On June 28, 2016, the FAA published its final Rule for Operation and Certification of Small Unmanned Aircraft Systems (“SUAS Rule”). The SUAS Rule will take effect August 29, 2016, and applies to the use of drones for business purposes, including their use on construction sites.

The SUAS Rule replaces the current system of waivers, establishes a system to certify and register drone pilots and places restrictions on drone operations. The SUAS Rule actually relaxes current restrictions in some ways, because it allows non-pilots to become certified Remote Pilots in Command (“RPiC”) with the proper training. Prior to this Rule, only existing part 61 certified pilots with waivers could operate drones for business purposes. The SUAS Rule does not address issues of privacy or other property rights related to drone use.

Who Can Operate Drones

All business drone operators must be certified as an RPiC. In order to become an RPiC, a non-pilot must pass an aeronautical knowledge test at an FAA-approved testing center. The FAA is establishing the tests and testing guides for certification of RPiCs and anticipates this information will be available on August 29, 2016. A list of testing centers can be found on the FAA’s website. Pilots with current part 61 certification can apply directly for RPiC certification without additional testing.

All drone operators must be 16 years old or older and must be vetted by the Transportation Security Administration. Existing part 61 pilots will obtain temporary certification upon submitting their application. Other applicants will obtain a temporary certification after the TSA vetting process is complete. Holders of current Certificates of Waiver obtained under the FAA’s interim rule can continue to operate their drones under those Certificates until they expire.

Basic Restrictions on Drone Operation

The SUAS Rule imposes restrictions on drones and their operation. The drone must be registered with the FAA if it weighs over .55 pounds, and it cannot weigh more than 55 pounds. The RPiC must complete a pre-flight inspection. Among other restrictions, generally drones may not be flown:

• at night,
• more than 400 feet above ground level,
• in excess of 100 miles per hour of groundspeed,
• outside of the RPiC’s visual line of sight,
• over persons not participating in the operation or protected by a building or covered vehicle,
• when visibility is less than 3 miles, or
• from a moving vehicle or aircraft unless in a sparsely populated area.

Also, drones must always yield to manned aircraft. Most of these restrictions can be waived with FAA approval upon application and proof the drone can be operated safely.

Geographic Restriction on Drone Operation

The restriction most likely to be problematic for drone use on construction sites is the need for permission from Air Traffic Control to operate in controlled airspace (Class B, C, D, or E). Controlled airspace is typically broader than over and adjacent to airports. For example, the vast majority of the Denver metro area is within controlled airspace. RPiCs will receive information on determining whether their flight path is in controlled airspace as part of the testing and certification process. The FAA’s “B4UFLY” smartphone app, while designed for recreational users, will also provide information regarding when an operator is in controlled airspace.

Operation in controlled airspace without permission is prohibited. Obtaining permission is the equivalent of a pilot notifying Air Traffic Control of his or her presence and getting instruction for passage through the airspace. RPiC’s may apply for permission using the FAA’s web portal, which will be available August 29, 2016. Air Traffic Control has discretion whether to grant permission for drone flight and is not required to do so. Operation in uncontrolled airspace (Class G) is allowed without Air Traffic Control permission.

Violating these rules or operating a drone in a careless or reckless manner may subject operators to civil penalties of up to $27,500 and criminal penalties of up to $250,000.

Privacy

Outside of regulatory compliance, the primary legal concern over otherwise safe drone use is privacy and property right violations. The SUAS Rule does not include any privacy regulations. The FAA considered adding privacy regulations, but chose not to in part because doing so was beyond its mandate from Congress, constitutional concerns and concerns over conflict with existing state laws. The various States administer privacy and trespass laws which apply to drone use. Care should be taken when operating a drone not to violate others’ privacy or property rights, or users could be subject to civil penalties or damages from private lawsuits.

While it does not regulate privacy, the SUAS Rule references and encourages compliance with the National Telecommunications and Information Administration’s Voluntary Best Practices for UAS Privacy, Transparency and Accountability. These practices include providing notice to others, such as adjacent property owners, of the time and place you will be using the drone, why you are using a drone, what data you will collecting, how that data will be stored and with whom the data will be shared. While not legally enforceable or a guarantee against liability, following these guidelines may help reduce the privacy and property right risks of drone operation.

As August 29 approaches, the FAA will publish additional information and continue to set up the infrastructure for legal business drone use. It is also likely lawsuits will progress through the courts to define what drone use violates privacy or property rights. In the meantime, care should be taken to understand the rights of property owners and others adjacent to construction sites where drones are in use, and obtain appropriate insurance coverage.