Industry Outlook: New FAA Rules Impacting the Use of Drones Over Construction Sites

By George Jiang, attorney
Eckert Seamans Cherin & Mellott LLC

Recent innovations in small, unmanned aircraft (more popularly known as “drones”) have given construction contractors the ability to cheaply and efficiently conduct site surveys, inspect otherwise inaccessible areas, monitor progress, aid in the early identification of potential deficiencies, and ensure that the project is completed on time and within budget. In response to the surging popularity in the commercial operation of drones, the FAA implemented new rules (1) addressing who is qualified to fly a drone for commercial purposes and (2) imposing operational limitations on the use of a drone. Accordingly, contractors that operate drones should be aware of the potential impact these rules may have on the way that drones can be used on construction sites.

The most significant constraint imposed by the new FAA rules is the requirement that all commercial drone operators must either obtain a remote pilot certificate or be directly supervised by a person who has obtained the certification. To obtain a remote pilot certificate, an applicant must pass an aeronautical knowledge test as well as a background check. Unlike the manned aircraft certification process, flight training is not necessary, and a practical examination in unmanned aircraft flight proficiency will not be administered.

Applicants with an existing pilot certificate for manned aircraft can obtain a remote pilot certificate if they have completed a flight review within the past two years and finish an online training course.

Commercial drone operators also must comply with new restrictions on how and when drones may be used. In particular, those considering using drones on construction sites should be aware that the new FAA rules prohibit a drone from being flown:

• Outside of the operator’s visual line of sight
• When visibility is less than three miles
• Less than 500 feet below a cloud or within 2,000 feet horizontally from a cloud
• At night
• Directly over people not directly participating in the drone’s operation
• Higher than 400 feet above either ground level or a structure, whichever is higher
• Without permission in controlled airspace

In addition, each drone must weigh less than 55 pounds, regardless of whether it is carrying a payload. The FAA also requires all commercial drones to be registered and marked.

The practical effect of the FAA’s new regulations for drone operations over construction sites can be significant. The visual line of sight requirement may limit the most potentially useful applications for drones, such as using a drone to inspect an inaccessible area from a vantage point that also is beyond the operator’s line of sight. It also may be impractical to use a drone on a busy site because of the risk that it will be flown above other people working on the premises, and the regulations make no exception for sites where people are required to wear hardhats. Furthermore, drones cannot participate in nighttime construction activities, and operators must be aware of whether the site is situated below or near restricted airspace, such as airports or other sensitive areas. In areas with inclement weather or low cloud cover, drone operations may effectively be grounded, even though the construction site itself is unaffected and visible to the drone pilot.

Fortunately, all of the significant operational restrictions listed above can be waived by applying for a certificate of waiver demonstrating that the proposed drone operation can be safely conducted. This request for a certificate of waiver must contain a complete description of the proposed operation and justification for why the operation can be conducted safely. Drone operators seeking a waiver should therefore consider offering to take specific precautions depending on the type of waiver requested. For example, a request for a waiver of the visual line of sight restriction could include a statement that the drone operator will be using reliable first-person-view technology to maintain full awareness of the drone’s location and surroundings. Similarly, a request for waiver of the restriction against operating drones directly overhead other people is more likely to be granted if it is accompanied by assurances that all personnel on the site will be forewarned about drone activities and are required to wear hardhats during the flight.

As the benefits of using drones for construction projects become increasingly clear, their presence at work sites will become the norm rather than the exception. Contractors should be mindful of any potential FAA restrictions that apply to any planned drone flights and make sure to apply for the proper waivers given the particular project at hand.

About the author:

George Jiang focuses his practice on commercial litigation and construction matters. He also possesses experience counseling clients regarding environmental matters and white-collar criminal defense. Before joining Eckert Seamans, George served as a judicial law clerk for the Hon. Nora Barry Fischer of the U.S. District Court for the Western District of Pennsylvania, and for the Hon. Brian L. Owsley of the U.S. District Court for the Southern District of Texas. In addition, he served as executive articles editor for the Journal of Legislation while he attended law school.

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