Until this past Fall there was some uncertainty regarding the commercial use of drones, specifically the use of drones in construction. As of late, there have been many legal challenges to the use of drones in construction, including non-registration of drones, invasion of privacy concerns, drone use in restricted areas, potential nuisance claims, and property damage claims caused by wayward drones.

In addition, the requirement in many states is that land surveying work be performed by licensed land surveyors, but drones used for land surveying in construction are often not operated by licensed land surveyors. This is a gray area that will need to be addressed by statute, regulation or case law in each jurisdiction.

Garret Murai, of Wendel Rosen as well as Construction Practice Group co-chair and editor of California Construction Law Blog, sat down with Inside Counsel to discuss the rise of drones in the construction industry and the legal impact surrounding it.

According to the U.S. Federal Aviation Administration (FAA) there were about 42,000 commercial drones in the U.S. in 2016, of which 26 percent were used in construction. While that's a lot of drones, for the FAA, the commercial drone sector is still at an early stage of growth and the number of commercial drones flying above us is expected to increase ten-fold over the next few years to 420,000 commercial drones by 2021. The increasing use of drones in the commercial sector was given a lift when the FAA released its anticipated Small Unmanned Aircraft System regulations. The regulations, which apply to commercial drones, require commercial drones to be registered through FAA's Small Unmanned Aircraft System (sUAS) Registration Service, require FAA certification of UA (unmanned aircraft) pilots and set forth detailed requirements governing the operation of drones.

How does the construction industry legally benefit from using drones?

Per the FAA, drone use in the construction industry falls only behind the use of drones for aerial photography (26 percent vs. 34 percent), although, as one might expect, the construction industry also uses drones for aerial photography as well as for much, much more.

“While the use of drones in the construction industry is still relatively new and will likely expand as new commercial products are developed, today, owners and construction companies have utilized drones to survey project sites, to inspect and track the progress of a construction project, and with the right tools, to turn collected data into topographic maps, to aid in volumetric measurements of stockpiles and to create 3D models,” he explained.

The bottom line benefit for owners and construction companies is that drones can provide information quickly, more frequently and at a fraction of the cost of traditional methods such as manual surveying and aerial photography and can help construction projects run more efficiently, safely and at lower cost, according to Murai.

The most recent data from the U.S. Department of Labor shows that there were 154,000 open construction jobs in the U.S. as of May 2017. While this is below the cyclical high of 238,000 open construction jobs as of June 2016 there continues to be a pronounced labor shortage in the construction industry. Although the construction industry has been on a rebound since 2012, many workers who were forced out following the 2008 real estate crash.

“While efficiency and cost savings have been the primary drivers of the use of drones in the construction industry, with the current construction labor shortage, drones have had the added benefit of allowing fewer people to do more,” said Murai.

According to the U.S. Occupational Safety and Health Administration, one in five worker deaths were in construction. The vast majority of these (38.8 percent) were the result of falls. While they have yet to develop a drone that can perform actual labor, drones can increase worker safety by allowing construction companies to monitor and inspect projects with a degree of detail that would have been impossible before.

He said, “With drones, construction companies can inspect high-up and hard to reach areas of a project and can monitor project sites to ensure that workplace and worker safety standards and regulations are being followed.”

There are key findings that came out of the FAA's drone regulations last September that relate to the construction industry, according to Murai. First, commercial UAs weighing 0.55 pounds up to 55 pounds must be registered through the FAA's sUAS Registration Service. UAs weighing over 55 pounds must seek an exemption from the FAA. Secondly, UAs may only be controlled by a UA pilot certified by the FAA or by someone under the direct supervision UA certified pilot. To become a UA certified pilot a person must either pass an FAA-approved aeronautical test or hold a Part 61 pilot certificate, complete a flight review within the previous 24 months, and complete a UAS online training course. Lastly, UAs may only be operated during daylight or civil twilight hours with anti-collision lighting, may not travel faster 100 mph or fly higher than 400 feet above ground level or within 400 feet of a structure, and UAs may only be flow when there is a minimum weather visibility of three miles from the control station.