Commercial DronesCompanies who engage in the building, engineering and maintenance of cell phone towers often grapple with a startling reality—that the tower climbers who are hired to do the work are involved in one of the riskiest professions. In fact, cell phone climbing has been called the “most dangerous job in America.” See, e.g. Pacific Standard, “OSHA Takes a Closer Look at the Most Dangerous Job in America,”  Apr. 7, 2014. The high number of deaths of tower climbers has lead to substantial litigation along the lines of injured/accidental death lawsuits in employment law. This article discusses new Federal Aviation Administration (FAA) regulations that allow commercial drones to be used in tower maintenance and the potential legal implications of such policies.

Discussion:

The new FAA rules, which provide for the expanded use of commercial drones, go into effect this August. See, e.g., Matt McFarland, “New drone rules could curtail cell tower deaths,” CNN Money, Jun. 21, 2016. According to many businesses and analysts in the industry, the new rules “will be especially empowering for businesses that need to inspect towers and antennas, a notoriously dangerous job.” Id.

The new rules would seemingly decrease the need for tower climbing, thereby eliminating some of the risks that individuals currently face. Accordingly, the question arises as to what parties, if any, bear the legal responsibility of implementing policies that utilize drones instead of human climbers. To answer this question, it is worth looking into how the liability for tower climbing accidents has played out in the past and what the Occupational Safety and Health Administration (OSHA) guidelines are for the present and future.

When a cell phone tower requires maintenance, the carrier who owns the tower typically delegates that responsibility to a subcontractor, who often, in turn, delegates the work accordingly. See, e.g., Ryan Knutson & Liz Day, “Anatomy of a Cell Tower Death,” Frontline, Jun. 6, 2012. For example, a previous lawsuit that involved the death of one tower climber and injury of another was mapped out by one publication, in an attempt to clarify the layers of responsibility that may exist in such cases. The authors explained that the contracting chain involved with tower maintenance makes assigning legal responsibility particularly difficult and complicated. See id., e.g. In the lawsuit at issue, the authors noted the following contractual chain:

-Carrier A hired two companies. One company (X) was a large firm that was subcontracted for tower work by A. The other company (Y) was hired by A for ground work.

-Subcontractor X then hires a tower company, Company 1, to provide the tower climbers. Company 1 is considered subcontracted by X.

-Company 1, in turn, subcontracts the work to Company 2, which ultimately provides the tower climbing services. See id.

In the above scenario, liability was apportioned in various ways, and one noteworthy aspect of the lawsuit is that the only parties cited by OSHA for negligence were companies 1 & 2. In other words, only the companies that ultimately did the work were held responsible by the federal government, although Carrier A and other parties were included in the lawsuit and later settled with certain parties. See id. Taking into account the contracting chain and the fact that OSHA did not investigate the carrier or the companies who were hired but ultimately subcontracted the actual work elsewhere, the issue of which party may bear legal responsibility for using the arguably safer commercial drones in this industry may seem clear.

However, it is important to take into account that OSHA has changed its position in many respects since that lawsuit was completed, and those changes may in fact implicate more parties in determining legal responsibility. Although cell phone carriers and tower owners were previously insulated from liability for the injuries of tower climbers, OSHA has called for a closer investigation into and possible overturning of this standard insulation. See Liz Day, “Feds to Look Harder at Cell Carriers When Tower Climbers Die,” Frontline, Apr. 1, 2014. To wit, “OSHA’s chief administrator has insisted that carriers and tower owners must take more responsibility for safety.

‘It’s really incumbent on them that safety provisions are absolutely implemented,’ OSHA director David Michaels said in an interview. ‘Safety can’t just be pawned off on the final contractor.’” Id.

Given that the government has suggested that legal liability for tower climbing accidents should not necessarily be presumptively limited to the terminal parties who provide the work/workers, and in light of the recent relaxations on drone regulations, there is much to consider.  In particular, if drones are a safe and effective alternative to human climbers, which parties bear the legal responsibility if drones are not used, and a tower climber is injured or killed in a related accident?

It’s a question that may best be settled by expert witnesses in the telecommunications field, and it’s a complicated one. In fact, the question of who is responsible for using commercial drones may be a premature one. The first questions that may need to be answered are: (1). Are drones an effective alternative to tower climbers, and (2). If so, does any party have the affirmative responsibility to use them?

The first question seems to be one on which many industry professionals appear to be divided. For example, the head of the National Association of Tower Erectors argued that drones could eliminate 30% of the climbs that tower technicians make to maintain the country’s communications infrastructure. McFarland, supra. If that is the case, then 70% of those climbs would be necessary. In either event, expert witnesses are the people who can best determine the safety and efficacy of drones versus human climbers. Accordingly, as the FAA regulations become effective, experts should have quite a bit of influence on this matter. Industry members from wireless carriers to subcontractors should consult experts to help determine whether drones can and should play a role in tower maintenance.

The second question is also not easily answered, as it calls into question what a party’s affirmative legal responsibilities are in a tower maintenance scenario. When assessing when an affirmative duty should exist, litigators often attempt to establish what the customary procedures in a particular field are. As the FAA becomes more lenient, the use of commercial drones may increase. Should that use become an industry standard, there may be a good legal argument that such a standard indicates an obligatory procedure. However, we are not there at this juncture, and the only people who can make the best arguments about the affirmative duty (or lack thereof)to use drones are the experts. Accordingly, it will behoove businesses in the industry to seek expert opinions on what their duties are and should be, and such experts should be asked to reassess these matters if and when the industry standards start to shift.

Conclusion:

Regardless of what role commercial drones play in cell tower maintenance, many legal questions have arisen and will continue to be raised with respect to who is responsible when accidents occur. Expert witnesses play an indispensable role in answering these questions and should be consulted at every juncture by industry members.

By: Kat S. Hatziavramidis, Attorney-at-Law