Wendie L. Kellington is President of the Kellington Law Group in Lake Oswego, Oregon. She is a member of the Radio Technical Commission for Aeronautics (RTCA), a federal advisory committee, serving on the RTCA SC 228 developing Minimum Operational Performance Standards (MOPS) for UAS (drone) airspace integration. She also is a member of the Academy of Model Aeronautics.
DRONES ARE ENTERING UNITED STATES AIRSPACE IN GREAT NUMBERS. In 15 years, a landscape without drones will be unusual. Just as we are now used to FedEx and UPS trucks on our local streets and highways, in 15 years we will be equally or more used to, not to mention reliant upon, delivery and other drones for our day-to-day needs. These aerial robots fly in Federal Aviation Administration (FAA) declared “navigable airspace.” The greatest aerial drone growth has been and will be in small machines that fly at 400 feet above ground level (AGL) or less. As a consequence, the all but forgotten law informing the rights at the intersection of navigable airspace and private property rights, largely developed in early days when manned aircraft first became ubiquitous, is again important. These key older cases set useful, although incomplete, parameters about the rights of aircraft in navigable airspace vis-á-vis the rights of occupants and owners of private property.1 However, exactly where private rights end, and the public’s right to flight in the navigable airspace without avigation easements begins, has no bright line. As is always the case with new technology, the law will be tasked to “catch up.”
This article outlines the current state of the law respecting the authorization of drones to fly in navigable airspace and the law at the intersection of navigable airspace and property/personal rights. It analyzes the likely legal envelope for small drones in navigable airspace as it unfolds in the future and also offers some food for thought on preemption and privacy in the era of drones.