Up in the Air: Drones and the Future of the Construction Job Site
Unmanned aerial vehicles, commonly referred to as “drones,” are appearing more and more frequently in the skies over construction project sites.
Drones typically operate from a handheld device, such as an iPhone, and can be connected to a Wi-Fi network. The physical design utilizes four to eight rotary blades, which allow for fairly fluid vertical movement and aerial stability. Such stability — the ability to hover or remain in place for an extended period of time — can prove particularly beneficial for surveying a job site. For example, drones can be used to capture images of the work from above and then transmit the information to one of a number of mapping software programs, which are, in turn, used to analyze and monitor all phases of a project, from site preparation to completion.
Beyond surveying the site, drones are being used by companies to view or inspect work that is either highly elevated or located in difficult to reach areas. Drones also are proving to be a valuable marketing tool, by allowing for impressive aerial footage or video of job sites, which can be shown to clients and potential clients. In the near future, drones may even be used for physical transportation of equipment and project materials. Indeed, multinational corporations, including Amazon and Google, have famously begun discussing the use of drones to transport and deliver goods to their respective customers.
Drones and drone technology truly possess the potential to fundamentally change the construction industry. However, the legal framework under which drones operate is still in flux.
Governmental Oversight and Restrictions
Laws and safety regulations are starting to address this new use of drone technology. The Federal Aviation Administration (“FAA”) is the governmental agency tasked with the safety and regulation of civil aviation. Presently, the FAA allows for the recreational, not commercial, use of drones weighing under .55 lbs., as long as the drones are not flown more than 400 feet above ground and not operated without permission near an airport or otherwise in a location that may interfere with air traffic.
As drones become more common and the technology continues to advance, the FAA is facing the realities of limited domestic airspace, public and personal safety, as well as privacy rights and concerns about drone use by groups with extremist or terrorist ties. Congress recently passed the FAA Modernization and Reform Act, which mandates that the FAA develop and promulgate rules and regulations for drones and their commercial or business use and operation. These FAA regulations should be finalized in 2016.
Although the commercial use of drones is not technically illegal, the FAA requires commercial drone operators to apply for and obtain a Section 333 exemption. The process to obtain this exemption is cumbersome and slow, but contractors should be aware that the FAA has demonstrated that it will not hesitate to levy significant (seven figure) civil penalties to those contractors who are discovered using drones on project sites without the necessary Section 333 exemption.
The FAA continues to develop and finalize its drone regulations, and from a legal standpoint, the use of drones by construction contractors is still in an uncertain state of limbo. Beyond remaining mindful of the FAA requirements and regulations as they are updated, construction contractors would be well-served to create and implement their own internal guidelines and policies with respect to the use of drones on the job site. For instance, drone operators should be required to go through a training protocol or process, and drone flight paths should be properly planned in advance and documented.
Other Issues: Insurance Coverage
Another significant issue for contractors to consider in connection with the use of drones on the construction job site is the commercial general liability (CGL) insurance policy. It is unlikely that a contractor’s CGL policy would cover accidents or damage to the drone or to property or, for that matter, to individuals for injuries caused by a drone crash or collision. Until drones become more common in the construction industry, contractors should obtain separate insurance coverage for their drones. Those contractors who have applied for and received the Section 333 exemption and plan on using drones on the job site should consult with an insurance broker and/or attorney to make sure they obtain the proper coverage.
More Information Coming…
Stay tuned in 2016 for news regarding how the FAA, the courts, and insurance companies respond to drones and the continued advancement of drone technology. If you are, or are contemplating, using drones on your job site, you should consult with an attorney to consider the legal issues associated with this new and developing technology.