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  • Construction & Public Contract Law Section Blog
    September 30, 2021

    Sky is the Limit for Drone Use in Construction

    Drones can be useful tools in construction. In this article, John Schulze outlines the laws that govern drone flying and offers advice for their use in construction.

    John J. Schulze

    Drone flying

    Technology has made drones less expensive and more powerful. Thus, they are more prevalent today, as both a pastime and a key component of some businesses, including those in the construction context.

    Federal, state, and local units of government license and regulate Unmanned Aircraft System (UAS) use, and violations can be subject to state and federal civil and criminal penalties.

    In Wisconsin, a drone – technically known as an Unmanned Aircraft System or UAS – is generally defined as “an aircraft operated without the possibility of direct human intervention from within or on the aircraft.”1 To qualify as a UAS, an onboard camera or recording device is not required.

    The Federal Aviation Administration (FAA) regulates UAS through its authority over the national airspace.2 All UAS users are required to pay $5 for a three-year registration and must also provide their email and physical address, UAS make and model, and a credit or debit card.3

    Like a drivers’ license, UAS users must carry their FAA regulation certificate and proof of ownership either physically or digitally when they fly their UAS. They must also show the certificate to any federal, local, or state law enforcement officer upon request.

    The UAS must always display an identification number. As with a drivers’ license, the registration is connected to the individual, not the UAS. Thus, multiple people operating the same UAS would each need to register with the FAA and pay the required fee.

    A UAS weighing more the 55 pounds, including payload like a camera, has additional registration requirements.4

    Separate rules exist for recreational, educational, governmental,and commercial UAS use.

    This blog post focuses on commercial use, defined as any UAS flight that promotes a business in any way.5

    Commercial Drone Use

    All commercial drone flights must be conducted by someone with a Remote Pilot Certificate from the FAA. To get certified, one must pass an exam on aircraft operations, airspace and requirements, drone regulations, weather, and loading and performance. This certification must be renewed every two years.

    John Schulze John Schulze, Marquette 2004, is the director of legal and government affairs for Associated Builders and Contractors of Wisconsin in Madison, a construction trade association.

    Although federal drone law preempts state law, the State of Wisconsin and some municipalities have passed additional rules and regulations.

    Drone Use Prohibitions

    Municipalities may restrict where UAS can be operated, but cannot suspend or revoke a certification/license.6 For example, some Wisconsin communities prohibit drone use over parades, festivals, and other public gatherings.

    In addition to FAA temporary flight restrictions (presidential movements, emergency situations), UAS cannot be flown:7

    • above 400 feet;

    • within 5 miles of any military facility, airport or landing strip without permission;

    • within 3 miles of stadiums one hour before and one hour after the scheduled time of any Major League baseball game, National Football League game, NCAA Division One football game, NASCAR Sprint Cup race, Indy Car race, or Champ Series race;

    • over a correctional facility, including prison or jail; and

    • in Wisconsin state parks, recreational areas, natural areas, Kettle Moraine, Point Beach state forests, and the lower Wisconsin state riverway. The one exception is the Richard Bong State Park Special Use Zone.

    Other Limitations

    Additional limitations include that UAS: 8

    • can only be flown during daylight hours9 and must yield to all manned aircraft;

    • cannot be flown near wild animals, or impede, obstruct, or harass a person engaged in hunting, fishing, or trapping;10

    • cannot be operated recklessly, including operating a drone while under the influence of drugs, an intoxicant, or with a prohibited blood-alcohol content of 0.04; and

    • cannot be weaponized.

    Drone Use in Construction Context

    UAS are used in many ways in construction, including surveying and topical mapping, monitoring job sites, equipment tracking, and showing clients project progress.

    Some contractors are even incorporating UAS into their safety programs for fall prevention and job site incident evaluations. They are especially helpful in accessing dangerous or otherwise inaccessible areas.

    UAS also assist in locating utilities and orienting pipelines and railways as well as bridges and buildings.

    Practical Considerations for Drone Use

    • Practice, practice, practice. Flying a UAS can be fun, but it is not a toy. Learn to operate your UAS safely.

    • Get permission from the property owner when operating a UAS. In most cases, a contractor will be using a UAS on behalf of a customer or owner on their property, so it should not be an issue. However, flying UAS over private land or water is lawful in Wisconsin unless it is at such a low altitude as to interfere with the property’s existing use, or would be considered dangerous or damaging to the persons or the property.11 Even then, any regular reckless, negligent, inappropriate or harassment by a UAS could be unlawful under existing Wisconsin law, and a pilot would also be liable for any damage the UAS caused to people or property.

    • Also, using a UAS to photograph, record, or observe an individual or place where there is a reasonable expectation of privacy is prohibited without written consent. The landing of a UAS on someone’s property without their permission would likely be considered trespassing unless involving a forced landing.

    • Inform all workers on a job site that drone use is authorized. Especially on a large job site, a worker may be concerned about prohibited surveillance and notify law enforcement or take it upon themselves to ground the UAS.

    • Keep your UAS within your visual line of sight.

    • Review local, state, and federal airspace restrictions before flying a UAS.

    • Work with your insurance broker to find the program or coverage that works best for your anticipated UAS usage.

    Drone Use Going Forward

    Currently there are about 900,000 UAS registered with the FAA and likely many more unregistered (Almost 350,000 of these are used in the commercial context). Many of these are used in construction. Their presence in construction will certainly grow.

    As drone technology develops, UAS use by businesses grows, especially in the building trades. With increased UAS use, problems and complications will also be more common. For example, over the last decade, UAS have injured bystanders, halted airline traffic, been unlawfully used to spy on third parties, and have crashed into the Golden Gate bridge at least five times.

    Growth in popularity invites ever-expanding laws.Increased use brings more pervasive restrictions and greater penalties for misuse.12 In Wisconsin, there is a penalty enhancer for committing a crime with a UAS in addition to the underlying penalty.

    Oversight of drone use in construction has also increased. For example, some states have passed, or are considering, legislation to protect critical infrastructure like wastewater treatment facilities and electric utilities.

    Conclusion: Keep Up-to-date

    Lawyers who represent builders, owners, and others in the construction context would be well-advised to become acquainted with and stay on top of the very fluid and developing area of drone law.

    This article was originally published on the State Bar of Wisconsin’s Construction and Public Contract Law Section Blog. Visit the State Bar sections or the Construction and Public Contract Law Section web pages to learn more about the benefits of section membership.

    Endnotes

    1 Wis. Stat. § 114.105(1)(a). See also Wis. Stat. § 941.292 (stating “drone" means “a powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. A drone may be expendable or recoverable).

    2 14 CFR Part 107.

    3 14 CFR Part 48.

    4 49 U.S.C. § 44807.

    5 14 CFR Part 107.

    6 81 FR 42603.

    7 See FAA Advisory Circular 91-63D, Temporary Flight Restrictions (TFR) and Flight Limitations. See also Wis. Stat. § 114.045.

    8 Wis. Stat. §§ 114.002 -114.019.

    9 “Daylight hours” is defined as a half hour before sunrise to a half hour after sunset.

    10 Travel, camping, scouting, target shootings, dog training, animal baiting or feeding, and other related acts are included under this activity.

    11 Wis. Stat. §§ 114.03 & 114.04.

    12 Wis. Stat. § 114.045 (2).





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    The Construction & Public Contract Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Lauren Triebenbach and review Author Submission Guidelines. Learn more about the Construction & Public Contract Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2021 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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