Making the Case for Expanded Drone Regulation Authority

Drones have remarkable potential to positively impact our lives. However, the industry will struggle to meet this potential without a carefully considered legal infrastructure that responsibly promotes the continued development of the technology while respecting private property rights and the authority of state and local governments to regulate drones.

Unfortunately, some in the industry disagree that drone regulations should balance industry interests with those of property owners and local governments. They, instead, argue that the Federal Aviation Administration (FAA) has sole, exclusive authority over drone regulation nationwide. In addition to being incorrect as to the current scope of the FAA’s authority, such broad federal authority would be bad for property owners, anyone who prefers local control of communities, and the continued success and growth of the drone industry in the U.S.

The Limits of FAA Authority
The argument that the FAA has exclusive authority to regulate drones nationwide
generally claims that 1) the advent of drones makes virtually everything above the ground “navigable airspace,” and because the FAA has regulatory authority over navigable airspace, the FAA has authority to regulate all drone activity; and 2) Congress’ instruction to the FAA in the FAA Modernization and Reform Act of 2012 to develop a plan for the integration of drones into the National Airspace System (NAS) grants the FAA exclusive regulatory authority.

However, these arguments fail to show that the FAA has exclusive authority to regulate drones. A primary, but often overlooked, reason is the 1946 Supreme Court ruling in United States v. Causby, which states that a landowner owns at least as much of the space above the ground as he or she can use in connection with the land, and that landowners have the power to prevent intrusions into the airspace above their property that would detract from the landowner’s full enjoyment of the property.

It is impossible for this rule to exist alongside a regulatory scheme under which the FAA, not landowners, determines the permissibility of drone flights over private property at lower altitudes. Though Congress could eliminate the Causby rule, any legislation effectuating such a change would arguably entitle every landowner in the country to compensation – an expensive proposition simply so the drone industry can prevent landowners and local governments from having active roles in drone regulation.

Furthermore, the FAA Modernization and Reform Act of 2012’s direction to the FAA to create a plan to integrate drones into the NAS clearly does not grant the FAA sole authority over drone regulation. It is merely a directive to determine how drones can be safely incorporated into the NAS. If Congress wants to draft a statute to give the FAA sole authority over drone regulation nationwide, it would need to be far more explicit.

Also problematic for the theory of sole FAA authority is that the FAA is specifically prohibited from regulating most drones that are not used for commercial purposes. State and local governments, however, have that authority as part of their inherent police powers. Therefore, a regulatory scheme that prohibits state and local governments from regulating commercial drone activity would inevitably result in different rules for otherwise identical drone activity, depending on whether the drone is being used in a commercial capacity.

The Danger to Private Property Rights
If the FAA did assume full and exclusive authority to regulate drones nationwide, this
would block property owners from preventing airspace intrusions that would detract from full enjoyment of the property, as generally allowed by the Causby decision. The resulting impact on our privacy rights would be significant and irreversible due to the reality that individuals may generally observe anything in plain view from public spaces.

This is why a landowner generally cannot prevent others from viewing activity on private property that is plainly visible from a public space, such as a public street or sidewalk. For example, police may park a car on the street and watch a house without violating the Fourth Amendment, and paparazzi can photograph celebrities on private property so long as the photographers are on the public street or sidewalk.

On the other hand, if a person is in a private space that is not visible from a neighboring property or a public space, then the only way he or she could be observed would be by a trespasser, and the only way law enforcement could search that private property would be with a warrant.

However, if a landowner has no ability to prevent drone flights over his or her private property, then even the most remote, private corners of one’s property, previously far-removed from any public spaces or neighboring land, would be directly below a public highway for drones. Anyone could fly drones over private property and observe
otherwise private spaces without trespassing and without law enforcement’s obtaining a warrant. Though some states have enacted legislation prohibiting law enforcement from using drones in this manner, such policy decisions can easily be undone and cannot restrain the actions of private citizens.

The Importance of Local Control
Those who advocate for the FAA to serve as the sole regulator of drones effectively seek to remove drone activity from state governments’ police powers, which allow state and local governments to regulate a wide variety of activities within their borders.

Preventing state and local governments from using those powers to craft reasonable restrictions on drone activity in our communities will eliminate the opportunity for a nuanced, community-focused regulatory approach that balances the needs of individuals, communities and the drone industry. If the FAA were responsible for all drone regulation, it is unlikely regulations will be tailored to the character of individual communities and neighborhoods.

Furthermore, because the FAA’s legal authority to regulate all drone activity in the U.S. is, at best, questionable, any attempt to seize regulatory authority for drones from state and local governments and individual property owners will result in years of lawsuits over the proper scope of the FAA’s authority. The regulatory uncertainty brought on by these lawsuits will delay the development of the comprehensive regulatory framework necessary for the continued successful development of drones.

A better approach for the drone industry, property owners and local governments is for Congress to pass legislation establishing the limits of the authority of the FAA, state and local governments, and landowners to regulate, control and prohibit drone flights.

Perhaps those communities who choose to allow drone flights with little regulation will reap the benefits of active and successful drone operations within their borders, while other communities will over-regulate drone flights and lose out on the benefits drones are likely to offer in the near future. Such an approach would create certainty that would allow the drone industry to develop drones with the ability to navigate through communities with different flight rules for drones, while also ensuring property owners maintain sufficient control over their land.

Jonathan C. Hayden is an attorney at Boston-based law firm Rackemann, Sawyer & Brewster, where he specializes in real estate law.