By simply purchasing a small unmanned aerial vehicle--"UAV" or "drone"--online or off the shelf of a hobby store, anybody can fly in any airspace, from anywhere, at any time using an ordinary smartphone or tablet. The potential for conflict between these unmanned and automated devices and traditional manned aircraft is pronounced at low altitudes in flight corridors at, near, over, and around airports across the world. Under statutory and decisional precedent dating back at least to the 1940s, federal lawmakers assert exclusive jurisdiction over all aviation operations in the national airspace system ("NAS"), which is generally recognized as beginning approximately five hundred feet above ground level. With drones, however, the Federal Aviation Administration is also increasingly asserting its authority in all airspace "above the grass."
This Article presents the central property law problems (i.e., air and land use) raised by contemporary technological advances in unmanned aviation and broadly argues against federal control of the airspace beneath the NAS, particularly with respect to uncontrolled areas around airports. In doing so, this Article offers a specific critique of the recently enacted regulatory scheme for small UAVs which allow some airport authorities to stop an operator from launching a drone, yet not from flying near or around the airport--a perplexing set of circumstances from a safety and operational perspective. Accordingly, federal regulators should revise or update recently enacted rules governing the operation of small UAVs to provide definitive and deferential authority to local airports with respect to the operation of drones in uncontrolled airspace.
TABLE OF CONTENTS Introduction 588 I. Regulatory and Judicial Approaches to Innovations in Aviation 593 II. Airspace and Supremacy: Access and Control 596 III. Questions of Police Power and Regulatory Authority 602 A. Federalism and Preemption 603 B. Dillon's Rule: The Role of Local UAV Governance 609 IV. UAVs and Airports 613 Conclusion 619 INTRODUCTION
Perhaps more exciting and surprising than the double-digit halftime lead that the Atlanta Falcons built over (but ultimately lost in overtime to) the defending champion New England Patriots in Super Bowl LI at NRG Stadium in Houston, Texas, in February 2017, was the halftime show. The intermission featured a synchronized swarm of three hundred illuminated "Shooting Star" drones flying over and behind Lady Gaga in the formation of an American flag as she recited the Pledge of Allegiance from the roof of the stadium--only the drones were not really there. (1) To comply with a new regulation prohibiting the flight of unmanned aerial vehicles ("UAVs") over people, (2) Intel Corp. pre-recorded the formation flying and then fed the footage into the game day broadcast--fans in the stadium watched the video just like home viewers. (3) Although the drone portion of the show was not live--the Federal Aviation Administration ("FAA") designated the Super Bowl as a "no drone zone" (4)--it "illustrated the ways large companies are embracing unmanned aircraft in sometimes unexpected ways." (5) Moreover, the halftime show spotlighted the tension between law and technology in urban settings and the precautionary steps regulators take to limit or ban even apparently reliable and safe UAV operations, while innovators push the envelope. (6) In fact, regulators approach drones as lawmakers charged with protecting public health, safety, and welfare have historically approached novel technologies--with mistrust and restrictive rules, if not a total ban. (7)
This skepticism is not entirely unfounded. While drones that are ready to fly out of the box are celebrated for opening the skies to numerous aviation enthusiasts and entrepreneurs, (8) the opportunity for novices with no experience or operators with bad intentions to fly at any time from any place, or "virtually" from any place, and for any purpose in relative anonymity is concerning. Inexperienced and nefarious operation of UAVs raises important questions of safety, privacy, and security--issues that are acute for airport owners, operators, and users. The potential for drones to collide or interfere with traditional airplanes is perhaps the most obvious concern associated with UAVs flying over, near, at, and around airports and heliports. Designing a new set of rules to eliminate or mitigate this risk requires regulators to weigh the probability of harm and the seriousness of harm that might result from errant or reckless drone operation. Until only recently (with the enactment of 14 C.F.R. Part 107 in August of 2016), the FAA effectively banned all civil (i.e., nongovernmental) operations of small drones (those weighing less than fifty-five pounds), reflecting a policy decision that the gravity of an accident or incident involving a drone outweighed any probability of such an event occurring. (9) This reasoning was undoubtedly informed by reports about drones conflicting and nearly colliding with passenger jets and other aviation traffic around some airports. (10)
In fact, in 2015, the FAA released a report of 650 "possible encounters with unmanned aircraft" between November 2014 and August 2015--with drone "sightings" estimated as high as one hundred per month in 2015--five times as many as one year earlier. (11) Most reported drone encounters occurred above 3000 feet, an airspace that is well above the five hundred foot ceiling established for commercial UAVs and the four hundred feet recommended for model aircraft, a fact that prompted a critical A viation Week & Space Technology editorial:
The FAA did itself no favors by releasing a list of 650 "possible encounters with unmanned aircraft" between November 2014 and August 2015. This mixes pilot sightings close to airports, where the threat is highest, with passing encounters and reports from air traffic controllers and the public. It is good for grabbing headlines, but not for defining the dangers. (12) Perhaps so, but in 2016 headlines of drone encounters with commercial jets persisted as a Porter Airlines Bombardier Q400 twin-propeller airplane reportedly swerved over Canadian airspace to avoid colliding with a drone; two cabin crew were injured, making the incident perhaps the first reported example of personal injury caused by a near-collision with a drone. (13)
Although complete data showing the actual number of potential conflicts between manned and unmanned airplanes near airports is wanting, anecdotal evidence is not hard to find worldwide. (14) In March 2015 for example, the United Arab Emirates Department of Economic Development banned the use and sale of recreational drones after one flew too close to critical flight paths and forced the suspension of all flights at Dubai International Airport. (15) In 2016, Dubai's airport--the third busiest in the world--was forced to shut down three separate times because of unauthorized drone activity, with the most recent shutdown requiring the diversion of flights and the closing of the airport for ninety minutes at a cost of one million dollars per minute. (16) Dubai's experience is not isolated; Polish aviation authorities took steps to revise their drone regulations as a reaction to a near-collision between a drone and a commercial jetliner at Warsaw Chopin Airport. (17) In the United States, meanwhile, vendors Brookstone and Hudson News removed UAVs from their airport store shelves after New York and New Jersey transportation authorities demanded that they stop offering the merchandise for sale. (18) With the FAA projecting seven million drones in the national airspace by 2020, (19) whether and how to integrate UAV operations in an ecosystem originally designed for manned flights is as unresolved as the question of who (local, state, or federal authorities) should have authority over operations in that airspace.
This Article focuses on the operational and regulatory problems implicated by drones operated near, over, at, and around the nation's airports. While a new body of scholarship discussing the constitutional and common law issues connected to UAV operations is developing, (20) no literature dedicated specifically to the unique legal issues of drones and airports exists. This Article intends to fill that gap, first by offering an overview of lawmaking and airports historically, then by evaluating the precedent upon which current decisions respecting airspace are based, and finally by drawing from scholarship arguing in favor of a state- and local-based approach to privacy regulation and private property rights implicated by the drone revolution, (21) to posit that federal regulators should revamp recently enacted laws to give definitive guidance and authority that is deferential to local airports with respect to the operation of drones in uncontrolled airspace.
REGULATORY AND JUDICIAL APPROACHES TO INNOVATIONS IN AVIATION
Legal controversies introduced by drone operations are more jurisdictional than technological. And, they are not entirely new. In fact, the operation of drones is reminiscent of the land use and urban planning issues associated with airports during the last century. Both involve a contest between private and public land ownership and use, on the one hand, and federal versus state and local government, on the other hand. Thus, where drones are permitted to fly is a critical issue whose resolution both depends upon and is limited by legal precedent established in the middle of the last century with respect to manned airplane operations vis-a-vis airports and private property. Now, as then, courts are asked to decide controversies pitting new technologies against long-standing legal principles from a utilitarian point of view.
In the 1920s case Dysart v. City of St. Louis, (22) for example, a Missouri taxpayer attempted to enjoin the development of a publicly-funded airport on the basis that the...