New model legislation introduced by the National Conference of Commissioners on Uniform State Laws (Uniform Law Commission) seeks to give property owners the right to the airspace above their property from 200 feet and below. In 1946, the U.S. Supreme Court decided that the airspace belonged to the federal government; in 1962, a court decision affirmed that federal law pre-empted local laws when it comes to aviation.
The model legislation seeks to regulate a largely unregulated area—the lowest reaches of the national airspace. Section 49 of the U.S. Code states that the Federal Aviation Administration (FAA) has the power to regulate “navigable airspace.” However, “navigable airspace” was never really defined. In 1946, the U.S. Supreme Court decided that the airspace belonged to the federal government; in 1962, a court decision affirmed that federal law pre-empted local laws when it comes to aviation. The FAA’s commercial drone usage regulations (Part 107) restrict, in most cases, drone operators to 400 feet or less. This proposed legislation assigns the lower 200 feet of airspace to state governments for the purpose of creating an aerial trespass offense. Therefore under this proposed legislation if a drone operator flew over a yard at 199 feet, they would be trespassing. The proposed legislation mirrors land-trespass in that it would make the drone operator liable for trespass “irrespective of whether he… causes harm to any legally protected interest of the other.”
The FAA’s general counsel sent the Uniform Law Commission a letter this week stating that it had misrepresented the FAA’s viewpoints in drafts of its model rule and that “decades” of precedent contradicted what the Uniform Law Commission was trying to accomplish.
It’s possible that the FAA’s letter will end the Uniform Law Commission’s pursuit of this legislation; however, several property rights interest groups and municipalities are supporting it. On the other hand, delivery companies, air traffic control companies and media outlets are strongly against such legislation.
The Uniform Law Commission is scheduled to discuss this proposed legislation during their annual meeting this week.