Commentary: Construction Drones Take Flight Despite Uncertain Regs
Whose eyes are on your construction site and from what angle? Are you making the most of your resources, both human and material? On the jobsite, efficiency is critical to making deadlines and staying within budget. There is one resource that contractors are increasingly relying on to produce efficient results in all phases of construction—drones.
For decades now, the word “drones” has evoked a militaristic image of pilotless aircraft, but the technology of unmanned flight has evolved and adapted to meet civilian needs. That technology is now available at prices that make it affordable to purchase and lucrative to operate.
These small, nimble aircraft can be used to increase productivity on the jobsite in a myriad of ways. Currently, their capacity for capturing video, photography, thermal imaging and Lidar makes drones useful for surveying potential sites, creating 2D and 3D mapping and imaging, inspecting infrastructure and building facades and monitoring progress, potential quality concerns and work hazards.
Drones fit within the legal definition of aircraft, which means they are subject to FAA regulations. Unfortunately, regulations specific to drones, or unmanned aircraft systems (UAS) as the FAA calls them, do not yet exist. Congress included a mandate in the FAA Modernization and Reauthorization for the development of a regulatory structure to integrate drones into national airspace, but the FAA has been slow to develop those regulations.
In February, the FAA took the first step by releasing the highly anticipated Notice of Proposed Rulemaking (NPRM) entitled, “Operation and Certification of Small Unmanned Aircraft Systems.” Small unmanned aircraft systems are defined as drones that weigh less than 55 lb. The comment period, during which the public was prompted to give feedback on the proposed regulations, ended in April. More than 4,500 comments were submitted, and now the agency is considering them.
In the meantime, the only way to obtain permission to commercially operate drones is through an exemption which the drone operator must submit a petition for exemption from FAA regs that would otherwise prohibit the operation.
Seeking an exemption was initially lengthy and unpredictable, requiring a considerable amount of industry and agency resources.
This past spring, however, the agency streamlined the process, resulting in considerably faster results. Now, upon receipt of a petition for exemption, the FAA will automatically grant a blanket certificate of waiver or authorization (COA) for flights at or below 200 ft, if the aircraft weighs less than 55 lb, operations are conducted during daytime visual flight rules conditions and stay a certain distance from airports. After receiving the blanket COA, operators who want to fly outside those parameters are then eligible to apply for a separate COA specific to their operations.
The ability to seize economic opportunities afforded by advancing drone technology will be largely determined by compliance costs related to the FAA’s eventual regulatory framework, as well as potential liability under state laws. According to the National Conference of State Legislatures, in 2015 alone, state legislatures in 45 states have deliberated 164 different bills related to drones. Of those, 25 have become law across 19 states.
Plainly, there are hurdles to clear before flying a drone over a construction site, but so far those hurdles have not proved insurmountable to individuals and companies purchasing and operating drones. To date, more than 1,700 FAA exemptions have been granted, with over 150 of those exemptions specifically mentioning “construction” as an intended purpose of the drone operations.
Furthermore, there is plenty of anecdotal evidence that many individuals and companies are operating drones without government approval. This is a dangerous path to take, though, as evidenced by the FAA’s proposed $1.9-million fine on October 6 against a company that allegedly conducted 65 unauthorized commercial drone flights.
Just a Fad?
While the legal implications of commercially operating drones are still murky, the industry growth potential is undeniable. One indicator of market strength lies in investment data. CB Insights reports that $108 million was invested in the UAS industry in 2014 alone.
Additionally, the Association for Unmanned Vehicle Systems International (AUVSI) estimates that between 2015 and 2025, the cumulative economic impact of integrating drones into the NAS will be upwards of $82 billion—with total job creation over 100,000 and tax revenue to the states over $482 million. While these figures are speculative and will depend largely on the impact of federal regulations on commercial use of drones, the message is clear—the industry is ready to take flight. Are you?
Laura E. Vlieg is an associate of Obadal, Filler, MacLeod & Klein PLC, advising clients in international aviation safety regulation and government affairs. Vlieg has worked in various legal capacities for other law firms, trade associations and in-house, with an aviation services company.