OWNER ALERTS
document. Additionally, the new versions distinguishes between “Additional Services” that arise during the course of the project and “Supplemental Services” that are identified at the time of the contract as being outside of Basic Services but still are being performed as part of the project. This may relieve some of the confusion that was generated by the chart of “Additional Services,” especially since the chart is simplified to indicate who, if anyone, is providing the “Supplemental Service.” Both the B101 family of documents and the A101 family of documents recognize the need for direct communications between the Owner and the Contractor. Earlier versions of the documents required all communications to channel through the Architect. While the new documents ref lect t his direct communicat ion, bot h t he cont ractor and t he ow ner are encouraged to copy the architect and keep the designer informed of the communications. This is not unlike the structure of communications envisioned by the ConsensusDocs contracts. The most noticeable change across all of the documents is the treatment of insurance. Rather than being the runic topic buried in the Supplementary General Conditions, insurance is brought front and center requiring extensive discussions on topics as broad ranging as professional liability for the contractor to cybersecurity insurance to responsibility for builder’s risk and the scope of coverage. Instead of simply applying a rote number to a line of insurance, the new insurance Exhibit A lists various topics and types of coverage to be discusses and evaluated for applicability on a given project. W hile not ever y policy or coverage is necessary in every setting, having this document force the conversation will help Owners understand and identify the appropriate insurance product on the project under review. Some Owners use insurance exhibits that have been developed as part of the overall risk management, and this exhibit will bring more Owners who use the AIA templates into that practice of examining insurance as an element of the project rather than an unpleasant afterthought. Certain Local Regulations of Drones Pre-Empted by Federal Law The proliferation of small unmanned air systems (SUAS or “drones”) has both created an industry and raised the concerns of local
governments seeking to exert some level of control over the operation of drones within a geographic area. While Congress directed the Federal Aviation Administration (FAA) to develop a comprehensive plan to safely accelerate the integration of unmanned aircraft systems into the national airspace, that direction provided little comfort to politicians whose constituents felt that drones were intrusive and annoying. The FA A did issue its final rules in August of 2016 that required the registration of commercial drones [the application of the registration was struck down insofar as it attempted to require hobbyists to register drones since hobbyists had been specifically exempted from regulation by Congress]. Among the other rules issued by the FAA under Part 107, the FAA allows daylight operations below an altitude of 400 feet above the ground or any structure within the visual line of sight of the licensed remote pilot in command or visual observer. But the guidelines do not address some operational details, and the FAA indicated that certain legal aspects of drone use would be best addressed at the state or local level such as individual privacy rights. A s a result, several local units of government have passed ordinances in an attempt to regulate the manner and locations in which drones may operate. The City of Newton, Massachusetts, studied the possibility of creating an ordinance that did not conflict with federal law, and, following almost sixteen months of research and discussions, passed an ordinance that included a ban on the following: • the use of a pilotless aircraft below an altitude of 400 feet over private property without the express permission of the owner of the private property; • operations beyond the visual line of sight (VLOS) of the Operator; • operations in a manner that interferes with any manned aircraft; • operations over Newton city property without prior permission; and • conduct surveillance or invade any place where a person has a reasonable expectation of privacy. The Newton ordinance required all drone operators to register with the City of Newton and subjected violators to a fifty dollar fine following a one-time warning. Michael Singer, a physician and Harvard faculty member and drone enthusiast, filed
suit challenging portions of the Newton ordinance. Specifically, Singer challenged t he regist ration requirement as well as the altitude, VLOS and geographic restrictions. He did not challenge the prohibition on operating in a manner that interferes with manned aircraft or the prohibition on conducting surveillance or invading a person’s reasonable expectation of privacy. Singer argued that the Supremacy Clause of the United States Constitution empowers t he FA A to pre- empt any conf licting state or local laws covering the same subject matter; thus, the City of Newton ordinance was an improper attempt to regulate drones inconsistent with the authority of the FAA. The City of Newton raised the point that the FAA itself had noted that some aspects of drone use would be subject to local control. The United States District Court of Massachusetts in Singer v. City of Newton found that the registration requirement was explicitly pre-empted, especially when attempted to be applied to model aircraft by hobbyists which are exempted from registration by Congress. Further, Newton’s ordinance would effectively prohibit the operation of drones within the city limits whether over public or private propert y without prior authorization, and the court found that the attempt to regulate f light within the navigable airspace was likewise pre- empted by the FAA regulations. The unchallenged portions of the ordinance remain in effect, and the court recognized that Newton could redraft the ordinance to address the deficiencies described in the court’s opinion. In short, state and local governments have a role in regulating drone operations, but t he role is nar row and cannot conf lict with existing regulations issued by the FA A. As long as the regulations address issues such as privacy or similar issues and does not affect operations in navigable airspace, the local statutes and ordinances may be enforceable. There will be a longer learning curve for all persons and level of government as drone use becomes more widespread, especially when the FAA regulations are relaxed to allow autonomous drone use rather than the current requirement for the drone to remain within the visual line of sight of the remote pilot in command or the visual observer. Fall 2017 5