How to operate a drone for construction and not get sued

Updated Aug 21, 2015


There is no longer a question as to whether or not drones will impact the future of the construction industry. It’s already happening. Unmanned aircraft are in use on jobsites all over the world, will likely assist in the full-automation of heavy equipment and have even spawned a rental service that sends a pilot and drone to your jobsite for a low fee.

The only questions that remain, at least until the FAA issues its final ruling on commercial use of the aircraft, is whether or not your company should begin flying drones right now and how it can do so legally.

As to whether or not you should, the resounding answer we’ve heard from those who have already taken the deep dive into the technology is “yes.” As Blake Potts of Texas-based general contractor Rogers-O’Brien construction explained to us recently, the future of construction will involve drones at a very deep level. Best to start familiarizing yourself with the technology now rather than get beat to it by your competitors.

RELATED > How Rogers-O’Brien Construction deployed a drone fleet throughout its workflow

And as to the legal question, the following is likely the best answer you’re going to get on that front as things stand.

It comes from Jonathan Ziss, a lawyer with 30 years experience, with quite a bit of that in the aviation industry. He’s represented pilots, air carriers of all sizes and counsels commercial airlines in connection with industry-related consumer compliance and contractual matters.

And now, with the meteoric rise of drones in the last year or so, he’s become somewhat of an expert on the legal ramifications of the technology and how they’ll impact aviation.

Ziss recently spoke at the Associated General Contractors of America’s conference for construction IT professionals in Chicago and was able to sum up all of his legal advice for construction firms looking to implement drones—aka unmanned aerial vehicles (UAV) or systems (UAS)—on their jobsites into one sentence:

“You may not fly your UAS for commercial purposes without the express consent of the FAA.”

In other words, the Federal Aviation Administration has not yet issued official rules on commercial drone use and does not condone such use until then. “The UAS phenomenon has caught the FAA somewhat off guard. We were experiencing real turbulence last year with such things such as the definition of an ‘aircraft,’” Ziss explained. “The law didn’t anticipate UAS as an aircraft. There had to be litigation to work that out.”

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In February, the FAA released a set of proposed commercial drone rules which laid down the groundwork for public comment as it works to establish the final regulations. Ziss expects a year or more before the agency settles on such regulations. Therefore, the only 100-percent-legal way construction companies can operate the aircraft on their jobsites in the meantime is by obtaining a Section 333 exemption under the FAA Modernization and Reform Act of 2012.

You can begin the application process at the FAA website by clicking here.

As of this writing, the FAA had approved more than 1,100 of these applications, with a large chunk of those coming from construction or surveying companies. So if you apply, you’ve got pretty good odds.

Once granted, the exemption applies to a single operator and single drone. However, the exemption does apply over any number of jobsites. Those companies granted a legal exemption are given specific flight requirements in their individual exemption agreement, but to give you an idea of what the FAA currently sees as safe drone operation, here are the stipulations of its proposed rules:

  • Drone must weigh 55 pounds or less
  • Must be flown at speeds less than 100 mph
  • Operator must ensure the drone stays within his/her visual line of sight (VLOS)
  • A first-person camera cannot satisfy the VLOS requirement, but can be used as long as requirement is satisfied in other ways
  • Cannot be flown above 500 feet
  • Drone can only be flown when weather affords at least 3 miles visibility
  • Though a manned aircraft pilot’s license is not required, drone pilots must obtain a UAS operator’s certificate by passing knowledge test at FAA facility every two years, with TSA check
  • Drone itself must pass a quality inspection (Ziss sees this as being signified by a license plate or decal.)

And just in case you think your company’s use of drones doesn’t technically fall under commercial use since there’s not a direct tie to profit, think again, said Ziss. “A perceived gray area is profit, but any use of a drone in the course of business is commercial use of a drone,” he said.

Of course, that hasn’t stopped many companies from operating without an exemption. But, as Ziss explained, many of these companies have at least begun the exemption process and most of them are “keeping their heads down and managing to stay out of trouble without accidents.”

In the event that you do anger the FAA with unauthorized commercial operation, what might happen? Ziss says you’ll first be met with a cease-and-desist letter, which could be followed up with a lawsuit. But again, the FAA has only pursued legal action against operators whose piloting was putting people at risk of getting hurt.

And if you are granted an exemption, Ziss recommends considering getting insurance coverage for the aircraft. “Not every insurance agent or broker is conversant but make sure your risk managers pay attention to use of drones,” he said. “You can’t dabble with drones. You have to take it very seriously.”

With all of that said, Ziss doesn’t want to discourage construction firms from exploring the technology now. Citing the technology’s anticipated creation of 100,000 new jobs and $100 billion in economic activity by 2024, Ziss tells contractors “You want to be ready already.”