It’s a bird, it’s a plane, it’s … a construction drone. Government regulations are still catching up to elusive flying machines.2020-04-23T00:25:18+00:00
09.11.2014 // CONSTRUCTION LAW WATCH
It’s a bird, it’s a plane, it’s … a construction drone. Government regulations are still catching up to elusive flying machines.

Unmanned aerial vehicles (UAVs), commonly called drones, are frequently in the news and gaining popularity on the jobsite.  Architects, engineers and contractors are exploring ways to easily document and map building construction progress and quality control with the ease of monitoring by UAVs.  Despite their rising popularity, the laws and regulations surrounding the use of UAVs remain unsettled.  While on the cusp of this exciting technology, architects, engineers and contractors ought to coordinate closely with other project participants, and their own insurance companies, before deploying and using UAVs in a project.  It is an open question whether any use of a UAV is legal, or free from risk, while the responsible government agencies sort out the regulations and jurisdictional issues.

For now, the FAA requires commercial UAV flight to be flown by an FAA-certified device, with an FAA-certified operator.  The FAA has been working to implement the provisions of Section 333 of the FAA Modernization and Reform Act of 2012, which requires the FAA to state regulations permitting the commercial use of UAVs.  A full set of regulations remains forthcoming, however, and is due in 2015.  Currently, companies such as movie studios and others are applying for special exemptions or certifications in advance of a broad, prescriptive authorization for use.

Several administrative and regulatory cases have arisen of late regarding UAV use.  In the recent matter of Huerta v. Pirker, the FAA fined Raphael Pirker $10,000.  The FAA alleged that Mr. Pirker deliberately operated a UAV at low altitude around the University of Virginia, interfering with people walking around, and within 100 feet of a heliport, in violation of 14 C.F.R. § 91.13(a).  Mr. Pirker appealed this to an Administrative Law Judge with the National Transportation and Safety Board, and the ALJ vacated the fine against Mr. Pirker on the basis that the FAA did not have the jurisdiction to regulate the UAV flight.  The FAA has now appealed that decision to the full National Transportation Safety Board.  The briefing for this can be found here.

The case ultimately turns on questions to be decided about the extent of the FAA’s jurisdiction over “aircrafts,” whether that applies to the UAV in question, and what regulations should govern UAV flight.  Until the issue of applicable regulations and jurisdictional questions are sorted out, architects, engineers and contractors should carefully consider current federal and state law and project participant preferences before deploying UAVs on their projects.

Another consideration is insurance.  Several general liability insurance policies may treat aerial operations differently than general construction activities.  Contractors may be surprised to learn that, should property damage or other injury arise from their use of a UAV, their insurer may very well argue they had gotten into the aircraft business and their actions may not be insured.  Architects, Engineers and contractors may need additional endorsements to confirm they are covered for their reasonable use of UAVs.

Ultimately, there does not appear to be a debate that UAVs can be useful, that the regulations affecting them will be sorted out by one agency or another, and that architects, engineers and contractors will be able to use them on their projects.  But while the wrinkles are worked out, architects, engineers and contractors should consult with their project partners to determine the optimal use of this new resource.

ABOUT BALL JANIK LLP

Ball Janik LLP was founded in 1982 with six lawyers and a four-person support staff in Portland, Oregon. Since our firm’s inception, we have expanded our capabilities, our professionals, and geographic footprint. What started as a firm focused in real property and land use (known then as Ball Janik & Novack), has grown to include the insights of a team of 30-plus attorneys, with a combined six centuries of experience, and capabilities including Real Estate and Land Use, Construction Defect, Commercial Litigation, Insurance Recovery, Construction and Design, Employment, Finance and Corporate, Public Agencies and Schools, and Community Associations. With offices in Florida and Oregon, our regional growth has earned us a national reputation for upholding the rights of our clients.

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Heather J. Oden
Oregon , Portland
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