CBA Record Nov-Dec 2019

Y O U N G L A W Y E R S J O U R N A L

Commercial Drone Usage: A Risk and Liability Checklist By Brett Geschke

The commercial use of drones has gone sky high over the past five years. While dozens of industries use drones, the fastest-growing commercial adopters of aerial data are the construction, agriculture, and mining in- dustries, which saw 170% - 240% growth from 2017 to 2018. DroneDeploy, The Rise of Drones in Construction , June 7, 2018. PwC estimates the current value of labor and services susceptible to replacement by drones to be $127.3 billion. Truong, Drone Could Replace $127 BillionWorth of Human Labor and Services , Quartz, May 9, 2016. Project managers, technology managers, and even executives are analyzing drone data, photographs, and video footage on project sites. The use of unmanned aerial vehicles (UAVs) is on the rise from surveying land, to conducting surveillance, to tracking productivity. Commercial drone operatorsmust follow federal, state and local laws, as well as indus- try standards. Commercial drone use is regu- lated by the Federal Aviation Administration (FAA), specifically, Part 107 of the Federal Aviation Regulations. Drones must be reg- istered with the FAA; registration is valid for three years and costs $5 per aircraft. Pursu- ant to the National Defense Authorization Act, which overruled Taylor v. Huerta , 856 F.3d 1089 (D.C. 2017), an operator must label the drone with an FAA registration number. Additionally, a drone operator must obtain a remote pilot certificate from the FAA by passing an aeronautical knowledge test and undergoing a Transportation Safety Administration (TSA) security screening. Federal Law FAA regulations place a number of restric- tions on drone usage. They are designed to protect the safety of flight, people, and prop- erty. Incidents involving unauthorized and unsafe use of drones have risen dramatically, and the FAA regulations seek to directly curtail this trend. Drones must: • Be flown during daylight hours; • Have anti-collision lighting;

• Be kept within line-of-sight of the opera- tor, or a personal observer, and one op- erator or observer cannot be responsible for more than one aircraft at a time; and • Always yield to manned aircraft. Drones may not: • Be operated within 5 miles of an airport; • Be flown over anyone not directly par- ticipating in the operation; • Be flown under a covered structure or inside a stationary vehicle; • Be operated from a moving vehicle (un- less flown over a sparsely populated area); • Fly more than 400 feet above any struc- ture; • Exceed 100 miles per hour; • Cross state lines; or • Carry an external load in excess of 55 lbs., inclusive of the weight of the drone. Waivers may be sought from the FAA to operate a drone in violation of one of the technical requirements above, but requests are not always granted, and are not necessar- ily granted quickly. Waiver requests must be supported by a safe operation plan. As of 2018, the FAA had approved over 1,400 waivers for operations outside the parameters of Part 107 of the Federal Avia- tion Regulations. (Trock et al., The Use of Unmanned Aircraft Systems in the Construc- tion Industry in the United States and Canada: An Overview of the Applicable Frameworks , Journal of the American College of Con- struction Lawyers, Jan 2018, Vol 12, Issue 1.) State and Local Law In addition to understanding and comply- ing with federal law, a commercial drone operator must also consider state and local law. The Illinois statute (620 ILCS 5/42.1 – Regulation of Unmanned Aircraft Systems) states that regulation of an unmanned air- craft system (a drone) is an exclusive power of the state, as long as it does not conflict with federal law. However, this section does not apply to local ordinances enacted by a municipality of more than 1 million inhabitants, which includes Chicago. Case law discusses federal preemption and strikes

down local drone ordinances as being too strict or in conflict with FAA regulations. See Singer v. City of Newton , 284 F. Supp. 3d 125 (D. Mass. 2017). ChicagoOrdinance File # SO2015-5419 incorporates much of Part 107 of the Federal AviationRegulations but includes additional limitations. Drone operators cannot oper- ate a drone in the following situations or circumstances: • Over property not owned by the operator, unless with the property owner’s consent; • Whenever weather conditions impair the operator’s ability to operate the small unmanned aircraft safely; • Over any air assembly unit, school, school yard, hospital, place of worship, prison or police station without the property owner’s consent; • Within 500 feet of any water intake facility or any electric generating facility, substation or control center, or within 100 feet of any electrical transmission facility, or within 25 feet of any electronic distribution facility or overhead wire, cable, conveyor or similar equipment; • For the purpose of conducting surveil- lance, unless expressly permitted by law; • Under the influence of alcohol or other drugs; • Equippedwith a firearmor other weapon; • With intent to cause harm to persons or property; or • Recklessly or carelessly. The website Know Before You Fly (know- beforeyoufly.org) provides an airspace map that shows both permanent and temporary

36 November/December 2019