviewed on a case-by-case basis with only prior accepted applications serving as a guideline for approval, leaving some in the industry to describe the process for receiving an exemption as slow, cumbersome, and inefficient.

In an effort to establish clearer guidelines and provide a streamlined approval process for applicants, the FAA issued a notice of proposed rulemaking in 2015.  These new regulations for the commercial use of drones were finalized by the FAA, along with the Department of Transportation, in June 2016 and later went into effect in August 2016.  The rules focus on four areas of drone regulation, and are designed to facilitate the use of commercial drones in national airspace while limiting risks to the public and national security.

First, the new rules restrict the properties and flight capabilities of drones.  A drone operated for commercial use must weigh more than 0.55 pounds but less than 55 pounds, including any property being securely transported by the drone.  The rules limit the maximum altitude at 400 feet above ground level to minimize interference with other large aircraft.  However, if the drone is being flown from a structure above ground level, it may fly 400 feet above that structure's highest point.  The rules also institute a maximum groundspeed of 100 miles per hour.

Second, the new rules place certain restrictions on the remote pilot when the drone is in operation.  For example, drones are only permitted to fly in Class G airspace.  Class G airspace includes all other airspace not currently controlled by the FAA.  Remote pilots are prohibited from flying over individuals who are not participating in the drone's operation or are not under a covered structure or vehicle.  The drone must be operated during daylight hours, which includes thirty minutes before sunrise and thirty minutes after sunset.  The remote pilot may not operate the drone from a moving land or waterborne vehicle, unless the operation takes place in a sparsely populated area.  If the operator of the drone does not have a remote pilot certificate, he or she must be under the direct supervision of someone who <\/sup>does.

Third, the new rules place certain responsibilities on remote pilots when operating a drone.  The remote pilot must perform a preflight visual and operational check to ensure the drone's safe operation before every flight.  When the drone is in operation, the remote pilot must always maintain visual line of sight with the drone. A third party, or a visual observer, may also be used to assist in the operation of the drone.  If a visual observer is used, the drone must remain in the visual observer's line of sight, along with that of the remote pilot.  If flown within the thirty-minute window before sunrise and after sunset, the drone must be equipped with appropriate anti-collision lighting that must be visible from three miles away.

Lastly, the new rules also restrict those who are permitted to operate drones.  Individuals desiring to operate a drone for commercial use are able to apply online for a remote pilot airman certificate.  Applicants must be at least 16 years of age, pass an FAA approved aeronautical knowledge test, and be vetted by the TSA.  If an applicant is already a licensed pilot, he or she may take an online training course instead of the aeronautical knowledge test.  The cost for obtaining a remote pilot airman certificate is $150.  Once a certificate is obtained, remote pilots will need to pass their respective online training course or knowledge test every 24 months.  The drone must also be registered with the FAA and marked with a registration number.

Despite the numerous restrictions and responsibilities for the commercial operation of drones, the FAA incorporated a waiver provision to accommodate new technologies and unique operational circumstances.  Remote pilots seeking to operate a drone in a manner inconsistent with the new rules can apply for a waiver online with the FAA. Many of the restrictions can be waived if the FAA administrator determines that the proposed operation can be safely conducted under the circumstances.

Although the new regulations provide an expansive regulatory framework for the commercial use of drones, they do not cover other significant legal issues that may arise when operating a drone.  For example, some states have enacted laws regulating the use of drones.  Construction companies must look to local or state laws to ensure the drone's operation is legally compliant.  Other important considerations include the drone's impact on privacy and insurance coverage. 

Ultimately, the new regulations provide a solid framework for construction companies beginning or continuing to use drones on projects.  A change from the limited and unstructured regulations of the past provide construction companies with a more consistent and predictable environment to operate a drone for commercial purposes.  Hopefully, the benefits of drones will be realized by more in the construction industry with the existence of these new regulations.

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Chadd L. Reynolds

Autry, Hanrahan, Hall & Cook, LLP, Atlanta, GA, Young Lawyers Division