Earlier this week, Sens. Mike Lee, R-Utah; Dianne Feinstein, D-Calif.; Tom Cotton, R-Ark.; and Richard Blumenthal, D-Conn., introduced the Drone Federalism Act. This bipartisan bill lays out a bold new framework for federal regulation of the burgeoning drone industry.
The bill takes a novel approach, recognizing and balancing the interests of federal officials in maintaining airspace safety with the responsibility of local and state governments in policing conduct within and among their communities, and with private property owners who may not be keen on drones routinely buzzing their backyards.
To this end, the Drone Federalism Act affirms the federal interest in FAA regulation of the national airspace and interstate commerce, manned aviation, and all drone activity in the airspace above federal property.
Outside of these restrictions, the bill vests in state, local, and tribal governments the power to “issue reasonable restrictions on the time, manner, and place of operation” of drones when flown “below 200 feet above ground level or within 200 feet of a structure.”
These could include speed limits, the establishment of acceptable hours of operation, and demarcating drone-free zones around “schools, parks, roadways, bridges, or other public or private property.”
The bill would also guarantee federal recognition of airspace property rights.
Common law once granted an absolute right to the airspace above private property, but this archaic understanding was rendered obsolete by the rise of manned aviation. Homeowners no longer own everything “up to the heavens,” as the ancient “ad coelum” doctrine provided.
In United States v. Causby (1946), though, the Supreme Court held that homeowners do own “at least as much of the space above the ground as they can occupy or use.”
The “exclusive control of the immediate reaches” of the atmosphere above private land was recognized as essential, or “buildings could not be erected, trees could not be planted, and even fences could not be run.”
In language borrowed directly from Causby, the Drone Federalism Act affirms a property interest in the “immediate reaches of the airspace above property.”
If passed, property ownership would include 200 feet of airspace above private land and any structure on it, and the FAA would be prohibited from promulgating any rule authorizing “operation of a civil unmanned aircraft” within that space without the owner’s permission.
These provisions would ensure that the FAA cannot simply designate a low-altitude corridor for drone commerce without first addressing the concerns of the landowners directly affected by such activity.