The commercial use of drones, or small unmanned aerial systems (sUAS), for urban real estate and construction may finally be gaining traction. This month, the New York City Council passed a bill requiring the Department of Buildings (DOB) to study the feasibility of using sUAS to inspect building facades.

Compliance with the city’s Facade Inspection and Safety Program, which requires owners of buildings higher than six stories to conduct facade inspections and make the needed repairs every five years, can be expensive and cumbersome. As opposed to manual examinations, sUAS can get close to building facades and “hard-to-reach” locations faster and more adeptly, and deliver high-quality pictures to the remote pilot. The pilot, in turn, can simultaneously transmit the images to back-office engineers who can convert the aerial images into 3-D models, and thereby gauge the solidity of the structures.

Yet, a 1948 Local Law prohibits any and all sUAS usage within New York City’s borders. Administrative Code § 10-126(c), entitled, “Take offs and landings,” provides: “It shall be unlawful for any person navigating an aircraft to take off or land, except in an emergency, at any place within the limits of the city other than places of landing designated by the department of transportation or the port of New York authority.”

As the 2020 bill’s sponsoring Council Member, Paul Vallone, commented: “An outdated local law, drafted decades before the advent of … ‘drones,’ is leaving New York City on the ground while other cities are already using rapidly advancing technologies to support business and improve safety.” Effective September 16, 2020, the bill is enforceable and the study must be completed no later than Oct. 31, 2021.

The DOB’s mandated study follows the expiration of the UAS Integration Pilot Program (IPP). Established by an October 25, 2017 Presidential Memorandum, the IPP is a consortium of state, local, and tribal governments, along with private sector stakeholders and experts, charged with “advanc[ing] the UAS industry” by using “the information and experience yielded by the [IPP] to inform the development of regulations, initiatives, and plans to enable safer and more complex UAS operations .” In other words, the IPP is to determine how to best integrate sUAS into the national airspace. The IPP’s challenge is to evaluate and balance sUAS operations with local and national interests, including ever-increasing privacy concerns. The program is set to expire by its own terms on October 25, 2020, and the FAA recently declined to extend it. That means, according to the Presidential Memorandum, that within 90 days thereafter, the FAA “shall submit a final report to the President setting forth the Secretary’s findings and conclusions concerning the Program.”

While the United States waits, the European Union Aviation Safety Agency (EASA) has already assessed how to integrate sUAS into aircraft space. Earlier this year, EASA published a proposed regulatory framework along with its explanatory “Opinion” for “creat[ing] and harmoni[zing] the necessary conditions for manned and unmanned aircraft to operate safely in the U-space airspace, to prevent collisions between aircraft and to mitigate the air and ground risks.” “U-space” is Europe’s unmanned air traffic management framework. The initial scope of the proposed regulations involves low-level airspace, densely-populated urban airspace and locations close to airports.

EASA is the first administrative agency in the world to formally examine what is needed in order to ensure safety and privacy and limit an environmental impact in an urban environment, while establishing a competitive market in “U-space services.” EASA recommends using a common information service that will enable the exchange of essential information among the U-space service providers, the UAS operators, the air navigation service providers and all other participants in the U-space airspace. According to EASA, “[o]nly a clear EU regulatory framework can establish a competitive European U-space services market to attract the necessary business investments in both the UAS and U-space services markets.” EASA anticipates that the European Commission will use its draft regulation in order to prepare a European Union regulation following its consultation with the necessary stakeholders.

Using one, large information service that will facilitate the transfer of aircraft information inherently raises privacy questions. So, too, does future use of sUAS navigating around city buildings. It remains to be seen whether the IPP and European Commission will evaluate privacy concerns similarly – and which if any of the two constituencies will delay enactment of legislation because of those concerns.

This post was authored by Virginia Trunkes and is also being shared on our Construction Law Zone blog. If you’re interested in getting updates on current developments and recent trends in all areas of construction law, we invite you to subscribe to the blog.