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COLORADO REAL ESTATE JOURNAL
— December 2-December 15, 2015
experience
direction
BKD National Construction & Real Estate Group
Law & Accounting
P
ick up the newspaper
or visit your favorite
news
website
on
any given day and there will
be a drone story – good or
bad. From drones being used
beneficially for search and rescue
purposes to drones being used
irresponsibly to interfere with
firefighting operations, what
once seemed the stuff of science
fiction is quickly becoming part
of everyday life. The commercial
use of drones, also referred to
as unmanned aircraft systems,
is soaring with potential
applications seemingly limited
only by the user’s imagination
and current regulations.
The construction industry has
been an early adopter of UAS
with companies such as Bechtel,
and Burns &McDonnell moving
quickly to identify opportunities
to integrate drones into their
projects. Companies of all sizes
are quickly recognizing that
drones can be used to save time
and money and improve worker
safety. Proven applications
include: 3-D site surveying and
mapping; collection of real-
time construction progress data
and imagery; weekly or even
daily site maps to coordinate
material deliveries, equipment
movement and subcontractor
activities; inspections of complex
or hard-to-reach structures;
worker safety audits; and project
closeoutphotography– to list just
a few. To realize the full potential
of drones as construction tools,
an understanding of the existing
and evolving federal and
state regulatory framework is
essential.
The first step is to understand
that, under federal law
unmanned aircraft are just
that, aircraft, and appropriate
authority is required before
operating them commercially in
the National Airspace, which the
Federal Aviation Administration
regulates from the ground up.
Under current law, the most
common form of approval to
operate a small UAS (sUAS)
(i.e., one weighing 55 pounds
or less) for commercial purposes
is to obtain an exemption under
Section 333 of the 2012 FAA
Modernization and Reform
Act, which directed the FAA to
establish rules for integrating
sUAS into the NationalAirspace.
In general, a Section 333
e x emp t i o n
requires infor-
mation con-
cerning the
specific UAS
to be used, a
description of
how the UAS
will be used,
a discussion
of the specific
FAA regula-
tions
from
which
an
exemption is
sought, and
an explana-
tion of how and why the exemp-
tion will not harm public safety.
If granted, the exemption will
include several conditions and
limitations on UAS operations,
including: the UAS may not
fly higher than 400 feet above
ground level (AGL); it must
be flown only during daylight
hours; it must remain within
the unaided visual line of sight
(VLOS) of the operator at all
times; it may not fly within five
miles of an airport and must
remain clear of manned aircraft;
it may not fly over people not
involved in the UAS opera-
tion; and it must be flown by
a licensed pilot. In addition to
the Section 333 exemption, the
company must also obtain a Cer-
tificate of Waiver or Authoriza-
tion, which coordinates the UAS
operation with local air traffic
control authorities. A “blanket”
COA is issued with the exemp-
tion allowing UAS operations
up to 200 feet AGL anywhere in
the United States not otherwise
prohibited. For operations above
200 feet AGL, a specific COA
must be obtained.
While these conditions and
limitations may seem burden-
some for some commercial
applications, arguably they pose
less of a burden for construc-
tion applications. For example,
the 200-foot AGL limit may be
sufficient for many construc-
tion projects. Where a higher
operational altitude is required,
the need for a site-specific COA
can be factored into the project
plan and is likely to be readily
granted given that the project
site already involves significant
vertical structures such as cranes
and the building itself, which
manned aircraft must avoid. The
VLOS requirement also presents
less of a challenge given that
UAS operations are confined to
the project site and the drone
can be operated safely around
structures by coordination
between the UAS pilot and the
visual observer required under
the current rules. As of Nov. 6,
2,213 Section 333 exemptions
have been granted for commer-
cial operations in a wide variety
of industries. Of the first 1,000
exemptions issued, 134 were to
construction companies or con-
struction industry service pro-
viders.
These numbers are likely to
increase in 2016 when the FAA
is expected to issue its final rules
for the “Operation and Certifica-
tion of Small UnmannedAircraft
Systems.” The proposed rules
are expected to allow sUAS
operations up to 500 feet AGL
and will no longer require a
pilot's license but rather a UAS
operator certification. These and
other aspects of the proposed
rules are expected to make com-
mercial sUAS operations more
accessible, more quickly.
As the federal regulatory
framework is taking shape with
a particular focus on safety, state
laws are rapidly adapting to this
new technology with a particu-
lar focus on property rights and
privacy issues. According to the
National Conference of State
Legislatures, 45 states have con-
sidered 168 drone-related bills
in 2015 alone (including two in
Colorado), and 20 states have
enacted some form of drone-
related legislation.
Property rights issues related
to drones center on the extent of
a landowner’s rights in the air-
space above his or her property.
In the 1946 case of Causby v.
United States, the U.S. Supreme
Court stated, “The landowner
owns at least as much of the
airspace above the ground as
he can occupy or use in connec-
tion with the land.” The court,
however, declined to establish
a specific altitude for the extent
of the landowner’s rights, thus
leaving this question for a case-
by-case, factual determination
by the courts or definition by
state law. While this uncertainty
may be problematic for com-
panies planning to use drones
for delivery of various consumer
Thomas J.
Dougherty
Partner, Lewis Roca
Rothgerber LLP,
Denver
370 17th Street, Suite 4800 | Denver, Colorado 80202
303.825.080
James L. Kurtz-Phelan - Real Estate Practice Chair
Real
Estate
Attorneys
with
Rea l
Experience
Our national real estate practice
is focused on the evolving
needs of clients.
We advise on current positions,
opportunities, and complex
transactions in:
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For more information, please call
Beverly Quail at 303.292.2400
