Drones have made a dramatic entry into the A/E/C community over the past couple of years—producing great interest, but also raising some legal and regulatory concerns.

While the Orwellian interpretation of “Big Brother always watching” tends to conjure up menacing imagery, technological advances in drones are being utilized at construction job sites to improve safety, promote design accuracy and construction quality, and deliver myriad other benefits.  Sometimes called unmanned aerial vehicles (UAVs), drones have made a dramatic entry into the A/E/C community over the past couple of years—producing great interest, but also raising some legal and regulatory concerns.  The January 2015 crash of a drone on the White House lawn captured the attention of the entire nation, bringing to light legal challenges for both personal and commercial use of drones. Being an early adopter of the technology, the construction industry has also grappled with a mix of benefits and challenges attributed to the commercial use of drones.

Since its advent, the use of drone technology in the construction industry has grown steadily as general contractors, owners, and design professionals have employed UAVs on large-scale construction projects.  The adoption of these devices in the construction industry is expected to increase dramatically as the technology improves and becomes less expensive.  In fact, research lists the construction industry as the top potential market for drone use in the future, with Goldman Sachs predicting total spending of over $13 billion on drones for civil and/or commercial use from 2016 to 2020.  Here’s how some of that money is being put to use:

Design professionals are using drones to collect more accurate topographical information to use in conjunction with land surveys.  This could reduce the margin of error on project designs by having more data and quality checks on the construction site.  Firms are also hoping to use drones to carry materials, and perhaps even transport them from one site to another.

General contractors, for their part, are using UAVs to monitor projects while improving worker safety. Rather than enlisting the help of a crane or dangling employees at dangerous heights to inspect areas of the project, many contractors are instead using drones.  This gives the contractor a real-time look at the work’s progress, which can be shared with the owner without interrupting production.  Additionally, using drones to survey hazardous sites and locations while safely on the ground can curtail safety-related injuries on the job, which in turn could lead to lower insurance rates and increased company profits.

While there are scores of benefits to using UAVs on jobsites, each owner should conduct its own due diligence to ensure regulatory compliance before adding a drone to the company toolbox.  This can be tricky, as regulations exist at federal, state, and local levels, and the rules continue to evolve as commercial drone use becomes more widespread.

This year’s state legislative session saw the introduction of six separate drone-related bills.  Of these, HB 1643 and HB 1424 passed, amending Chapter 423 of the Texas Government Code, which regulates UAV operation.  The bills added to the growing list of “critical infrastructure facilities” that are illegal to fly over as defined in Chapter 423.0045 of the Texas Government Code.  In addition to power plants, ports, and refineries, the “no-fly zone” list now includes correction/detention facilities, sports stadiums, cell towers, and oil and gas drilling sites, among others.  If convicted, first-time offenders are subject to a Class B misdemeanor, while repeat offenders may receive a Class A misdemeanor.

There are, however, several noteworthy exceptions.  For example, as of September 2017, anyone who is under contract with or acting on behalf of the state or federal government is exempt from criminal liability for drone use near critical infrastructure facilities.  This is good news because construction work performed on or near “critical infrastructure facilities” will typically arise under a contract between the state and builder or design professional.  That said, it is prudent to double-check the rules on a case-by-case basis to avoid unintended legal consequences when operating a drone.

While the remaining bills did not pass Texas’s 85th legislative session, the issues raised in them shed light on current conversations and unsettled issues surrounding drone use.  We expect to see continued debate over privacy, surveillance, safety, governmental entities’ power to regulate drone operation, and parties or purposes to be exempted from regulation altogether.

Although the industry is only in the early stages of drone use, the relationship between UAVs and construction carries massive potential benefits—though not without challenges.  Those interested in utilizing this technology must pay attention to the details and ensure regulatory compliance at all levels.  If you do that, the sky’s the limit.


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