May/June 2017

Communities: Private Practice
For the Client: Using Drones for Professional Services

BY NAHOM A. GEBRE, P.E., ESQ.

Unmanned aerial systems are poised to become an integral part of the design and construction industry. The Federal Aviation Administration has moved forward on setting up general requirements for commercial drone use and granting permits for certain uses on design and construction projects, such as observation and exploration.

Until now, the FAA has not allowed commercial drone use without granting an exemption. The regulatory process has taken an incremental approach to integrating drones into commercial operations. The FAA’s hesitancy to authorize general drone use is based on safety and privacy concerns.

The FAA’s Rules

Last year, the FAA published the long-awaited final rule on the commercial use of small drones. By statute, a small drone is an unmanned aircraft and the equipment necessary for the safe and efficient operation of that aircraft weighing less than 55 pounds.

The final rule is the next phase of integrating small drones into the National Airspace System. It gives a blanket authorization for many uses of commercial drones and accommodates the evolution of drone-related technologies that could lead to expanded, or unforeseen, uses.

Under the rule, the FAA lists “Operational Limitations,” “Remote Pilot in Command Certifications and Responsibilities,” and “Aircraft Requirements” for commercial drones as well as information for model aircraft. Among the major provisions are these:

• The drone can be flown only within line of sight of the operator or assigned observer in daylight, or twilight with anticollision lights.
• The drone cannot operate over any persons not directly involved in the operation or under a covered structure. Airspace restriction is still applicable.
• The maximum allowable altitude is 400 feet above the ground with a maximum speed of 100 mph.
• A drone may carry an external load if it is securely attached and does not adversely affect the drone’s flight characteristics or controllability.
• Operators need a remote pilot airman certificate with a drone rating or must be under the direct supervision of a person who holds such a certificate. Operators are required to pass an aeronautical knowledge test and be vetted by the Transportation Security Administration.
• The pilot must perform a preflight visual and operational check of the drone to ensure that safety-pertinent systems are functioning properly.
• The pilot must make the drone available to the FAA for inspection or testing upon request, must provide any associated records required to be kept, and must report to the FAA within 10 days any operation that results in serious injury, loss of consciousness, or property damage of at least $500.

Operators are encouraged to check local and state laws before gathering information through remote sensing technology or photography. This is an issue that may be a significant source of business and professional claims in the future; significant claims related to the violation of confidentiality and the improper acquisition of trade secrets through drone use are possible.

Special Exemptions Possible

During the interim rules phase, many engineering firms received special permission to use drones for activities that were outside of the existing regulations. Some firms are still operating under these special privileges. Others will seek approval for drone use specific to the services requested by clients and provided by engineers. Some examples of possible small drone operations that can be conducted under the framework of the new regulations include the following: power-line/pipeline inspections in hilly or mountainous terrain; antenna inspections; bridge inspections; aerial photography; and wildlife nesting area evaluations.

Although the line-of-sight restrictions reduce the chance to provide many other valuable services, the FAA has been clear that qualified firms can extend the range of their services by extending the range of their drones. Firms can request a waiver of most operational restrictions by showing that the proposed operation can be conducted safely under a waiver.

Risk Controls and Insurance Coverage

Until the FAA released the new regulations, only specific drone uses by specific users were allowed. Now, many companies—including mapping, surveying, engineering, and other design firms—are ready to put drones into use. Certainly, any legal drone use for design and construction must meet the commercial restrictions. Whether a firm owns and operates the drone or subcontracts for its use with a commercial provider, the entity operating the drone must have appropriate risk controls and insurance coverage. The insurance industry is moving forward on coverage for drone use; a form of aviation coverage is currently available.

The Insurance Services Office recently developed and filed a variety of general liability insurance endorsements addressing drone exposures to allow for maximum flexibility with this newly emerging exposure. Firms that are anticipating the legal use of drones should check with their brokers about their general liability coverage and the new ISO endorsements. Victor professional liability policy covers the liability of firms using drones as a tool to perform their professional obligations.

Nahom A. Gebre, P.E., Esq., is a risk management attorney for Victor, the managing underwriter for the Victor/CNA Professional Liability Insurance Program, which has been commended by NSPE’s Professional Engineers in Private Practice since 1957.