Airports, Droneports, and the New Urban Airspace

By Ravich, Timothy M. | Fordham Urban Law Journal, July 2017 | Go to article overview

Airports, Droneports, and the New Urban Airspace


Ravich, Timothy M., Fordham Urban Law Journal


ABSTRACT

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. …

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Airports, Droneports, and the New Urban Airspace
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