Ten years ago, when someone said the word “drone,” the first thing that someone may have thought of — if they had any idea what a drone was — was military predator drones flying over Afghanistan for use on the battlefield.
Today, drones have a much broader definition and application. Some roofers, including those who install sheet metal products such as standing-seam metal roofs, have started using small unmanned aircrafts — commonly referred to as small unmanned aerial systems — for a variety of tasks, including pre- and post-project inspections, estimates and takeoffs, and even infrared moisture analysis. Although nothing can replace getting up on a roof and viewing conditions in the field, drones allow roofers to safely inspect, estimate and market roofs.
This article will explain some of the new Federal Aviation Administration requirements for the use of drones in roofing, as well as address several of the legal issues surrounding their use.
The FAA, together with the Office of the Secretary of Transportation and U.S. Department of Transportation, has issued a rule that impacts the commercial use of drones. The federal government primarily was concerned about privacy and security issues. To mitigate the potential risk associated with drone use, the operation of a small unmanned craft has been limited to flight during the day, within line of sight, Class G airspace (under 14,500 feet), under 400 feet, at or below 100 mph, yield right of way to manned aircraft, not flying over people, and not flying from a moving vehicle. However, the FAA explains that these operation rules can be subject to waiver. The waiver allows for deviation from the operating rules so long as the operation can still be performed safely. For example, a roofing contractor looking to inspect a building more than 400 feet tall could obtain a waiver.
In addition, FAA requires small unmanned craft to weigh less than 55 pounds and must be registered. The individual who is operating the craft is also required to be at least 16 years old, pass an initial aeronautical knowledge test and must be vetted by the Transportation Security Administration.
In order to fully comply with FAA regulations, the individual or business would have to register the drone and either obtain a certification to fly the drone or file for an exemption with the FAA.
To use a drone, the first step is registering the drone with the FAA. It is important to register the drone because without it there is a risk of civil and criminal penalties. The drone must be less than 55 pounds and undergo a preflight check to make sure that the drones can be safely operated.
After the drone is registered, the next step is obtaining a pilot certification for the individual who is going to fly the drone or supervise flight of the drone. Certification is an extensive process that includes testing an individual’s aeronautical knowledge and completion of an application.
If obtaining a certification is not the avenue a company wishes to pursue, which many do not, the next option is obtaining an exemption. Roofers must request an exemption from the FAA. Like many things involving the federal government, the exemption process is lengthy and time consuming. The FAA recommends sending the petition 120 days before it is needed. If an exemption is obtained, the exemption will last for two years. After the two-year timeframe, an extension can be filed, but must be done at least 120 days before expiration of the previous exemption.
Aside from complying with federal regulations, roofers should be mindful of state-specific statutes. For example, Florida statute No. 934.50 — aka the Freedom from Unwarranted Surveillance Act — governs the use of drones in the Sunshine State and explains that there is a reasonable expectation of privacy on a person’s property, which limits drone usage.
Under the statute, consent is required for use of a drone on someone else’s property or air space. Florida statute No. 934.50(3) explains that a drone cannot be used as surveillance or to capture images that would violate a person’s “reasonable expectation of privacy.”
Similarly, many other states have statutes that limit the use of drones for public safety and privacy concerns. Texas government code section No. 423.002(a) prohibits the use of drones for the purposes of capturing images. However, there are a variety of exceptions, such as if consent is granted by the owner. Like many other states, there can be both civil and criminal penalties for the unlawful use of drones in Texas.
Prior to using drones, roofers should consider revising their contracts to include a variety of provisions that could protect them in the event of an accident using a drone or a claim that the drone use is improper. Contracts between roofers and customers should contain a provision that states the roofer has been given express written consent for the use of drones and the capturing of images relating to the roofing system. For example:
- Customer hereby consents to the use of drones or small unmanned aircraft by roofing contractor for the purpose of capturing still, live and recorded images of your real property and the roofing system for marketing, estimating and inspections.
- Customer shall allow roofing contractor to reproduce any captured images for permitting, marketing or other lawful purposes. In addition, customer expressly waives any claim customer may have as to a violation of privacy rights or any claim of nuisance caused by the use of drones or small unmanned craft.
- Similarly, a sheet metal roofing contractor should consider whether it wants to limit its liability in the event a drone malfunctions. Some roofing contractors have created subsidiary companies to operate the drones in the event a crash does occur. Another option would be to insert a disclaimer of liability in contracts that could absolve the roofer of liability in the event damage is caused by the use of drones. For example:
- Customer recognizes the cost savings in the price of this project with the use of drones or small unmanned craft. As a result, roofing contractor disclaims all liability for actual, direct, indirect, incidental, compensatory or consequential damages and assumes no responsibility or liability for any loss or damages suffered by any person or caused to real or personal property, regardless of whether the damage was caused in whole or in part by the use of drones or unmanned craft, and customer shall indemnify, defend and hold harmless roofing contractor from any damage caused by the use of drones or unmanned craft on this project.
Obviously, getting any homeowner or customer to agree to this provision will be a challenge. From a more practical standpoint, the roofer should contact their general liability carrier or drone/aircraft insurer to determine the extent of coverage and verify that they are covered in the event of a drone crash.
Although the use of drones in the commercial arena is heavily regulated, they can be a cost-saving and ingenious way to market and promote your company. The FAA and other federal government agencies will continue to issue new rules and advisory opinions on drones. Roofers should also closely monitor their state laws on drone usage and the many proposed changes to local rules and laws governing unmanned aircraft.
While drones are currently being used for inspections, estimating and marketing, in the near future we could see the use of drones for installation of materials, providing detailed water intrusion analysis with the use of special lenses, and even replacing ladders as a means of ingress and egress for crew members. How long will it be before drones are replacing shingles or metal panels on steep-slope roofs? For this reason, it is important that roofers take part in the discussions with both state and federal governments to ensure that their voice is heard.
This article was originally written in early June. On June 21, the U.S. government overhauled the legal requirements and restrictions for drone technology in commercial uses. The new rule, which took effect Aug. 29, was adopted under title 14 of the code of federal regulations (14 CFR), Part 107.
The government previously required an elaborate and complicated exemption process for any operator who wished to use a drone in a commercial application. The old standard required businesses to submit a petition for exemption to fly unmanned aircraft in a commercial application. An exemption petition is no longer required as long as the drone meets the current operational limitations handed down by the FAA. Essentially, a drone must operate under a certain weight, speed and within a limited range. The drone will still need to be registered with the FAA, and this can be done online for a $5 fee.
The FAA’s operational limitations for unmanned aircraft systems are numerous. The key limitations all roofing contractors need to keep in mind include weight, size, and speed restrictions. A drone must weigh less than 55 pounds and have a maximum ground speed of 100 mph or 87 knots. Additionally, the drone’s maximum altitude cannot exceed 400 feet and the aircraft cannot be operated beyond the visual line of sight of drone operator.
The FAA further prohibits the drone from operating over individuals who are not directly participating in the activity, and the aircraft must be operated only during daylight hours. Night flights are currently prohibited without special exemption from the FAA. Unmanned aircraft may not be operated out of a moving vehicle or moving aircraft. Drones must also remain within Class G airspace unless special permission is granted to operate in otherwise off-limits airspace. Finally, there are certain licensing and aeronautical knowledge requirements that a pilot of an unmanned aircraft system must meet before the equipment can be operated in a commercial setting. The new rule makes operating a small unmanned aircraft much easier than the previous certification process referenced in the article.
The information contained in this article is for general information only. It does not constitute legal advice and should not be relied upon as legal advice for any specific situation.