Ode to a Free Aerobotics Market or: How I Learned to Stop Worrying and Love SB 142


The Flag of New England1, with some BirdsEyeView Aerobotics flair

At BirdsEyeView Aerobotics, we generally speak collectively in our public statements, together.  Today I break form to make it clear that these are unabashedly my own opinions, and mine alone.  Also, I’m not a lawyer, I’m an aerospace engineer.  Please take my legal opinions with the requisite grain of salt.

But I’ll go ahead and say it:  California’s proposed “drone”2 law, SB 142, is a good thing.  No question.  Without a doubt.

As the Founder and CEO of an aerobotics startup trying to navigate an emerging industry under constant regulatory pressure, this puts me at odds with at least some of my brethren, so let me dispel one thing immediately: while it undoubtedly has privacy implications, SB 142 in its final form is not a bill about privacy rights. It’s a bill about property rights.

The Federal Aviation Administration has maintained for the past decade that it owns and controls the airspace all the way down to your lawn.  It has repeatedly and consistently used this argument to first prohibit, and later claim strict approval authority over, commercial aerobot use in the United States.  The question of whether or not the FAA has legal authority to do any of the above is sometimes raised1,3, but mostly ignored.

SB 142 is a dangerous bill when it comes to the FAA’s presumed authority over aerobots … which is a big part of why I like it.  It reasserts that landowners actually do own their airspace (up to 350 feet in the bill) by making it clear that passing into this space without permission qualifies as a trespass.  FAA claims of authority in these matters hinge on the idea that “the navigable airspace,” over which they have been granted authority by Congress4, extends to the ground.  The trouble is that the bounds of “the navigable airspace” near the ground (specifically, below 500 feet) are legally unclear.   Claiming ownership of the airspace above your land and below 500 feet begs the question: if an aircraft can’t pass over my land at low altitude without my permission, how can low altitudes be considered navigable airspace?  SB 142 answers this question in California, and not in the FAA’s favor.

When I occasionally raise these issues in conversation or on internet forums, inevitably someone will say something to the effect of, “Well that’s ridiculous – of course the FAA has authority over all airspace!”  You can see echoes of this in some of the lobbying group statements against the bill, which speak of “preemption” and “inconsistences with Federal law” and criticize an “arbitrary” altitude limit of 350 feet.  The truth is that the concept of landowner control of the lower airspace and the choice of altitude in the bill are both definitely consistent with existing law.  Look no further than United States v. Causby for proof.

In 1944, the Causby family, chicken farmers of my native North Carolina, sued the United States Government after low-flying military aircraft from an airfield adjacent to their property repeatedly stirred their chickens into such a frenzy that the majority of them were killed in the ruckus, making the Causby farm worthless if not unlivable.  The legal wrangling that followed resulted in the case going all the way to the Supreme Court, which ruled in favor of the Causbys, asserting that the aircraft had trespassed on their property.  Justice William Douglas explained:

"if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run … The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land."

Precisely how much space constitutes “the immediate reaches” over which “[the landowner] must have exclusive control” has never been clarified; but the Causbys were awarded damages for aircraft that passed between 83 and 365 feet5, the minimum and maximum altitudes that the aircraft achieved while passing over their land.  Clearly the 350 foot limit in SB 142 has some legal pedigree.

But I’ll take off my law geek hat in the interests of cutting to the chase.  This matters, and it matters a lot, for the following reason:

If the FAA has no legitimate authority in the lower airspace, then the authority belongs to the landowner, who can prohibit or permit activities without Federal interference.

All that prohibition of commercial aerobot use from the past decade?  The only likely illegalities were on the part of the FAA.  Spending a bunch of time and money these days to get a Pilot License and a Section 333 Exemption?  You’re joking, right?  Proposed rulemaking?  Who cares? … Presto, perfectly legal commercial aerobot operations.  All you have to do is get the landowner’s permission and steer clear of the FAA’s “navigable airspace,” which is simply common sense for a responsible operator anyway.

Perhaps you can see why the lobbying groups would be using terms like “onerous,” “unnecessary … and job-killing,” and “[of] deep concern” when describing SB 142.  After all, a lot of military-industrial and venture capital money has been thrown at falling all over one another to “collaborate with the FAA” for years now.  Certainly jobs would be killed: DC lobbying jobs.  Commercial aerobotics jobs in California, on the other hand: boom.  Here are five applications that SB 142 could immediately open at altitudes of 350 feet and below, and this is by no means an exhaustive list:

  1. Real estate photography/videography with the homeowner’s permission.
  2. Agricultural mapping/monitoring, where farmers obviously either own the land or are using it with the landowner’s permission.
  3. Aerial filmography over private land (including Hollywood studio sets).
  4. Aerobotics education and research activities over land owned by the associated educational institution.
  5. Power line monitoring and inspection, where utility companies have existing easements giving them the right to access the associated land.

Suffice it to say that I consider myself part of that small but vocal minority who has no interest in “collaborating” with a distant, out of touch, grindingly bureaucratic organization that has overstepped its bounds and done nothing but stand in the way of the positive applications of this technology for over a decade.  Let the FAA focus on the challenges of making manned aviation in the navigable airspace safe, and let us freely use that airspace where manned aircraft don’t belong … assuming the appropriate local permissions of course.

In closing, and to be fair, I should concede that there’s one commercial application that SB 142 might particularly complicate: delivery.  My company offers a product called the FireFLY6 that’s well-suited for delivery applications, thanks to its ability to cover distance quickly and efficiently while also retaining the hover capabilities necessary to navigate the cluttered environment of our everyday lives near the ground. 


The FireFLY6

So I have something to lose in this fight, and I can see how SB 142 and the ideas above might cause technical challenges and logistics headaches for delivery providers.  But given the choice between a small reaffirmation of property rights that could result in some long-overdue freedom for commercial aerobots … versus the never-ending path of obstructionism and regulatory uncertainty that the FAA is leading us down … even if it means less FireFLY6 sales, I choose Freedom.

Live Free or Die y’all,

Adam Sloan
Founder & CEO
BirdsEyeView Aerobotics
Sutton, New Hampshire

 

 

1. Paul Voss of Smith College has made multiple arguments that echo mine and notably had a big victory in helping to convince the City of Northampton, MA to pass an ordinance reaffirming local control of the lower airspace.  See his paper, Voss, P.B., Rethinking the Regulatory Framework for Small Unmanned Aircraft, Proceedings of the 2013 International Conference on Unmanned Aircraft Systems, Atlanta, Georgia, May 28-31, 2013, as well as his brilliant 2014 collaboration with Brendan Schulman in opposition to....  I use the Flag of New England in a nod of solidarity to my compatriot, and as a reminder that it was New England that first stood radically against illegitimate overreach by distant authorities.
2. See Language Matters - The Argument for “Aerobot” for more on why we don’t use “the d-word” at BirdsEyeView Aerobotics.
3. Brendan Schulman, to his credit, was on the path of raising the question in his Huerta v. Pirker briefs before settlement preempted formal arguments.  See pages 30-34 of his May 2014 Respondent’s Reply Brief.
4. See the Air Commerce Act of 1926 (Pub. L. No. 69-254, 44 Stat. 568) and 49 USC § 40103 (b)(1).
5. See Who Owns the Sky? by Stuart Banner, Harvard University Press (2008), pages 226-260.  The altitude range for which damages were awarded has notably been misquoted at least a few times in online articles to incorrectly conclude that 83 feet was specified as the upper limit on the Causby’s claim.

Views: 600

Comment by Gary McCray on September 9, 2015 at 10:58am

Hi Adam,

You definitely broach an interesting argument.

I would say at this point in time you are certainly right it is a matter of legal uncertainty, in spite of the FAAs insistence it has complete control.

I think the fact of the personal UAVs themselves is going to force a far more critical appraisal of this than has taken place in the past and that in fact new "laws" will result.

Reasonably I would expect the FAA to have complete jurisdiction over some aspects all the way to the ground, especially relating to safety issues.

But it is also entirely possible that state and local authorities will still be granted authority to also restrict or ban outright the use of UAVs as they see fit or some subset of that for privacy and their own local safety concerns.

Neither will have the authority to permit some otherwise denied activity, but either may have the authority to deny it.

This is by and large a conversation that has not yet taken place, but it is beginning and no doubt SB142 is precisely that.

However, while you who live in New Hampshire can see SB142 as a good thing in reaffirming property rights, I who live in California which is where SB142 covers see it as an utter disaster, that if passed will virtually destroy the future of UAV use in my state.

So while the affirmation of property rights may be a good thing, misusing them to gut our personal rights is entirely another.

Best Regards,

Gary

Comment by Joe Renteria on September 9, 2015 at 11:21am
Wow. Some great points...
Comment by Benjamin Pelletier on September 9, 2015 at 1:14pm

I really like your argument and reasoning and wish things were that way, but I'm afraid I agree with Gary when he says that empowering California to deny the right to flight close to the ground doesn't negate the FAA's power to impose restrictions in that airspace also.  Just because I "own" my property doesn't mean I can do whatever I want on it.  Zoning and codes restrict what I'm allowed to build on my property; I see no reason why the FAA wouldn't be allowed to restrict what I'm allowed to fly on my property (with regard to what the laws/jurisprudence are, not what they should be).  As much as I wish SB 142 was what you say it is, I see no reason to think that it is.


Moderator
Comment by MarioSpeedwagon on September 9, 2015 at 1:49pm
Kudos for a well written post with an unpopular view. I'm not qualified to theorize about the legal implications, but I'm looking forward to this discussion.
Comment by Gary McCray on September 9, 2015 at 1:50pm

A slightly parallel case regarding private airstrips can be made for existing regulation comparisons.

The FAA can shut down a specific area for use as a private airstrip, but far more often it is state and local government that makes the determination.

generally the FAA will permit use if it doesn't interfere with existing traffic, but state and local government often applies area wide bans or requires an extensive approval process.

Basically they both have veto power.

In all probability this is the circumstance we are going to have to deal with going forward.

Comment by Nikola Rabchevsky on September 9, 2015 at 4:23pm

Sounds to me like someone has a vested interested in making sure that there isn't any competition for the airspace.

Comment by Paul Meier on September 10, 2015 at 12:35pm

Hat off for an excellent article with a different point of view

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