The potential uses of unmanned aircraft systems (UAS) in the construction industry continue to expand as new technologies enter the market and construction companies realize UAS can perform unique tasks at tremendous cost savings. The full technological capabilities of UAS are, however, limited by law for public safety reasons. UAS share airspace with traditional passenger, military and cargo aircraft, and are potential hazards for humans below. The risk of potential catastrophic collisions has led to a careful approach to the adoption of this technology.

All U.S. airspace is exclusively regulated by the Federal Aviation Administration (FAA), and therefore, most drone regulation originates from this agency. Many states and localities have also enacted additional limits on UAS operations, and many of these nonfederal regulations are presently on unsure footing after a federal court ruling in Singer v. Newton invalidated a local regulation that conflicted with FAA regulations.

What is clear is that all commercial UAS operations must comply with FAA regulations. Any drone operation conducted by any private company, even through use of an employee’s personal drone, would constitute commercial operation subject to regulation.

Part 107 of the FAA Regulations is the body of authority which regulates commercial uses for drones weighing less than 55 pounds.  Part 107 sets forth clear operational rules that recognize that UAS are fundamentally different from other aircrafts. Almost all drone usage in the construction industry is conducted under this section. Key elements of the rules under Part 107 are as follow:

Piloting: All UAS must be operated by someone in possession of an FAA pilot license, or new “Remote Pilot Airmen Certificate.” This certificate requires that the operator:

• Be age 16 years or older;
• Pass a FAA administered aeronautical knowledge test;
• Pass TSA security vetting; and
• Complete testing to renew their certificate every two years. Due to COVID-19, FAA issued special regulations allowing testing to be conducted online as opposed to in testing centers.

Operation: The following restrictions are imposed on all flight operations:

• The UAS must weigh less than 55 pounds;
• Always be in visual sight (VLOS);
• Fly in Class G airspace;
• Fly under 400 feet (or 400 feet above structure);
• Fly between sunrise and sunset;
• Have an airspeed of 100 mph or less;
• Must yield right of way to manned aircraft;
• Must not fly over nonparticipating humans;
• Must have minimum weather visibility of 3 miles from control station;
• No operation is allowed from a moving aircraft;
• Must not fly from a moving vehicle (except in sparsely populated area); and
• Must not fly within five miles of an airport without prior approval.

Each of the above operation restrictions (but not piloting restrictions) may be waived by the FAA if a waiver is sought in advance by an operator who demonstrates a safe operation plan. Be aware, however, that waivers may take as long as six months to process. These waivers are not easy to obtain, and the vast majority are rejected by the FAA.

Can You Fly in Florida?

Given the Florida landscape, the biggest challenges for Florida construction companies flying drones at their project sites will likely be the prohibition of flying over nonparticipating humans, and the restriction on flights within five miles of airports.

The nonparticipating humans restriction is broadly construed. In fact, only the drone crew is considered a “participating human”. All members of the public and workers on the construction site-are considered “nonparticipating humans” and, therefore, sign a waiver for full compliance with FAA regulations.  Nevertheless, this is complicated by how the FAA defines “flying over” a nonparticipant. While flying directly overhead is clearly flying “over” a nonparticipant, the width of the path is largely viewed as a variable, depending on actual conditions, such as wind speed, height and speed of operation, size and type of drone, and other variable conditions. Accordingly, ensuring your drone is operated by a skilled pilot with current knowledge of FAA regulations, and flight risks, will minimize the risk that your drone is being flown illegally.

Most recently, a major contracting company using ParaZero’s Safe Air Parachute System, was able to obtain an FAA waiver allowing the operation of drones over nonparticipating humans. In securing the waiver, the contractor, in partnership with ParaZero, was able to demonstrate, through ParaZero’s testing data, the efficacy of ParaZero’s parachute system.  Although the FFA did not certify or approve a specific parachute system, it did state that this system is scalable and can be used by other applicants. Still, applicants seeking to acquire this waiver will be required to provide the testing data, documentation and a statement of compliance listed in ASTM3322-18 in their application using the same drone and parachute combination. This waiver represents the first time that the FAA has collaborated with the construction industry to develop a publicly available standard.

The requirement of notifying airports and air terminals when operating a drone within a five-mile radius also poses another logistical challenge. Fortunately, most commercial drone mapping systems will alert the pilot when an intended flight path will encroach on airport limits. Additionally, the FAA has launched a beta program, known as “LAANC,” which facilitates near real time automated processing of airspace notifications to airports of encroaching drone flight plans. This LAANC program has been rolled out in over 600 airports nationwide.  Currently, the following Florida airports are covered by LAANC: Brooksville-Tampa Bay Regional, Daytona Beach Airport, Jacksonville International Airport, Orlando International Airport, Gainesville Regional Airport Treasure Coast International Airport , Fort Lauderdale Executive Airport, Miami International Airport, Ocala International Airport, Orlando Executive Airport, Palm Beach International Airport, Punta Gorda Airport, St. Petersburg-Clearwater International Airport, Pensacola International Airport, Southwest Florida International Airport, Sarasota/Bradenton International Airport, Tallahassee International Airport, Miami Executive Airport, Dade-Collier Training and Transition Airport, Tampa International Airport, Vero Beach Regional Airport, Orlando Sanford International, and Fort Lauderdale International.

Lastly, privacy concerns of construction employees should be considered when using drones in a work site. The recordings generated by drones create a significant concern relating to infringement of workers’ reasonable expectations of privacy.  It is recommended to provide notice and obtain written consent and releases from neighbors, site visitors, and workers when drone usage is planned at a work site.

Whether your construction enterprise has an ongoing UAS program, or is just getting started, operators must first become fully knowledgeable and compliant with the Part 107 Rules to avoid running afoul of FAA regulations.