Ed. Note: This was originally published in the The Resource, the newsletter of the Construction Professionals Network of North Carolina, on September 10, 2015. It also appears on their blog.
It is clear that the construction industry understands that drones may be an effective new tool in the contractor toolbox—for marketing, job progress documentation, inspections, communication with the owners and architects, and job site safety, to name a few possibilities. What individual contractors might not fully understand, however, is what laws and rules currently govern the use of drones for business purposes, and how to ensure that drone use on the construction site is legal.
While you consider how you may one day integrate drones (also called “unmanned aircraft systems” or “UAS”) into your business, here are six things to keep in mind:
(1) “Generally, it is against the law to operate a drone other than as a hobbyist.”
There are currently two types of UAS use defined by the FAA, “hobbyist” and “all other.” Thus, if your operations are not in strict conformity with all of the “hobbyist” restrictions and criteria, including not using the drone for business purposes, then you fall under the “all other” category. Of course, any drone use by a business at a construction site is going to fall outside of the “hobbyist” category, which means that, under federal law, UAS operations at a construction site will be unlawful unless the FAA has specifically granted your business permission to use drones.
North Carolina law similarly divides operations into the same two categories, which is important because the North Carolina UAS statutes prohibit certain activities (discussed below) for UAS operators who are not hobbyists. (North Carolina law uses the term “model aircraft” and defines it in the UAS statute as aircraft “flown solely for hobby or recreational purposes” such that it is not “used for payment, consideration, gratuity, or benefit, directly or indirectly charged, demanded, received, or collected, by any person for the use of the aircraft or any photographic or video image produced by the aircraft.”)
(2) “But, the FAA has a process to grant limited permission for drone operations, including at construction sites.”
The FAA has a mechanism by which it grants permission to businesses and individuals to allow commercial drone operations. This so-called “Section 333 Exemption” process has resulted so far in approximately 1,500 Exemptions, including some to members of the construction industry. Since April, the FAA has been granting Section 333 Exemptions at a faster pace using a streamlined “summary grant” process. Under this process, if the operations proposed in are not materially different from operations that have already been the subject of an Exemption, the FAA will grant the petition without subjecting it to public comment. Of course, even under the summary grant process, the FAA will continue to review each petition individually; without a review, the FAA would be unable to determine whether the proposed operation is, in fact, substantially similar to one already granted. For UAS flights that will exceed 200 feet above ground level, the holder of a Section 333 Exemption must make an additional filing with the FAA in order to obtain a “COA” (certificate of authorization), and all drone operations that will occur within 5 miles of an airport or heliport will need to obtain specific authorization from the airport itself to engage in the operations.
(3) “You are going to need a pilot to fly the drone.”
To date, all FAA exemptions have required that the operator hold an airman certificate. While the grants issued during the period from September 2014 through February 2015 required the operator to have at least a private pilot airman certificate, the FAA now routinely permits operation of UAS (under an Exemption) by persons with recreational pilot or sport pilot certificates. The FAA has repeatedly made it clear, however, that it does not believe it has the authority to permit operation of aircraft (unmanned or otherwise) by a person without an airman certificate. The FAA’s proposed UAS rules would establish a new airman certificate for UAS operators. Thus, any construction industry professional who wants to incorporate drones into their business operations will either need to have a pilot on staff or contract with a party who has a pilot on staff to perform UAS flights.
(4) “No matter who is flying it, you’d better be concerned about the privacy rights of those you fly over.”
Nationally, the privacy implications of UAS use are far from resolved, but North Carolina law specifically restricts all persons and entities (including state agencies) from using UAS to conduct surveillance of a person or without his or her consent or on a piece of property without the owner’s consent. It is also illegal in North Carolina to photograph someone for commercial purposes using a drone without that person’s consent; while the law provides an exemption for newsgathering organizations, there is no exemption for construction companies. Drone operators that are found to have violated these privacy protections in North Carolina could be liable to the tune of $5,000 for each instance plus attorney fees.
(5) “North Carolina is ahead of the curve, regulating actions and uses of UAS that other states haven’t addressed.”
With the recent increase in reports of authorized UAS use hindering firefighters, disrupting commercial aircraft and generally causing a nuisance, a growing number of states and municipalities are weighing their own use guidelines and restrictions while awaiting the final FAA rules. North Carolina remains a leader in this area. In addition to the privacy protections referenced above, North Carolina laws specifically prohibit certain UAS-related conduct, including the following:
(a) The launch or recovery of a drone from any State or private property without the consent of the landowner
(b) Attaching a weapon to a drone
(c) Using drones to fish or to hunt or to interfere with the lawful taking of wildlife
While construction professionals are unlikely to be interested in the use of drones for hunting or fishing or for the purposes of weaponization, the landowner consent provision may be an important consideration at certain locations.
(6) “Both patience and knowledge are required for commercial UAS operations.”
In North Carolina, state law requires commercial drone operators to pass a “knowledge test”—which will cover certain aspects of North Carolina’s drone laws—and secure a permit prior to engaging in commercial operations, even after the operator already has secured FAA authority for UAS operations. As of the date of publication of this article, North Carolina has not yet implemented its knowledge test or permitting process, which begs the question whether commercial operations are allowed in North Carolina at all at the current time. Fortunately, one of the key revisions in the latest North Carolina UAS law (passed in August 2015) clarifies that if a UAS operator has FAA authority to commence operations (for example, pursuant to a Section 333 Exemption), it is OK to go ahead and being operations in North Carolina despite the fact that the knowledge test and North Carolina permitting process are not yet available.
Brooks Pierce attorney Stephen Hartzell advises clients in UAS-related matters including compliance with FAA, state operational and licensing regulations, Section 333 Exemption requests, contractual and intellectual property issues, and drone-related privacy issues. He welcomes UAS conversation, and can be reached at email@example.com.