Operating work site drones yourself can have costly pitfalls

Drone site imageThe drone industry is so new and expanding so rapidly that there are too many potential pitfalls to list; pitfalls that can cost an innocent violator many thousands of dollars in court costs, lawyer fees and fines levied by the Federal Aviation Administration, which has defined drones as “aircraft” and strictly governs drones used for anything other than “purely hobby and recreational” use.

Consider this scenario:
Acme Construction has an employee who owns a drone. Acme uses the employee, among other things, to fly regular drone flights taking progress pictures monthly in an application for draw payments. The employee does not hold a pilot’s license or medical and Acme Construction does not hold a Federal Aviation Regulations Section 333 exemption as currently required to operate drones for any type of commercial benefit. The employee is not employed to just fly drones; the employee does other work for Acme and there is an apparent commercial benefit to Acme Construction because the photos taken by the drone flights are used for documentation for payment. Are these drone flights legal just because neither Acme Construction nor its employee sells the photos?

Here’s what the FAA had to say:
“…… No…These flights are contrary to Public Law 112-95 Section 336 Special Rules for Model Aircraft. Specifically, it is not purely for hobby or recreation. It is not like the “compensation” problem associated with private/commercial pilots. This issue goes straight to the intent of the flight. It would be VERY hard to prove that (these) monthly flights at a construction site…were purely a hobby or recreation.”

David Mathewson, executive director of the Academy of Model Aeronautics, founded in 1936 and today the official national body for model aviation in the United States, added this: “…the FAA narrowly defines what constitutes “purely for hobby and recreational” use. If the activity does not fit within (the FAA’s) narrow definition of hobby and recreation, then it is deemed to be non-recreational use and as such requires a (Section) 333 exemption (required to operate drones for pay or other material benefits). Similarly, when the small UAS rule comes out, anything that is deemed to be non-recreational will be required to comply.”

Drone Site ImageAviation attorney William G. Harger said, “As drone activity increases, the FAA is getting more serious than ever about enforcing regulations against people and companies that use them, regardless of their intent or understanding of the new federal laws regulating their use. It is what attorneys call “strict liability”—in other words, the FAA is making it clear that ‘ignorance of the law’ is no excuse.”

In Fall 2015, the FAA levied $1.9 million in fines against Section 333 exemption holder SkyPan International for what the FAA claims were 65 illegal drone flights involving airspace violations in Chicago and New York; that’s almost a $30,000 fine per flight and does not include any legal fees or court costs SkyPan International might accrue. The case is still in litigation.

An argument might be that having an employee armed with a quality drone controls related construction costs over the life of the project. But, if a mishap occurs and the FAA gets involved only to find an operator did not have a pilot’s license, a medical or a Section 333 exemption as is currently required, then what? Is saving a few bucks by not hiring a professional, licensed, experienced and insured drone operator worth risking a possible $30,000 fine…not to mention other potential civil liabilities? What’s the construction company’s insurance provider going to say?

A major Texas insurer said, “Most insurance policies disallow claims for unlawful or illegal activities. If a drone is operated unlawfully under the law by a company or by someone employed by the company, any claim can ultimately be denied.

“If that company employee is also not hired as part of his job description to fly drones, it will be the employee who is held liable if something should happen…and worker’s compensation benefits could also be (negatively) affected,” the insurer said.

Attorney Harger agreed and added, “Because we are talking about an intentional activity (as opposed to negligence), an insurance company will usually not cover such a loss (including) fines and litigation expenses. Further, this kind of problem can quickly sour a relationship with banks, investors, and the general public.”

Drones today are essentially becoming just another piece of construction equipment. Who would risk hiring an amateur heavy crane operator? Why not extend that very same consideration to deploying a worksite drone?

By Bob Howie
Lone Star Drones LLC